                                  IN THE
                          TENTH COURT OF APPEALS

                                 No. 10-14-00127-CR

MILTON RAY CRAWFORD,
                                                             Appellant
v.

THE STATE OF TEXAS,
                                                             Appellee



                         From the 272nd District Court
                              Brazos County, Texas
                        Trial Court No. 13-04461-CRF-272


                          MEMORANDUM OPINION


      In 1984, Appellant Milton Ray Crawford pled guilty to the offense of sexual assault

and was sentenced to fifteen years in prison. Thereafter, he had two felony convictions

for failing to register as a sex offender, the second one being in Brazos County in 2009.

Crawford registered in 2009, 2010, and 2011. In 2013, Crawford was indicted for the third-

degree felony offense of failing to comply with sex-offender registration. See TEX. CODE

CRIM. PROC. ANN. art. 62.102(b)(2) (West Supp. 2014). The indictment alleged the two

prior convictions for failing to register as enhancements.
       Crawford testified that he thought that sex-offender registration was unfair to him

because it had not been required in 1984, and that in 2011, he received legal advice from

a legal-aid line that he did not have to register. He also believed that sex-offender

registration was not applicable because his conviction was not for the offense of

indecency with a child. In August of 2011, Crawford told Carla Field, who is responsible

for sex-offender registration in Brazos County, that he would no longer register, and she

told him that he was required to register for the rest of his life. Crawford admitted that

he did not register in March of 2012, which led to the instant charge. A jury found

Crawford guilty. He pled true to the two prior convictions, and the jury, after finding the

prior convictions true, assessed an 85-year prison sentence.          Asserting five issues,

Crawford appeals.

       In his first issue, Crawford contends that the 85-year sentence is illegal because the

punishment range was improperly enhanced under Penal Code section 12.42(d), which

provides a punishment range of 25 to 99 years or life for habitual offenders:

               (d) Except as provided by Subsection (c)(2) or (c)(4), if it is shown on
       the trial of a felony offense other than a state jail felony punishable under
       Section 12.35(a) that the defendant has previously been finally convicted of
       two felony offenses, and the second previous felony conviction is for an
       offense that occurred subsequent to the first previous conviction having
       become final, on conviction the defendant shall be punished by
       imprisonment in the Texas Department of Criminal Justice for life, or for
       any term of not more than 99 years or less than 25 years. A previous
       conviction for a state jail felony punishable under Section 12.35(a) may not
       be used for enhancement purposes under this subsection.

TEX. PENAL CODE ANN. § 12.42(d) (West Supp. 2014). In his second issue, Crawford

asserts that he was harmed by the improper enhancement because the jury was


Crawford v. State                                                                         Page 2
improperly charged on the punishment range; instead, he asserts that enhancement

should have been to a second-degree felony.

       Crawford asserts that enhancement could only be done under article 62.102(c),

which provides:

                If it is shown at the trial of a person for an offense or an attempt to
       commit an offense under this article that the person has previously been
       convicted of an offense or an attempt to commit an offense under this
       article, the punishment for the offense or the attempt to commit the offense
       is increased to the punishment for the next highest degree of felony.

TEX. CODE CRIM. PROC. ANN. art. 62.102(c).

        Crawford acknowledges that two of our sister courts have addressed this issue

adversely to his position but contends that they were wrongly decided or dicta. See Reyes

v. State, 96 S.W.3d 603, 605 (Tex. App.—Houston [1st Dist.] 2002, pet. ref’d) (“As such,

article 62.10(c) [now 62.102(c)] provides a very specific exception to the general

enhancement statute, but does not otherwise preclude the application of section 12.42.”).

              Appellant also argues that section 12.42(b) cannot be used to enhance
       his punishment because article 62.102 includes a unique punishment-
       enhancement section. Article 62.102(c) provides that an offender’s
       punishment level is increased to the next highest felony if he is found guilty
       of a failure-to-register offense and has previously been convicted of a
       failure-to-register offense. TEX. CODE CRIM. PROC. ANN. art. 62.102(c). The
       Court of Criminal Appeals recently agreed that article 62.102(c) is a
       punishment-enhancement provision and does not enhance the offense level
       of the charged offense. See Ford, 334 S.W.3d at 231-35. However, article
       62.102(c) is not implicated in appellant’s case because his punishment was
       not enhanced by a prior failure-to-register conviction, but by his prior
       aggravated-assault conviction. Moreover, we reject appellant’s contention
       that inclusion of subsection (c) to article 62.102 precludes the application of
       section 12.42(b) to enhance a defendant’s punishment for a failure-to-
       register conviction. We agree that a prior failure-to-register conviction could
       have been used to enhance appellant’s punishment to a first-degree felony under
       either article 62.102(c) or section 12.42(b). Thus, there is some overlap

Crawford v. State                                                                         Page 3
        between these statutes. However, punishment enhancement under article
        62.102(c) is not merely repetitive of that provided by section 12.42. For example,
        although article 62.102(c) provides for punishment enhancement to the next
        highest felony degree when the defendant has one prior failure-to-register
        conviction, under certain subsections of section 12.42, punishment for a failure-to-
        register conviction may be enhanced only if the defendant has two prior felony
        convictions. Compare TEX. CODE CRIM. PROC. ANN. art. 62.102(c), with TEX.
        PENAL CODE ANN. § 12.42(a)(1), (2). Furthermore, nothing in article 62.102(c)
        suggests that it is the exclusive provision governing punishment enhancement for
        a failure-to-register conviction. Accordingly, we reject appellants argument
        that article 62.102(c) precluded the State’s use of section 12.42(b) to enhance
        his punishment. See Reyes v. State, 96 S.W.3d 603, 605 (Tex. App.—Houston
        [1st Dist.] 2002, pet. ref’d) (rejecting similar argument concerning former
        version of article 62.102(c) and expressing “article 62.10(c) [predecessor of
        article 62.102] provides a very specific exception to the general
        enhancement statute, but does not otherwise preclude the application of
        section 12.42”). We conclude that appellant’s offense level for punishment
        was properly enhanced from a second-degree felony to a first-degree felony
        pursuant to section 12.42(b). See TEX. PENAL CODE ANN. § 12.42(b).

Barker v. State, 335 S.W.3d 731, 738 (Tex. App.—Houston [14th Dist.] 2011, pet. ref’d)

(emphases added).

        We are not persuaded that Barker and Reyes misstate the law. We hold that

Crawford’s sentence is not illegal and that he was not harmed. Issues one and two are

overruled.

        In issue three, Crawford asserts that the trial court abused its discretion by

allowing Crawford’s 1984 sexual-assault conviction “to serve quadruple duty in his

conviction and punishment assessed.”1 Largely relying on Ballard v. State, 149 S.W.3d 693

(Tex. App.—Austin 2004, pet. ref’d), Crawford contends that “having used Crawford’s


1
 Crawford alleges that the “quadruple duty” consisted of the 1984 sexual-assault conviction first serving
as the reportable conviction that gave rise to his duty to register. Second, it served as the sexually violent
offense that determined the term and frequency of his duty to register and thus made his failure to comply
a third-degree felony. The third and fourth duties were its serving as the basis on which prosecution was
brought for the two prior failure-to-register convictions.

Crawford v. State                                                                                      Page 4
1984 sexual assault conviction to prove that he had a duty to register as a sex offender (to

prove, in other words, that Crawford had the status of being required to register), the

State could not also use that conviction or a conviction derived therefrom to enhance his

punishment.”

       But as the State points out, in Ballard, the court held that the prohibited use of the

underlying sexual-assault conviction was as one of the two prior felony convictions to

punish the appellant as a habitual offender under Penal Code section 12.42(d). Id. at 696.

Crawford’s underlying sexual-assault conviction was not used to enhance his

punishment, as had been done in Ballard. We thus overrule issue three.

       Issues four and five contend that the trial court abused its discretion by failing to

grant a mistrial when the State twice allegedly made improper arguments in the

punishment phase. Proper jury argument includes: (1) summation of the evidence

presented at trial; (2) reasonable deduction drawn from that evidence; (3) answer to the

opposing counsel’s argument; or (4) a plea for law enforcement. York v. State, 258 S.W.3d

712, 717 (Tex. App.—Waco 2008, pet. ref’d) (citing Jackson v. State, 17 S.W.3d 664, 673 (Tex.

Crim. App. 2000)).

               The denial of a motion for mistrial, appropriate for “highly
       prejudicial and incurable errors,” is reviewed for abuse of discretion.
       Simpson v. State, 119 S.W.3d 262, 272 (Tex. Crim. App. 2003). We consider
       three factors when determining whether the trial court abused its discretion
       in overruling a motion for mistrial during punishment: (1) the severity of
       the misconduct (prejudicial effect); (2) curative measures; and (3) the
       certainty of the punishment assessed absent the misconduct (likelihood of
       the same punishment being assessed). Perez v. State, 187 S.W.3d 110, 112
       n.1 (Tex. App.—Waco 2006, no pet.) (quoting Hawkins v. State, 135 S.W.3d
       72, 77 (Tex. Crim. App. 2004)).


Crawford v. State                                                                      Page 5
Id. at 716.

       In issue four, Crawford alleges that the State improperly argued that the jury

should apply parole law to any sentence assessed against Crawford. In the punishment

phase, the prosecutor argued:

       So, I'm going to tell you right now, we’re asking for the high end of this
       sentence; and I'm going to take this time because the question will come up
       during your deliberations, I anticipate, what's the difference between 99
       years and life? The difference is that with the 99-year sentence, it is
       mathematically possible that he could get off of parole. With life, it’s not.

       Crawford objected, and the trial court sustained the objection and instructed the

jury to disregard the statement. Crawford then moved for a mistrial, which the trial court

denied.

       Citing an unpublished opinion, the State contends that the argument was not

improper.2 The State alternatively argues that the instruction to disregard cured any

error. We assume without deciding that the argument was improper, but we find that,

because the trial court’s prompt instruction to disregard cured any error, denying the

motion for mistrial was not an abuse of discretion. See at 716-17. Issue four is overruled.

       In issue five, Crawford asserts that the trial court abused its discretion by failing

to grant a mistrial when the State allegedly made an improper argument about Crawford

being a danger to every child he is around. In the punishment phase, the prosecutor

argued:

             You know what kind of man he is. You know where he belongs.
       Because on the streets of our community, he is nothing but a danger to


2
  Sepulveda v. State, No. 13-07-00627-CR, 2009 WL 1677530 (Tex. App.—Corpus Christi Feb. 12, 2009, pet.
ref’d) (mem. op., not designated for publication).

Crawford v. State                                                                               Page 6
       every single person he comes into contact with, to every single female that
       walks the streets, to every child that he’s around, he is a danger. Not only
       because - -

       The trial court sustained Crawford’s objection that the argument about children

was outside the evidence and promptly instructed the jury to disregard it. The trial court

then denied Crawford’s motion for mistrial.

       In the punishment phase, Crawford’s niece Kim testified that she had not had an

objection to Crawford’s possibly living with her in the past and that she would not have

any concern about Crawford being around her one-year-old daughter because he had

“never tried anything with us or any other family members.” The State thus asserts that

the argument at issue was a proper response to this testimony. We agree, and we further

find that if any error occurred, it was cured by the trial court’s prompt instruction to the

jury to disregard it. Issue five is overruled.

       Having overruled all of Crawford’s issues, we affirm the trial court’s judgment.




                                                 REX D. DAVIS
                                                 Justice

Before Chief Justice Gray,
       Justice Davis, and
       Justice Scoggins
Affirmed
Opinion delivered and filed September 24, 2015
Do not publish
[CRPM]




Crawford v. State                                                                     Page 7
