                                                                                     PD-0794-15
                                                                    COURT OF CRIMINAL APPEALS
                                                                                    AUSTIN, TEXAS
                                                                  Transmitted 10/15/2015 4:54:18 PM
                                                                    Accepted 10/16/2015 7:08:53 AM
October 16, 2015                                                                     ABEL ACOSTA
                               NO. PD-0794-15                                                CLERK


                             IN THE
                   COURT OF CRIMINAL APPEALS
                            OF TEXAS

                      **************************

                            ESSIE D. HOPKINS
                              Appellant/Petitioner
                                      vs.
                         THE STATE OF TEXAS,
                            Appellee/Respondent
                    *********************************

                                On Appeal from
                            the 291st District Court
                             Dallas County, Texas
                     Trial Court Cause No. F-13-55764-U
                                      and
          The Court of Appeals for the Fifth District of Texas at Dallas
                    Appellate Cause No. 05-14-00146-CR
                 ***********************************
                             BRIEF OF APPELLANT
                         UPON GRANT OF PETITION
                        FOR DISCRETIONARY REVIEW

                                            Lawrence B. Mitchell
                                            SBN 14217500
                                            P.O. Box 797632
                                            Dallas, Texas 75379
                                            Tel. No. 214.870.3440
                                            E-mail: judge.mitchell@gmail.com

                                            Attorney for Petitioner/Appellant
           IDENTITY OF JUDGE, PARTIES, AND COUNSEL

PRESIDING JUDGE:    The Honorable Jennifer Balido, 291st District Court
                    Dallas County, Texas

PARTIES:            Essie D. Hopkins, Appellant/Petitioner

                    The State of Texas, Appellee/Respondent

Counsel:            Trial counsel for appellant:
                    Larry Baraka, 1215 E. McKinney Street, Ste. 203
                    Denton, Texas 76209

                    Appellate Counsel for appellant:
                    Lori Ordiway (now employed by the Dallas County
                    District Attorney’s Office)
                    133 N. Riverfront Blvd., Dallas, Texas 75207

                    Petition for Discretionary Review Counsel:
                    Lawrence B. Mitchell, P.O. Box 797632,
                    Dallas, Texas 75379

                    Trial counsel for the State:
                    Assistant District Attorneys:
                    Jeff Matovich and Robin Pittman
                    133 N. Riverfront Blvd., Dallas, Texas 75207

                    Appellate and Petition counsel for the State:
                    Assistant District Attorney Patricia Noble;
                    Susan Hawk, Criminal District Attorney, Dallas County,
                    Texas or her designated representative,
                    133 N. Riverfront Blvd., Dallas, Texas 75207




                                   i
                                       TABLE OF CONTENTS

Identity of Judge, Parties, and Counsel......................................................................i

Table of Contents ......................................................................................................ii

Index of Authorities..................................................................................................iii

Statement of the Case ..............................................................................................2

Issue Presented...........................................................................................................2

                                                            I.

                   THE EVIDENCE IS LEGALLY INSUFFICIENT TO
                   PROVE THE ENHANCEMENT ALLEGATIONS AND TO
                   ENHANCE APPELLANT’S PENALTY RANGE TO THAT
                   OF AN HABITUAL OFFENDER


Statement of Facts......................................................................................................3

Summary of the Argument.........................................................................................4

Argument....................................................................................................................5

Prayer for Relief.........................................................................................................9

Certificate of Word-Count Compliance..................................................................10

Certificate of Service...............................................................................................10




                                                             ii
                                    INDEX OF AUTHORITIES

                                                     Cases:

Derichsweiler v. State, 359 S.W.3d 342 (Tex. App. - Ft. Worth 2012)..................5

Ex Parte Rich, 194 S.W.3d 508 (Tex. Crim. App. 2006)..........................................8

Jordan v. State, 256 S.W.3d 286 (Tex. Crim. App. 2008)........................................6

Mikel v. State, 167 S.W. 3d 556 (Tex. App. - Houston [14th Dist.] 2005)...............8

Roberson v. State, 420 S.W.3d 832 (Tex. Crim. App. 2013)....................................7

Sanders v. State, 785 S.W. 2d 445 (Tex. App. - San Antonio 1990)........................8

Tomlin v. State, 722 S.W.2d 702 (Tex. Crim. App. 1987)........................................5

Wilson v. State, 671 S.W.2d 524 (Tex. Crim. App. 1984)........................................6

                                                 STATUTES:

TEX. PENAL CODE §12.42 (d)..................................................................................5

TEX. PENAL CODE §29.03 (a) (2) & (b)..................................................................2


                              Texas Rules of Appellate Procedure:


TEX. R. APP. P. 9.4 (i) (3)......................................................................................10

TEX. R. APP. P. 9.4 (i) (1).......................................................................................10

TEX. R. APP. P. 9.4 (i) (2) (B)................................................................................10


                                                        iii
                                 NO. PD-0794-15

                              IN THE
                    COURT OF CRIMINAL APPEALS
                             OF TEXAS

                        **************************

                              ESSIE D. HOPKINS
                                Appellant/Petitioner
                                        vs.
                           THE STATE OF TEXAS,
                             Appellee/Respondent
                     *********************************

                                 On Appeal from
                             the 291st District Court
                              Dallas County, Texas
                      Trial Court Cause No. F-13-55764-U
                                       and
           The Court of Appeals for the Fifth District of Texas at Dallas
                     Appellate Cause No. 05-14-00146-CR
                  ***********************************

TO THE HONORABLE JUDGES OF THE COURT OF CRIMINAL APPEALS:

      COMES NOW Essie D. Hopkins, appellant herein, and respectfully submits

this his brief on appeal and petition from his conviction for the offense of Aggravated

Robbery. Judgement was rendered in the 291st District Court of Dallas County, Judge

Jennifer Balido presiding.



                                          1
                       STATEMENT OF THE CASE

      In Cause No. F13-55764-U at trial and Cause No. 05-14-00146-CR on appeal,

appellant was charged by indictment returned by the Dallas County Grand Jury with

the first degree felony offense of Aggravated Robbery. The case was assigned to the

291st Judicial District Court for disposition. The indictment alleged an offense

prohibited by TEX. PENAL CODE §29.03 (a) (2) & (b). The penalty range was

enhanced with allegations of two previous felony convictions. [CR: 14, 17].

Appellant entered a plea of “Not Guilty” before the jury. [RR 3: 9, 12-13]. Based

upon appellant’s plea and the evidence presented, the jury found appellant guilty of

the offense of Aggravated Robbery. [CR: 36: RR 4: 53].

      Punishment issues were submitted to the district court. Appellant entered a plea

of “True” to both enhancement allegations. The district court entered a “True” verdict

to each of the enhancement allegations and punishment was set at confinement in the

penitentiary for life. Notice of appeal was timely given. [CR: 43].


                             ISSUE PRESENTED

                                         I.

             THE EVIDENCE IS LEGALLY INSUFFICIENT TO
             PROVE THE ENHANCEMENT ALLEGATIONS AND TO
             ENHANCE APPELLANT’S PENALTY RANGE TO THAT
             OF AN HABITUAL OFFENDER

                                          2
                            STATEMENT OF FACTS

      Appellant was indicted for the first degree felony offense of Aggravated

Robbery. The indictment alleged a single enhancing paragraph containing one felony

conviction. [CR: 14]. In a separate pleading the State alleged another felony

conviction. [CR: 17]. At trial appellant entered a plea of “True” to both enhancement

allegations. [RR 5: 7-8]. The State did not offer penitentiary packets to provide proof

of the prior convictions.

      The enhancement allegation in the indictment alleged that the prior conviction,

for aggravated assault, occurred prior to the commission of the offense “...set out

above...” clearly referring to the indicted offense. [CR: 14]. The date alleged was

August 29, 2003 and the convicting court was the 195th District Court of Dallas

County, Texas.

      The notice pleading is not so clear as to the date of conviction or the sequence

of the conviction as related to the indicted offense or the indictment’s enhancement

allegation. [CR: 17]. That pleading alleges that “...prior to the commission of the

“aforesaid offense” appellant was convicted of the offense of aggravated assault on

“January 4th” in Criminal District Court No. 3 in Dallas County, Texas. Whether the

“aforesaid offense” is the offense for which appellant was indicted or the offense for

which he was previously convicted is not specifically pled.         Beyond question,

                                          3
though, the pleading fails to state the date of the prior conviction other than the

reference to a month and a day without a reference to the year of the conviction.

                    SUMMARY OF THE ARGUMENT

      Even though appellant plead “True” to the two prior convictions alleged for

enhancement of the penalty range, the evidence is legally insufficient to prove the

proper sequencing of the two felony convictions as legally required since the second

enhancement allegation provided a date consisting only of a month (January) and a

day (the 4th). The State’s evidence did not prove that one prior conviction was final

before the other prior conviction or before the primary charged offense.




                                         4
                                  ARGUMENT

      The law concerning sufficiency of the evidence to prove enhancement for

habitual felony offenders is well settled. TEX. PENAL CODE §12.42 (d) provides, in

pertinent part:

             [I]f it is shown on the trial of a felony offense other than a
             state jail felony ... 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 he shall be punished by imprisonment
             in the Texas Department of Criminal Justice for life, or for
             any term of not more than 99 years nor less than 25 years.

Thus, the statute requires the State to prove this chronological sequence of events:

             (1) the first conviction becomes final;

             (2) the offense leading to a later conviction is committed;

             (3) the later conviction becomes final;

             (4) the offense for which the defendant presently stands
             accused is committed.

See Tomlin v. State, 722 S.W.2d 702, 705 (Tex. Crim. App. 1987). This proof is

required even though the State need not allege sequentiality in the pleading

documents. See Derichsweiler v. State, 359 S.W.3d 342, 349 (Tex. App. - Ft. Worth

2012).

      In the instant cause, the indictment properly alleged that appellant had

                                           5
committed and been convicted of a felony offense prior to the commission of the

primary offense alleged in the indictment. However, the second enhancement

pleading did not allege that a second conviction was committed and final before

either the primary offense or the other enhancement allegation. The plea to the second

enhancement allegation did not prove that it was final before the primary offense or

the other enhancement allegation. Appellant’s plea of “True” to the second

enhancement offense admitted the conviction but not when the conviction was

obtained or became final. Appellant’s pleas of “True,” without other evidence, did

not prove that the two enhancing allegations were sequential [i.e, conviction,

commission, conviction]. See Jordan v. State, 256 S.W.3d 286, 290-91 (Tex. Crim.

App. 2008).

      In resolving the issue below, the court of appeals cited to only two prior

decisions by this Honorable Court. The first is irrelevant to the issue presented and

the second, in fact, is favorable to appellant’s complaint.

      The first case cited by the court of appeals was Wilson v. State, 671 S.W.2d

524, 526 (Tex. Crim. App. 1984). While the court of appeals correctly notes that the

case stands for the proposition that a plea of “True” is evidentiary in nature and

sufficient to prove an enhancement allegation, it does not resolve the issue presented

by appellant or even address it. Wilson’s information (he was charged with a

                                          6
misdemeanor offense) contained only a single enhancement allegation. The question

as to whether a plea of “True” to two sequential enhancement allegation was

sufficient to prove the sequence of the convictions was not presented nor resolved in

the Wilson appeal.

      The court of appeals cited to a second case for the proposition that an appellant

who pleads true to enhancement allegations and and the sequence of the convictions,

relieves the State from the burden of proving the prior convictions. See Roberson

v. State, 420 S.W.3d 832, 838 (Tex. Crim. App. 2013). By implication Roberson

holds that a plea of true, standing alone, is not sufficient evidence to prove the

sequence of the enhancement allegations.

      In Roberson the defendant was accused by an indictment with a felony offense

which also contained two allegations of prior felony convictions. However, the

enchantment allegations were transposed: the older conviction was alleged first and

the newer conviction was alleged second. When the indictment allegations were read

to the jury, the prosecutor read them in reverse order so that the newer conviction

was read first followed by the older conviction. The defendant pled “True” to both

allegations as read by the prosecutor.

      Roberson argued on direct appeal, and then by way of Petition for

Discretionary Review, that the evidence did not prove the proper sequence of the

                                          7
convictions because of the order in which they were pled in the indictment. The court

of appeals, as did this Honorable Court, found against Roberson. However, the basis

of the rulings was not that the proper sequence of conviction was proven by the

“True” pleas. Rather the court of appeals and this Court looked to the evidentiary

record to determine if the proper sequence had been proven. Both courts held that the

record affirmatively established that Roberson’s prior convictions met the statutory

chronology requirement for the habitual offender punishment range. Roberson’s

record evidence contained penitentiary packets that established that the two

convictions did in fact occur in the required order. “Thus the state met its burden as

the evidence is sufficient to prove the statutorily required sequence of conviction in

order for (Roberson’s) punishment range to be enhanced to that of a habitual

offender.” Roberson, 420 S.W.3d at 840. The pleas of “True” standing alone did not,

in that case, prove the proper chronology.

      In Ex Parte Rich, 194 S.W.3d 508, 513 (Tex. Crim. App. 2006) this Court

states the general rule that a plea of “True” to an enchantment allegation relieves the

State of its burden of proving the prior conviction. However, the Court recognized

that there was an exception to that general rule “...when the record affirmatively

reflects that the enhancement itself was improper.” Id; also see Mikel v. State, 167

S.W. 3d 556, 558-59 (Tex. App. - Houston [14th Dist.] 2005) and Sanders v. State,

                                           8
785 S.W. 2d 445, 448 (Tex. App. - San Antonio 1990).

      In the instant cause, the enhancing pleading failed to contain a reference to the

year date of the second enhancing conviction. The State did not offer any evidence

into the record that proved the proper chronology of the two convictions. Since the

record affirmatively establishes that the State did not prove the appropriate

chronology of the enhancing offenses,         appellant argues that the evidence is

insufficient to prove the second allegation. Therefore, appellant is entitled to a new

punishment hearing.


                           PRAYER FOR RELIEF

      Appellant prays that this Honorable Court find the evidence insufficient to

prove the second enhancement allegation and that the case be reversed and remanded

to the district court for a new punishment hearing.

                                       Respectfully submitted,

                                       /s/Lawrence B. Mitchell

                                       Lawrence B. Mitchell
                                       SBN 14217500
                                       P.O. Box 797632
                                       Dallas, Texas 75379
                                       214.870.3440
                                       judge.mitchell@gmail.com

                                       Counsel for Petitioner/Appellant

                                          9
             CERTIFICATE OF WORD-COUNT COMPLIANCE

      I hereby certify, in compliance with Rule 9.4 (i) (3) of the Texas Rules of

Appellate Procedure, that this document contains 1,604 words, including all contents

except for the sections of the Petition to be excluded by Rule 9.4 (i) (1) of the Texas

Rules of Appellate Procedure, and in compliance with Rule 9.4 (i) (2)(B) of the Texas

Rules of Appellate Procedure.

                                        /s/ Lawrence B. Mitchell



                          CERTIFICATE OF SERVICE

      I hereby certify that a true and correct copy of this Brief is being served of this

the 15th day of October,     2015 via the service function in eFile Texas, on the

attorneys for the State: (1) Patricia Noble, Assistant District Attorney, Dallas County,

Texas to pnoble@dallascounty.org and (2) the State Prosecuting Attorney at

information@spa.texas.gov.



                                        /s/ Lawrence B. Mitchell




                                          10
