                                                                               ACCEPTED
                                                                           06-14-00110-CR
                                                                SIXTH COURT OF APPEALS
                                                                      TEXARKANA, TEXAS
                                                                     4/27/2015 12:00:00 AM
                                                                          DEBBIE AUTREY
                                                                                    CLERK

              CAUSE NUMBER 06-14-00110-CR
                         IN THE
                   COURT OF APPEALS                 FILED IN
                                             6th COURT OF APPEALS
       SIXTH APPELLATE JUDICIAL DISTRICT OF TEXAS
                                               TEXARKANA, TEXAS
                 AT TEXARKANA, TEXAS         4/27/2015 8:36:00 AM
                                                      DEBBIE AUTREY
                                                         Clerk




APPEAL FROM THE 8TH JUDICIAL DISTRICT OF FRANKLIN COUNTY,
                          TEXAS

                    Trial Cause No. 1423904

                   CODY LANG THOMAS
                        Appellant

                              V.

                   THE STATE OF TEXAS,
                         Appellee


                   BRIEF FOR APPELLANT




                                        Martin Braddy
                                        Attorney at Law
                                        SBN 00796240
                                        121 Oak Ave., Suite A
                                        Sulphur Springs, Texas 75482
                                        (903) 885-2040
                                        (500) 885-2704 fax




                              1
                              IDENTITY OF PARTIES

      Pursuant to Texas Rule of Appellate Procedure 38(a), the following is a list

of all parties to the trial court’s judgment and the names and addresses of all trial

and appellate counsel:

APPELLANT:
Cody Lang Thomas
                                                    Appellate Counsel
                                                    Martin Braddy
                                                    121 Oak Avenue, Suite A
                                                    Sulphur Springs, TX 75482
                                                    (903) 885-2040
                                                    (903) 500-2704 fax

                                                    Trial Counsel
                                                    Wade Forsman
                                                    Post Office Box 918
                                                    Sulphur Springs, TX 75482

APPELLEE:
The State of Texas
                                                    Honorable Will Ramsay
                                                    District Attorney
                                                    8th Judicial District
                                                    110 Main Street
                                                    Sulphur Springs, TX 75482
                                                    (903) 885-0641
                                                    (903) 885-0640 fax

TRIAL COURT:
8th Judicial District Court
Hopkins County, Texas
                                                    Judge Eddie Northcutt
                                                    118 Church St.
                                                    Sulphur Springs, TX 75482
                                                    Phone: (903) 438-4022


                                         2
                                       TABLE OF CONTENTS

 Table of Contents                                                                                3

 Index of Authorities                                                                            4-5

 Statement of the Case                                                                            6

 Issues Presented                                                                                 6

 Statement of Facts                                                                               6


 Summary of Argument                                                                              8

 Argument                                                                                         9

    I. Trial Court Improperly Increased Appellant’s Punishment Range to a Second Degree Felony    9

     A. Standard of Review                                                                        9


     B. Preservation of Error                                                                    10



    C. Penal Code Section 12.425(b)



    D. Level of Offense vs. Level of Punishment



    E. Analysis



Conclusion and Prayer



 Certificate of Service                                                   18




                                                        3
                                    INDEX OF AUTHORITIES

Cases

Boykin v. State, 818 S.W.2d 782, 785 (Tex.Crim.App.1991)                                    10
Brooks v. State, 226 S.W.3d 607, 610 (Tex.App.-Houston [1st Dist.] 2007, no pet.)            9
Clinton v. State, 354 S.W.3d 795, 800 (Tex.Crim.App.2011)                                 9-10

Edwards v. State, 273 S.W.3d 919, 921 (Tex.App.-Houston [14th Dist.] 2009, no pet.)           9
Ex Parte Reinke, 370 S.W.3d 387, 389 (Tex. Crim. App. 2012)                                  14
Ford v. State, 334 S.W.3d 230, 231 (Tex. Crim. App. 2011)                             13-14, 15
Sims v. State, 84 S.W.3d 768, 779 (Tex.App.-Dallas 2002, pet. ref'd)                          9
Speth v. State, 6 S.W.3d 530, 532–33 (Tex.Crim.App.1999).                                    10
State v. Jimenez, 148 S.W.3d 574, 576 (Tex.App.-El Paso 2004, pet. ref'd)                     9
State v. Webb, 12 S.W.3d 808, 811–12 (Tex.Crim.App.2000)                                 14, 15
Williams v. State, 253 S.W.3d 673, 677 (Tex.Crim.App.2008)                                    9
Statutes
Tex. Penal Code Ann. § 12.42(a)(1) (West)                                                12-13
Tex. Penal Code Ann. § 12.425 (West)                                                      10
Tex. Penal Code Ann. § 12.35(a) (West)                                                   12, 15
Tex. Penal Code Ann. § 30.02 (West).                                                     11-12




                                                        4
                          STATEMENT OF THE CASE

      Appellant was indicted in Cause Number 1423904 for Engaging in

Organized Criminal Activity alleging the underlying offense as theft of property

valued at $1,500.00 or more, but less than $20,000.00, a state jail felony.

Appellant pled “guilty” to the lesser included offense of theft and elected the trial

court to set the punishment. Appellant further pled “true” to two enhancement

allegations. The trial court found Appellant guilty and the enhancement allegations

true and set the punishment at twenty years in the Institutional Division of the

Texas Department of Criminal Justice and assessed a fine of $0.00. The trial court

certified Appellant’s right to appeal and Appellant timely filed a Notice of Appeal.

                              ISSUES PRESENTED


      Did the trial court sentence Appellant outside of the applicable punishment

range?


                          STATEMENT OF FACTS


   On March 17, 2014 Appellant was indicted for the felony offense of engaging in

organized criminal activity alleged to have occurred on November 23, 2013. (CR

pg. 4). The indictment does not allege prior felony convictions for purposes of

enhancement. On May 8, 2014, the trial court conducted a pretrial hearing and

admonished Appellant as to the applicable punishment ranges depending on the


                                          5
allegations in the indictment and the possibility of proof regarding previous felony

convictions. (RR Vol. 2 pg. 4-7). Appellant acknowledged his understanding of all

the possible punishment ranges. (RR Vol. 2 pg. 7). The trial court also disclosed

his personal involvement with Appellant, including his personal knowledge with

regards to Appellant’s prior incarceration. (RR Vol. 2 pg. 12-13).

   On May 22, 2014, the trial court again admonished Appellant as to the possible

punishment ranges of the charged offense depending on proof and the offense for

which he might be convicted. (RR Vol. 3 pg. 5-6). Appellant pled guilty to the

lesser offense of theft of property valued at $1,500.00 or more, but less than

$20,000.00, a state jail felony.      (RR Vol. 3 pg. 11).        Appellant further

acknowledged that he had been sentenced to the “penitentiary, non state jail, two

separate times.” (RR Vol. 3 pg. 12). The trial court accepted Appellant’s plea of

guilty and found that Appellant has “two prior non-state-jail-felony convictions

which would enhance the punishment range … to 2 to 20.” (RR Vol. 3 pg. 16).

      On June 11, 2014, the State of Texas filed its “Notice of State’s Intent to

Enhance Punishment Range” alleging:

      1. Prior to commission of the offense in the indictment, defendant was

         finally convicted of the felony offense of Escape While Arrested, on 18th

         day of August, 2004, A.D., in the 402nd District Court of Wood County,

         Texas;


                                         6
         2. Prior to commission of the offense in the indictment, defendant was

      finally convicted of the felony offense of Burglary of a Building, on 24th day

      of June, 20 10, A.D., in Cause Number 0921040 on the docket of the 8th

     Judicial District Court of Hopkins County, Texas.
(CR pg. 28). After that, the trial court conducted the punishment trial in the case at

which it inquired of Appellant as to the truth of the enhancement allegations. (RR

Vol. 4 pg. 11-12). At the trial, the State did not offer the “pen packets” or

judgements of the prior conviction, but instead relied upon Appellant’s plea of true

and his testimony. The trial court sentenced Appellant to twenty years and no fine.

(RR Vol. 4 pg. 108). Appellant filed notice of Appeal. (Suppl. CR pg. 1).

                          SUMMARY OF ARGUMENT

   Appellant’s twenty year sentence for a state jail felony, punishable under

12.35(a) of the Texas Penal Code was not authorized by law. The trial court’s use

of Penal Code Section 12.425(b) to increase Appellant’s punishment range was not

permissible. (CR pg. 24). Appellant pled true to having been previously finally

convicted of Burglary of a Building, a state jail felony punishable under 12.35 (a)

of the Penal Code. Appellant’s burglary conviction appears to have been punished

as a third degree felony pursuant to a previous version of Section 12.42 of the

Penal Code. The enhancement did not increase the offense level from a state jail

felony, but merely increased the punishment level to a third degree felony.

Therefore, Appellant’s sentence was outside of the applicable punishment range.
                                          7
                                    ARGUMENT


I.     TRIAL COURT IMPROPERLY ENHANCED APPELLANT’S

       PUNISHMENT RANGE TO A SECOND DEGREE FELONY
       The trial court improperly used Penal Code 12.425(b) to increase Appellant’s

punishment range from a state jail felony to that of a second degree. The trial

court’s interpretation of the statute was incorrect.
       A. Standard of Review
       Issues of statutory interpretation are reviewed de novo. Williams v. State,

253 S.W.3d 673, 677 (Tex.Crim.App.2008); Edwards v. State, 273 S.W.3d 919,

921 (Tex.App.-Houston [14th Dist.] 2009, no pet.); Brooks v. State, 226 S.W.3d

607, 610 (Tex.App.-Houston [1st Dist.] 2007, no pet.) (citing State v. Jimenez, 148

S.W.3d 574, 576 (Tex.App.-El Paso 2004, pet. ref'd)); see also Sims v. State, 84

S.W.3d 768, 779 (Tex.App.-Dallas 2002, pet. ref'd) (applying de novo review in

considering propriety of prior offense for use in sentencing enhancement). “When

interpreting statutory language, we focus on the collective intent or purpose of the

legislators who enacted the legislation,” starting with the text itself, which

“provides the best means to determine the fair, objective meaning of that text at the

time   of   its   enactment.”     Clinton      v.   State,   354   S.W.3d   795,   800

(Tex.Crim.App.2011)     (citing   Boykin       v.   State,   818   S.W.2d   782,   785

(Tex.Crim.App.1991). We construe an unambiguous statute according to its plain




                                           8
meaning, unless such construction creates an “absurd result.” Clinton v. State, 354

S.W.3d 795, at 800.
     B. Preservation of Error
     A defendant has an absolute and unwaivable right to be sentenced with the

range   provided    by    law.     Speth       v.   State,   6   S.W.3d   530,   532–33

(Tex.Crim.App.1999). Therefore, no objection at the trial court level was required

to preserve the error for appeal.
       C. Penal Code Section 12.425(b)
       The trial court utilized Section 12.425(b) to increase Appellant’s punishment

level. That Section allows for a state jail felony to have its punishment range

increased to that of felony of the second degree under certain circumstances.

Specifically, it states:
       “(b) If it is shown on the trial of a state jail felony punishable under Section

        12.35(a) that the defendant has previously been finally convicted of two

        felonies other than a state jail felony punishable under Section 12.35(a), 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 for a felony of the second

       degree.”
Tex. Penal Code Ann. § 12.425 (West). To have the punishment increased under

this section the State must prove that a defendant, convicted of a 12.35(a) state jail

felony, has been finally convicted of two prior felonies that were not 12.35(a) state

jail felonies. Here, the trial court found that Appellant’s convictions for Escape, a


                                           9
third degree felony, and Burglary of a Building, normally a state jail felony,

satisfied these requirements.    The trial court’s reasoning was that since the

Burglary of a Building was enhanced, then it was no longer a “state jail felony

punishable under Section 12.35(a).” (RR Vol. 4 pg. 11-12). However, the trial

court failed to properly apply the analysis set forth by the Court of Criminal

Appeals in determining whether an enhancement increases the level of offense or

merely the level of punishment.
      D. Level of Offense vs. Level of Punishment
      The Court of Criminal Appeals has held that the controlling question in

deciding this issue is whether the enhancement provision utilized increases the

level of offense or merely the level of punishment. That question turns on the

language of the enhancement statute utilized.
                   a. Burglary of a Building
      Burglary of a Building is a state jail offense punishable under 12.35(a) of the

penal code. The record reflects that Appellant was convicted of Burglary of

Building on June 24, 2010 in Wood County, Texas. The Penal Code dictates that

this offense is a state jail felony. Section 30.02 state:
       “(a) A person commits an offense if, without the effective consent of the

      owner, the person:
           (1) enters a habitation, or a building (or any portion of a building)

      not then open to the public, with intent to commit a       felony, theft, or an

      assault; or
      (c) Except as provided in Subsection (d), an offense under this section is a:



                                         10
             (1) state jail felony if committed in a building other than a

            habitation;”
Tex. Penal Code Ann. § 30.02 (West).
      Burglary of a Building, without application of the statutory aggravating

circumstances, would be punishable under 12.35(a) of the Penal Code. Penal Code

Section 12.35 state:
      “(a) Except as provided by Subsection (c), an individual adjudged guilty of a

      state jail felony shall be punished by confinement in a state jail for any term

      of not more than two years or less than 180 days.”
Tex. Penal Code Ann. § 12.35(a) (West). Subsection (c) provides for aggravating

circumstances that would allow for increasing the punishment level. Tex. Penal

Code Ann. § 12.35(c) (West).         The record does not support a finding that

Appellant’s conviction included the type of aggravating circumstances required to

move the punishment out of subsection (a). Therefore, Appellant’s conviction was

a state jail felony punishable under 12.35(a) without consideration of the effect of

enhancement.
                    b. Previous Version of 12.42(a)
      Appellant’s prior Burglary of a Building conviction was enhanced under the

previous version of 12.42(a) of the Penal Code. The trial court found that due to

Appellant having been twice before convicted of a state jail felony, the punishment

for the Burglary of a Building was enhanced to a third degree and he was

sentenced to three years in prison. (RR Vol. 4 pg. 12, CR pg. 28). The version of

the statute in place at the time of his plea contained the following provision:


                                          11
      (a)(1) If it is shown on the trial of a state jail felony punishable under

      Section 12.35(a) that the defendant has previously been finally convicted of

      two state jail felonies, on conviction the defendant shall be punished for a

      third-degree felony.”
Tex. Penal Code Ann. § 12.42(a)(1) (West). Therefore, this Court must determine

whether the previous version of 12.42(a) increased the offense level or merely the

punishment level.
                    c. Ford v. State
      The Court of Criminal Appeals, in Ford v. State, analyzed the enhance

provisions of Article 62.102 of the Texas Code of Criminal Procedure and its

intended meaning. Ford v. State, 334 S.W.3d 230, 231 (Tex. Crim. App. 2011).

The Court held that enhancement statutes differ depending on whether the offense

level or merely the punishment is enhanced. If the enhancement statute merely

increases the punishment, then future use of the conviction for enhancement

purposes is limited by its original offense level. The Court held that the language

used dictates the result of the enhancement. The Court stated,
      “in Webb we recognized that Penal Code Section 12.42 increases the range

      of punishment applicable to the primary offense; it does not increase the

      severity level or grade of the primary offense. This construction comes from

      the phrase “shall be punished for” that appears throughout Section 12.42.”
Ford v. State, 334 S.W.3d 230, 234-35 (Tex. Crim. App. 2011) citing State v. Webb,

12 S.W.3d 808, 811–12 (Tex.Crim.App.2000). The Court held that since Art.

62.102 had similar language, then it merely increases the punishment and does not
                                        12
change the offense level. Ford v. State, 334 S.W.3d 230, 234-35 (Tex. Crim. App.

2011). Therefore, the conviction, enhanced one punishment level pursuant to Art.

62.102, could not be used to then enhance it another punishment level under 12.42

of the Penal Code.
       In Ex Parte Reinke, the Court of Criminal Appeals reaffirmed its holding in

Ford and Webb that the “shall be punished for” language used in 12.42 increases

the punishment level but does not increase the offense level. Ex Parte Reinke, 370

S.W.3d 387, 389 (Tex. Crim. App. 2012).
     Therefore, a state jail conviction enhanced pursuant to Section 12.42(a)

remains a state jail punishable under 12.35(a), regardless of the punishment level

increase.
      E. Analysis
      Here, Appellant’s previous conviction for Burglary of a Building, enhanced

pursuant to the former version of Section 12.42(a), is a state jail felony punishable

under 12.35(a). As previously discussed, the “shall be punished for” language

contained in the statute does not act to change the level of the offense, but to

merely increase the applicable punishment range. See Ford v. State, 334 S.W.3d

230, 234-35 (Tex. Crim. App. 2011) citing State v. Webb, 12 S.W.3d 808, 811–12

(Tex.Crim.App.2000). Consequently, Appellant’s state jail conviction merely had

its punishment increased, but the “severity level or grade” of the offense remained

the same.
      Appellant’s Burglary of a Building conviction in 2010 is a state jail

conviction punishable under 12.35(a) and, thus, is barred from being used to
                                         13
increase the future punishment pursuant to 12.425(b) of the Penal Code. Thus,

Appellant’s punishment range was a minimum of one hundred eighty days and a

maximum of 2 years in the State Jail. Tex. Penal Code Ann. § 12.35(a) (West).

Since Appellant’s twenty year sentence far exceed the maximum sentence, the trial

court’s sentence was not provided by law for the offense. Therefore, this Court

should reverse Appellant’s sentence and remand to the trial court to conduct a new

sentencing hearing applying the proper punishment range.

                             CONCLUSION AND PRAYER

      It is for the reasons contained herein that Appellant would respectfully pray

that this Court of Appeals for the Sixth District reverse the judgment of sentence of

the Appellant and remand the case to the 8th Judicial District for retrial of the

punishment phase.



                                               Respectfully submitted,




                                               /s/ Martin Braddy
                                               Martin Braddy
                                               Attorney for Appellant
                                               SBN 00796240
                                               121 Oak Ave., Suite A
                                               Sulphur Springs, Texas 75482
                                               (903) 885-2040
                                               (903) 500-2704 fax
                                          14
15
                               CERTIFICATE OF SERVICE

      I hereby certify that a true and correct copy of the above and foregoing

instrument was forwarded to 8TH Judicial District Attorney, Will Ramsay, on this

the 26th day of April, 2015.



                                             /s/ Martin Braddy
                                             Martin E. Braddy




                       WORD COUNT CERTIFICATION

      This document complies with the typeface requirements of Tex. R. App. P.

9.4(e) because it has been prepared in a conventional typeface no smaller than 14-

point for text and 12-point for footnotes. This document also complies with the

word-count limitations of Tex. R. App. P. 9.4(i), if applicable, because it contains

2,211 words, excluding any parts exempted by Tex. R. App. P. 9.4(i)(1).



                                             /s/ Martin Braddy
                                             Martin E. Braddy




                                        16
