          TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                          NO. 03-02-00171-CR



                                   Lionel D. Murphy, Jr., Appellant

                                                     v.

                                     The State of Texas, Appellee


              FROM THE CRIMINAL DISTRICT COURT NO. 2 OF TARRANT COUNTY
               NO. 0809303D, HONORABLE WAYNE F. SALVANT, JUDGE PRESIDING




                Appellant Lionel D. Murphy, Jr. was convicted of aggravated assault with a deadly

weapon. Tex. Pen. Code Ann. ' 22.02(a)(2) (West Supp. 2002). He pleaded true to the enhancement

paragraph, and the jury assessed his punishment at twenty-seven years= confinement in the Texas

Department of Corrections Institutional Division. He raises no complaint relating to the guilt-innocence

phase of trial and does not challenge his conviction. In three point of error, appellant complains that at the

punishment phase of trial the district court erred by: (1) failing to instruct the jury that it could consider

evidence of his previous convictions only if it believed beyond a reasonable doubt that appellant committed

those offenses; (2) allowing appellant=s punishment to be enhanced with a previous felony conviction that he

deems void because it violated the Acarving doctrine@; and (3) permitting the State to introduce evidence of

appellant=s misdemeanor convictions based on offenses committed before January 1, 1996. We will affirm

the district court=s judgment.
                                            BACKGROUND

                In January of 2002, a jury found appellant guilty of the offense of aggravated assault with a

deadly weapon. At the beginning of the punishment phase of trial, appellant presented two oral motions,

neither of which had been filed in writing. Appellant first requested that the enhancement paragraph in the

indictment be struck because it contained a conviction that appellant believed violated the Acarving doctrine@

and was, therefore, void. The district court denied this motion. Then, with regard to the jury charge,

appellant requested a burden of proof instruction as to the enhancement allegation and as to extraneous

offenses that the State would present. The district court took this motion under advisement but did not rule

and did not include a burden of proof instruction in the jury charge.

                Thereafter, appellant pleaded true to the enhancement paragraph, and agreed to the

introduction of evidence of eight previous misdemeanor convictions and the felony conviction set out in the

enhancement paragraph. Appellant also stipulated that he was the person convicted in each instance.

When asked, appellant stated that he had no objection to the court=s charge to the jury.


                                              DISCUSSION

Instruction on State=s Burden of Proof

                Appellant contends that he is entitled to a new punishment hearing because the trial court

erred by failing to give a burden of proof instruction relating to the felony conviction contained in the

indictment=s enhancement paragraph and the eight misdemeanor convictions admitted in evidence. He

contends that the jury should have been instructed that it must find beyond a reasonable doubt that he

committed those offenses in order to consider them with regard to his punishment.

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                 At the punishment phase of trial, the trial court can admit evidence of the defendant=s prior

criminal record. The Texas Code of Criminal Procedure states:


         [E]vidence may be offered by the state and the defendant as to any matter the court deems
         relevant to sentencing, including but not limited to the prior criminal record of the defendant,
         his general reputation, his character, an opinion regarding his character, the circumstances
         of the offense for which he is being tried, and, not withstanding Rules 404 and 405, Texas
         Rules of Criminal Evidence, any other evidence of an extraneous crime or bad act that
         is shown beyond a reasonable doubt by evidence to have been committed by the
         defendant or for which he could be held criminally responsible, regardless of whether he
         has previously been charged with or finally convicted of the crime or act.


Tex. Code Crim. Proc. Ann. art. 37.07, ' 3(a)(1) (West Supp. 2002) (emphasis added).

                 Appellant failed to obtain a ruling on his request for an instruction and affirmatively stated

that he had no objection to the charge as given without it. Appellant nevertheless argues that failure to give

the instruction concerning bad acts or extraneous offenses is jury charge error. See Huizar v. State, 12

S.W.3d 479, 484 (Tex. Crim. App. 2000) (holding that if courts admit evidence of extraneous offenses at

the punishment phase, they must give a reasonable doubt charge, even in the absence of a request or

objection). Additionally, appellant contends that his failure to object to this type of omission does not waive

his right to appeal the issue. See Bluitt v. State, 70 S.W.3d 901, 904 (Tex. App.CFort Worth 2002, no

pet.).

                 The State responds that article 37.07, section 3(a)(1), requires a reasonable doubt

instruction only for evidence of unadjudicated extraneous offenses or bad acts, but not for evidence of a

prior criminal conviction. Sanders v. State, 69 S.W.3d 690, 694 (Tex. App.CTexarkana 2002, pet.

dism=d w.o.j.) (instruction not required for duly recorded convictions); see also Willover v. State, 2002

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Tex. App. LEXIS 5774, at *6 (Tex. App.CHouston [1st Dist.] Aug. 8, 2002, no pet. h.) (concluding that

appellant not entitled to instruction that extraneous crimes and bad acts be proved beyond a

reasonable doubt where prior misdemeanor convictions are not evidence of extraneous crimes

and bad acts). We agree.

                In any event, even assuming 37.07 could be construed to include previous convictions as

extraneous offenses, thus requiring a burden of proof instruction, we would have to determine whether the

lack of such an instruction harmed appellant. See Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim.

App. 1985). If a defendant fails to object to some claimed error in the court=s charge, the reviewing court

will not reverse unless the record demonstrates that the error was so egregiously harmful that the defendant

did not receive a fair and impartial trial. Id.; see also Poole v. State, 974 S.W.2d 892, 900 (Tex.

App.BAustin 1998, no pet.). Appellant pleaded true to the enhancement paragraph containing his prior

felony conviction. He further agreed to admission of evidence of that conviction and of his eight prior

misdemeanor convictions and stipulated that he was the person convicted of these crimes. We therefore

cannot say he suffered egregious harm. See Fails v. State, 999 S.W.2d 144, 148 (Tex. App.CDallas

1999, pet. ref=d) (holding failure to give instruction harmless when defendant admitted committing

extraneous offense). We overrule appellant=s first point of error.




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Introduction of a Void Prior Felony Conviction

                In his second point of error, appellant contends that he is entitled to a new hearing on

punishment because in assessing sentence the district court allowed the jury to consider evidence of a void

felony conviction in which he was convicted in one judgment of both aggravated assault with a deadly

weapon and aggravated assault with serious bodily injury. He asserts the conviction is void for violating the

Acarving doctrine@ because both offenses allegedly arose out of the same incident. Although appellant

makes the assertion, the record contains no evidence to support his contention.

                Appellant=s complaint is directed to the form or substance of the indictment. The conviction

about which he complains was alleged in the enhancement paragraph. To preserve error regarding the

indictment, he must raise his complaint before trial or it is waived. Tex. Code Crim Proc. Ann. art. 1.14(b)

(West Supp. 2002); see also Studer v. State, 799 S.W.2d 263, 268 (Tex. Crim. App. 1990); Watson v.

State, 923 S.W.2d 829, 833 (Tex. App.CAustin 1996, pet ref=d). Because he did not assert his complaint

except by oral motion after a finding of guilt, we hold that appellant waived his complaint.

                Even assuming appellant preserved his complaint, we nevertheless hold that it lacks merit.

Texas previously adhered to the Acarving doctrine,@ which held that where multiple offenses required the

same evidence to convict, or where multiple offenses were part of the same continuous transaction, the

State could Acarve@ only one conviction from the same criminal transaction. See Jackson v. The State, 43

Tex. 421, 423 (1875); see also Quitzow v. The State, 1 Tex. Ct. App. 47, 53-54 (1876). Texas

abandoned the carving doctrine in 1982. Ex parte McWilliams, 634 S.W.2d 815, 822-823 (Tex. Crim.

App. 1982). However, courts cannot retroactively apply the effect of this abandonment. See Ex parte


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Scales, 853 S.W.2d 586, 588 (Tex. Crim. App. 1993). Appellant argues that because the offenses

underlying the conviction alleged in the enhancement paragraph occurred while the doctrine was in effect,

the district court erred in admitting evidence relating to the offenses during the punishment phase.

                We will assume that appellant can raise this complaint in this appeal. See, e.g., Owens v.

State, 851 S.W.2d 398, 399 (Tex. App.CFort Worth 1993, no pet.) (stating that carving violation was

fundamental error that would Acall for review when raised at almost any time,@ and would not have to be

preserved for post-conviction collateral attack). However, appellant has produced no evidence to

demonstrate that his 1976 conviction violated the carving doctrine. The record does not contain the original

indictment from his 1976 conviction or any evidence concerning the circumstances and timing of the

incident leading to this conviction. See Fitzgerald v. State, 722 S.W.2d 817, 821 (Tex. App.CTyler

1987), aff=d, 782 S.W.2d 876 (Tex. Crim. App. 1990). In Fitzgerald, the Twelfth District Court of

Appeals rejected the appellant=s carving doctrine argument on the grounds that it was not supported by the

record. That court wrote:


        Fitzgerald argues that . . . the theft conviction in [Cause No.] 182,670 is void under the
        now discarded carving doctrine and was unavailable for enhancement purposes. The
        record does not support this contention. No copies of the indictments of the theft and
        burglary cases were introduced into evidence and their contents were not otherwise
        proved. The State, by introducing admissible copies of the judgment and sentence of the
        theft conviction, made a prima facie case whereupon the burden of proof shifted to
        Fitzgerald in this collateral attack against that conviction demonstrate that such conviction
        was void.




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Fitzgerald, 722 S.W.2d at 821; see also Rubino, 770 S.W.2d at 805 (holding that differences in time and

place between appellant=s first assaultive act and then attempted murder were such that incident was one

continuous assaultive transaction). Appellant is in the same situation as the defendant in Fitzgerald.

                 Furthermore, appellant has only one previous conviction; there is only one judgment. The

enhancement provision and the judgment from appellant=s 1976 conviction both state that appellant was

convicted of Athe felony offense of aggravated assault with a deadly weapon and aggravated assault with

serious bodily injury.@ From this wording, the trial court could conclude that appellant was convicted of one

offense alleging two alternative but consistent theories of commission. In any event, at least one conviction

would be valid. See Owens, 851 S.W.2d at 399. Because appellant has not presented the original

indictment nor any proof of facts regarding the incident underlying this conviction, he has failed to carry his

burden to challenge the State=s evidence of a valid conviction, to which appellant stipulated. We cannot

conclude otherwise as a matter of law, based solely on appellant=s unsupported assertion, that his 1976

conviction is void. We overrule appellant=s second point of error.


Admission of Prior Misdemeanor Convictions

                 In his third point of error, appellant complains that the district court erred by permitting the

State to introduce evidence of his misdemeanor convictions that occurred prior to January 1, 1996.

According to the code of criminal procedure: AEvidence of an adjudication for conduct that is a violation of

a penal law of the grade of misdemeanor punishable by confinement in jail is admissible only if the conduct

upon which the adjudication is based occurred on or after January 1, 1996.@ Tex. Code Crim. Proc. Ann.

art. 37.07, ' 3(i)(West Supp. 2002).

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                Another court of appeals has recently decided this issue. In Freeman v. State, 74 S.W.3d

913, 917 (Tex. App.CAmarillo 2002, pet. filed), the court held that the appellant failed to preserve his

complaint for review because he did not object to the introduction of the questioned evidence. As in this

case, the appellant in Freeman argued that, according to article 37.07, section 3(i), the trial court

committed error by admitting his 1992 misdemeanor conviction into evidence at the punishment phase of his

trial. Id. The court rejected the complaint on the general principle that, to preserve error in admitting

evidence, the petitioning party must make a specific objection at the time the evidence is admitted and

obtain a ruling on that objection. Id.; see also Tex. R. App. P. 33.1(a); Tex. R. Evid. 103(a)(1); Broxton

v. State, 909 S.W.2d 912, 918 (Tex. Crim. App. 1995). Here, appellant not only failed to object to the

admission of his prior misdemeanors at the time they were introduced into evidence, but he also agreed to

their admission and stipulated that he was the one convicted in each instance. He therefore waived his

complaint.

                We note that at least one court of appeals has held that the prohibition in article

37.07, section 3(i), is directed to juvenile adjudications, not to misdemeanor convictions. See

Hooks v. State, 73 S.W.3d 398, 402 (Tex. App.CEastland 2002, no pet. h.) (evidence of the

defendant=s past misdemeanor convictions properly admitted because in context section 3(i)

relates to juvenile adjudications);1 see also Freeman, 74 S.W.3d at 917 (concerning evidence of prior


        1
          Originally, section 3(i) was classified as section 3(h). Section 3(a)(1), which addresses a juvenile
adjudication, references section 3(h) and its prohibition on admission of misdemeanors before 1996. See
Hooks v. State, 73 S.W.3d 398, 402 (citing Act of June 2, 1997, 75th Leg., R.S., ch. 1086, '31, 1997
Tex. Gen. Laws 4179, 4191).


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juvenile adjudications). Because of our disposition of appellant=s complaints, we need not decide that issue.

We overrule appellant=s third point of error.


                                             CONCLUSION

                 Because we overrule all of appellant=s points of error, we affirm the judgment of the district

court.




                                                   Marilyn Aboussie, Chief Justice

Before Chief Justice Aboussie, Justices Patterson and Puryear

Affirmed

Filed: October 24, 2002

Do Not Publish




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