               3




                         COURT OF APPEALS
                         SECOND DISTRICT OF TEXAS
                              FORT WORTH

                              NO. 02-10-00503-CR


GEORGE MICHAEL CARTER A/K/A                                         APPELLANT
MICHAEL GEORGE CARTER

                                        V.

THE STATE OF TEXAS                                                        STATE


                                     ----------

          FROM THE 43RD DISTRICT COURT OF PARKER COUNTY

                                     ----------

                        MEMORANDUM OPINION1

                                     ----------

      Appellant George Michael Carter, also known as Michael George Carter,

pled guilty to felony driving while intoxicated (DWI) but not true to the habitual

offender counts. A jury convicted him, found the habitual offender counts true,

and assessed his punishment at life imprisonment. The trial court sentenced him

accordingly.   In three points, Appellant contends that the trial court erred by


      1
       See Tex. R. App. P. 47.4.
overruling his objection to the jury charge; that ―proper finality sequencing‖ was

not shown with respect to the second habitual offender count; and that the trial

court abused its discretion by overruling his objection to the prosecutor’s closing

argument. Because we hold that the trial court did not reversibly err, we affirm

the trial court’s judgment.

I. Date of Conviction Relied on in Jurisdictional/Offense-Enhancement
Paragraph Is Not Element of Charged Offense; Conviction Relied on in
Habitual Offender Count May Therefore Properly Occur on Same Date.

      In his first point, Appellant contends that ―[t]he trial court reversibly erred

and abused its discretion in denying [his] objection to the court’s charge.‖ In his

second point, Appellant contends that ―[t]he verdict of the jury and the judgment

of the court should be reversed and remanded for a new trial on the issue of

penalty because proper finality sequencing was not shown with respect to

Enhancement Two.‖ He consolidates these two points for argument.

      The indictment charges Appellant with the instant DWI and alleges six prior

DWI convictions in six respective jurisdictional or offense-enhancing paragraphs

to elevate the instant DWI to a felony DWI.          The sixth offense-enhancing

paragraph provides,

      [A]nd it is further presented in and to said Court that prior to the
      commission of the aforesaid offense by the said [Appellant] on or
      about the 3rd day of December, 1984 or 10th day of May 1989, in
      the Criminal District Court No. Two, of Tarrant County, Texas, cause
      No. 0239589D, the said [Appellant] was convicted of the offense of
      [DWI] and said conviction became final prior to the commission of
      the aforesaid offense. [Emphasis added.]

The sentence-enhancing counts provide,


                                         2
                              ENHANCEMENT ONE

      [A]nd it is further presented in and to said court that prior to the
      commission of the aforesaid offense by the said [Appellant] on the
      22nd day of January, 1997, in the 371st District Court, Tarrant
      County, Texas, Cause No. 0643353W, the said [Appellant] was
      convicted of the offense of [DWI] and said conviction became final
      prior to the commission of the primary offense in Paragraph One,
      which was alleged to have occurred on August 29, 2009,

                              ENHANCEMENT TWO

      [A]nd it is further presented in and to said Court, that prior to the
      commission of the primary offense alleged in Paragraph One by
      the said [Appellant], on the 10th day of May, 1989 in the Criminal
      District Court No. Two, Tarrant County, Texas, Cause No.
      0342499D, the said [Appellant] was convicted of a felony, to-wit:
      [DWI] And Two Prior Felony Convictions For [DWI], and said
      conviction became final prior to the commission of the offenses
      alleged in Paragraph One and Enhancement One. [Emphasis
      added.]

The jury charge repeated the enhancement paragraphs and instructed,

      [I]f you find beyond a reasonable doubt [Appellant] is the same
      person who was previously and finally convicted as alleged in
      Enhancement One and Enhancement Two and that said convictions
      became final prior to the commission of the offense alleged in the
      indictment set out above, and you find that the conviction in
      Enhancement Two became final prior to the commission of the
      offense in Enhancement One, you will find said allegations ―True‖
      and assess his punishment at confinement . . . for any term of not
      more than 99 years or life or less than 25 years.

In the jury charge conference, Appellant objected,

             The last one that’s alleged in the body of the indictment is a
      conviction on the—and here it gets a little strange. It’s for [Appellant]
      and it says, ―On or about the 3rd day of December 1984, or the 10th
      day of May, 1989.‖ So it’s got two dates of conviction because I
      think it involved a probation that was ultimately revoked later. It’s in
      Criminal District Court Number Two.            It’s the case number
      0239589D.


                                         3
             Now, the reason I point that out is that when we get to the
      enhancement allegations, Enhancement Allegation One alleges that
      it occurred before the primary offense in 1997.

            The habitual allegation, which originally in the indictment was
      Enhancement Paragraph Two B . . . , I think that’s correct. Yeah. It
      alleges that the conviction occurred on the 10th day of May, 1989, in
      Cause No. 342499D.

            The problem with the way that this is alleged is that it also
      alleges in the habitual—or the second enhancement allegation at the
      end, it says, ―And said conviction became final prior to the
      commission of the offenses (multiple) alleged in Paragraph One and
      Enhancement One.‖

             Well, Paragraph One would be all of the priors in addition to
      the primary offense because those are all offenses. And the last
      one of those priors is the same date of conviction, the 10th of May,
      1989, as in the habitual count. So it couldn’t have been before that.
      That means that we really don’t have a habitual count the way this is
      pled in the amended indictment because it’s not before that.

             ....

            . . . . [W]e can’t have a habitual count because one of the
      priors they allege for jurisdiction to get it to a felony in the first
      place happens on the same day as the one alleged in
      Enhancement Paragraph Two.

           So I don’t think there should be a second enhancement
      submitted to the jury with a habitual punishment range for that
      reason. [Emphasis added.]

The trial court overruled Appellant’s objection to the jury charge.

      Appellant does not contend that the State did not prove the existence of

the six different jurisdictional prior convictions, or offense-enhancing paragraphs,

nor does he contend that the State did not prove the two habitual offender

paragraphs. Appellant essentially contends that because the second habitual



                                         4
offender paragraph and the sixth jurisdictional, or offense-enhancing, paragraph

rely on convictions of the same date, the jury was erroneously charged and his

sentence was erroneously enhanced using the second habitual offender

paragraph. Appellant in no way alleges that the two paragraphs rely on the same

conviction. Instead, Appellant contends that the law requires that a conviction

relied on in a habitual offender paragraph must have occurred before any

conviction relied on in the jurisdictional, offense-enhancing paragraph. Appellant

cites no authority supporting his overlay of the requirements for habitual offender

paragraphs onto jurisdictional or offense-enhancing paragraphs, nor have we

found any.

      Section 12.42(d) controls how sentences are enhanced based on prior

convictions.2 The statute provides in relevant part,

      [I]f it is shown on the trial of a felony offense . . . 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.3

      In explaining how section 12.42(d) of the penal code works, the Texas

Court of Criminal Appeals stated,

      [T]he chronological sequence of events must be proved as follows:
      (1) the first conviction becomes final; (2) the offense leading to a

      2
       See Tex. Penal Code Ann. § 12.42(d) (West Supp. 2011).
      3
       Id.


                                          5
      later conviction is committed; (3) the later conviction becomes final;
      (4) the offense for which defendant presently stands accused is
      committed. The State carries the burden of proving beyond a
      reasonable doubt that a defendant’s second previous felony
      conviction was committed after the defendant’s first previous felony
      conviction became final. And when there is no evidence to show
      that the offenses were committed and became final in the proper
      sequence, the defendant’s sentence may not be enhanced under
      the State’s habitual offender statutes.4

      While section 12.42(d) of the penal code controls how sentences are

enhanced based on prior convictions,5 section 49.09(b)(2) prescribes the manner

in which a misdemeanor DWI becomes a felony of the third degree.6 The statute

provides that a DWI ―is a felony of the third degree if it is shown on the trial of the

offense that the person has previously been convicted . . . two times of any other

offense relating to the operating of a motor vehicle while intoxicated . . . .‖7 The

prior intoxication-related offenses, or jurisdictional priors, are elements of the

felony DWI.8 Thus, the State must prove the fact of each prior jurisdictional

conviction beyond a reasonable doubt in the guilt phase of the trial. 9 But the



      4
        Jordan v. State, 256 S.W.3d 286, 290–91 (Tex. Crim. App. 2008)
(citations and internal marks omitted).
      5
       See Tex. Penal Code Ann. § 12.42(d).
      6
       See id. § 49.09(b)(2).
      7
       Id.
      8
       See Gibson v. State, 995 S.W.2d 693, 696 (Tex. Crim. App. 1999).
      9
      See id.; Zimmer v. State, 989 S.W.2d 48, 50 (Tex. App—San Antonio
1998, pet. ref’d) (applying the Jackson standard to a sufficiency review of prior

                                          6
exact date that such prior conviction occurred is not an element that the State

must prove.10

      Further, in contrast to section 12.42(d) concerning habitual offender

counts, section 49.09(b)(2) contains no requirement that the offense-enhancing

convictions, or jurisdictional priors, occur in sequential order or even in separate

transactions.11 Subsection (g), however, does prohibit using the same conviction

to both elevate a DWI offense to a higher class of misdemeanor or to a felony

and to also enhance the sentence.12 Appellant does not raise that issue here.

      Applying the law to the facts before us, while it is true that the elements of

the instant primary DWI offense had to have occurred after the two sequential

convictions relied on in the habitual offender paragraphs for Appellant’s sentence

to be enhanced under section 12.42(d), the dates of the jurisdictional priors, or

offense-enhancing convictions, used to enhance Appellant’s instant primary DWI

offense to a felony under section 49.09(b)(2) are not elements of that primary

offenses that were jurisdictional elements of the crime at issue); see also Goode
v. State, No. 02-10-00465-CR, 2011 WL 4502333, at *1 (Tex. App.—Fort Worth
Sept. 29, 2011, pet. ref’d).
      10
        See Tietz v. State, 256 S.W.3d 377, 378–79 (Tex. App.—San Antonio
2008, pet. ref’d); Vanderhorst v. State, 52 S.W.3d 237, 242 (Tex. App.—Eastland
2001, no pet.); see also State v. Mason, 980 S.W.2d 635, 639–41 (Tex. Crim.
App. 1998) (holding that while Mason’s status as felon was an element of the
instant offense—possession of a firearm by a convicted felon—the dates of his
prior convictions were not).
      11
        See Tex. Penal Code Ann. § 49.09(b)(2); Gibson, 995 S.W.2d at 696.
      12
        See Tex. Penal Code Ann. § 49.09(g) (West Supp. 2011).


                                         7
DWI offense.13 In Vanderhorst v. State, Vanderhorst argued that the trial court

erred by finding the second and third habitual offender paragraphs true because

his 1990 conviction for the felony offense of bail jumping (relied on in the third

habitual offender paragraph) did not occur before ―one of the elements in [his]

1992 felony DWI conviction‖ (relied on in the second habitual offender

paragraph).14 As our sister court explained in overruling his point,

      The ―element‖ referred to by [Vanderhorst] was the jurisdictional two
      prior DWI convictions proven for [his] 1992 felony DWI conviction.
      While the prior two convictions (that occurred before 1990) were a
      jurisdictional element of [his] 1992 felony DWI conviction, the exact
      dates of those prior convictions were not elements of the 1992
      felony conviction.15

      Thus, there is no requirement that the jurisdictional priors, or convictions

used to enhance Appellant’s instant DWI to a felony, had to have occurred before

the offenses or convictions used to enhance his sentence. Consequently, the

trial court properly charged the jury. Appellant raises no other complaint about

the sufficiency of the State’s proof of enhancements.       We therefore overrule

Appellant’s first two points.




      13
       See Tietz, 256 S.W.3d at 378–79; Vanderhorst, 52 S.W.3d at 242; see
also Mason, 980 S.W.2d at 639–41.
      14
        Vanderhorst, 52 S.W.3d at 242.
      15
        Id. (citations omitted).


                                         8
II. Trial Court Committed No Reversible Error by Overruling Appellant’s
Objections to State’s Closing Argument.

      In his third point, Appellant complains that the trial court abused its

discretion by overruling his objection to the prosecutor’s closing argument. The

prosecutor argued that in assessing punishment, the jury should consider that

Appellant could not quit driving while intoxicated because ―he either doesn’t care,

doesn’t care enough, or really doesn’t mind. He doesn’t want to change. To

change, you have—.‖ Defense counsel objected that the argument was outside

the record, baseless, and injected new and harmful facts into the case. The trial

court overruled the objection.    But before the argument complained of, the

prosecutor argued,

      They couldn’t even keep straight how many times he went to rehab,
      where he went to rehab, how long he was in rehab. And you know
      why? He didn’t want rehab. You got to want it before you’re going
      to do it. And it doesn’t appear from his history that he wants to do it.

Appellant did not object.

      Nor did he object after the complained-of argument when the prosecutor

argued,

            Folks, you’ve got to want to change to change. And there’s
            been no evidence from future conduct that he’s done so.

            It goes back to what we talked about earlier. You have to
            want to change. Did he want to change? I don’t know. We
            sent him to everything.

            Folks, you’ve got to want to change. You’ve got to want to
            change.




                                         9
            You can’t tell me that a person that drunk doesn’t know how
            dangerous they’re going to be. They’ve got to know how
            dangerous they’re going to be out there. And they’ve got to
            make a conscious decision, granted a drunk decision, but a
            conscious decision that they don’t care. They just don’t care.
            Once. Once. But beyond that [initial DWI], folks, anything
            beyond that, you just must not care to change.

      Appellant’s failure to object to prior and subsequent arguments that he did

not want to change and did not care renders any possible error harmless.16

Accordingly, we overrule Appellant’s third point.


III. Conclusion

      Having overruled Appellant’s three points, we affirm the trial court’s

judgment.




                                                    LEE ANN DAUPHINOT
                                                    JUSTICE

PANEL: DAUPHINOT, MCCOY, and MEIER, JJ.

DO NOT PUBLISH
Tex. R. App. P. 47.2(b)

DELIVERED: January 26, 2012




      16
        See Lucero v. State, 246 S.W.3d 86, 101–02 (Tex. Crim. App.), cert.
denied, 555 U.S. 818 (2008); Howard v. State, 153 S.W.3d 382, 384–86 (Tex.
Crim. App. 2004), cert. denied, 546 U.S. 1214 (2006).


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