Opinion issued June 13, 2019




                                      In The

                               Court of Appeals
                                     For The

                          First District of Texas
                             ————————————
                              NO. 01-18-00254-CR
                            ———————————
                    BENNY EUGENE CONNER, Appellant
                                        V.
                       THE STATE OF TEXAS, Appellee


                    On Appeal from the 56th District Court
                          Galveston County, Texas
                      Trial Court Case No. 17-CR-0647


                          MEMORANDUM OPINION

      A jury convicted Benny Eugene Conner of failure to register as a sex offender;

after finding three enhancement paragraphs “true,” the trial court sentenced him to

40 years’ confinement. See TEX. CODE CRIM. PROC. art. 62.102. In three issues on

appeal, Conner contends that the trial court erroneously sentenced him as a habitual
offender and defense counsel provided constitutionally ineffective assistance of

counsel because he failed to investigate whether the enhancement paragraphs alleged

consecutive offenses and failed to object when the State read those paragraphs to the

jury in the guilt/innocence phase of trial. We affirm.

                                    Background

      In 2001, Conner was convicted of sexual assault of a child. See TEX. PENAL

CODE § 22.011(a)(2). He was required to register as a sex offender for life. See TEX.

CODE CRIM. PROC. arts. 62.001(6)(A) (defining sexual assault of child as “sexually

violent offense”), .101(a)(1) (imposing lifetime duty to register for person with

reportable conviction for sexually violent offense). The duty to register includes a

requirement that the sex offender notify the state of the address where the sex

offender resides. See TEX. CODE CRIM. PROC. art. 62.051(a), (c)(1–a) (instructing

that registration must include “the address at which the person resides or intends to

reside” for more than seven days). In 2017, Conner was arrested and indicted for

failing to comply with this requirement.

      During the guilt/innocence phase of trial, the State had the burden to prove

Conner’s prior conviction requiring his registration as a sex offender. The State

offered the judgment of the child-sexual-assault conviction, which Conner stipulated

to and the trial court admitted without objection. After hearing testimony from the

State’s witnesses about how police discovered Conner was not living where he was


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registered and the defense witnesses who explained that Conner was homeless at the

time of his arrest, the jury returned a guilty verdict.

      To bring Conner within the ambit of the habitual-offender statute—and

thereby raise his sentencing exposure to a term of between 25 and 99 years or life in

prison—the State alleged three prior convictions as enhancements.1 See TEX. PENAL

CODE § 12.42(d). In pertinent part, the indictment alleged:

      And it is further presented in and to said Court, that before the
      commission of the offense alleged above [the primary offense of failure
      to register], the defendant had theretofore been convicted of an offense
      under Article 62.102, Code of Criminal Procedure, in that on the 18th
      day of May, 2010, in the 56th Judicial District Court of Galveston
      County, Texas, in cause number 09CR2246, the defendant was
      convicted of the offense of Failure to Comply with Sex Offender
      Registration Requirements.

                             FIRST ENHANCEMENT
      And it is further presented in and to said Court that, prior to the
      commission of the aforesaid offense [the primary offense of failure to
      register] on the 13th day of March, 2001, in cause number 00CR1250
      in the 10th Judicial District Court of Galveston County, Texas, the
      defendant was convicted of the felony offense of Possession of Child
      Pornography.

                         SECOND ENHANCEMENT
      And it is further presented in and to said Court that, prior to the
      commission of the primary offense [of failure to register], and after the
      conviction in cause number 00CR1250 was final, the defendant
      committed the felony offense of Possession of Child Pornography and
      was convicted on the 25th day of November, 2002, in cause number


1
      Although only two of the enhancement paragraphs are captioned as such, each of
      the three paragraphs alleging a prior conviction is an enhancement paragraph. The
      trial court explained this to Conner.
                                            3
      02CR0976 in the 212th Judicial District Court of Galveston County,
      Texas.

      During the punishment phase of trial, no witnesses testified in support of the

State’s habitual-offender allegations. Instead, the trial court admitted two “pen

packets”—records of Conner’s previous convictions and incarcerations assembled

by the Texas Department of Criminal Justice—into evidence. The pen packets

contained the judgments of conviction not only for the three offenses identified in

the enhancement paragraphs but also for two additional counts of possession of child

pornography.

      Conner pleaded true to all three enhancement paragraphs upon the advice of

his counsel. After confirming Conner’s pleas, the trial court found all three

enhancement paragraphs “true”; rendered a judgment of conviction for a third-

degree felony, as enhanced; and assessed Conner’s punishment at 40 years’

confinement. Conner appealed.

                              Sentence Enhancement

      In his first issue, Conner argues his sentence is illegal because the punishment

range was improperly enhanced under Section 12.42(d) of the Penal Code, which

provides a punishment range of 25 to 99 years or life for habitual offenders:2

      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
2
      According to Conner, the failure-to-register offense in this case should have been a
      first-degree felony punishable by five years to life in prison.

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      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 § 12.42(d) (emphasis added). Conner asserts that it was error for

the trial court to rely on the November 2002 possession-of-child-pornography

conviction alleged in the second enhancement paragraph for enhancement as a

habitual offender. This, according to Conner, is because the March 2001 conviction

alleged in the first enhancement paragraph, also for possession of child pornography,

was not yet final at the time he committed the second offense.3

      Conner’s argument ignores that the State alleged in the indictment a third

conviction for enhancement—the 2010 conviction for a sex-offender-registration

offense to which he stipulated. Because Conner’s registration duty was for life, his

prior sex-offender-registration conviction, like his prior child-pornography

convictions, is a felony offense that is not punishable as a state jail felony. See TEX.

CODE CRIM. PROC. art. 62.102(b). And it could be used for enhancement purposes


3
      Conner’s finality argument is based on the date the mandate issued in his appeal of
      the March 2001 conviction. Because the mandate is not in the appellate record,
      Conner asks us to take judicial notice of the copy appended to his brief. We do not
      decide whether the mandate is a proper subject of judicial notice because we resolve
      Conner’s first issue on another ground.
                                           5
under the habitual-offender statute. See TEX. PENAL CODE § 12.42(d); see also

Crawford v. State, 509 S.W.3d 359, 364 (Tex. Crim. App. 2017) (noting that two

prior felony convictions for sex-offender-registration offenses could be used for

enhancement as habitual offender).

       Conner does not argue that the convictions alleged in the indictment’s first

and second enhancement paragraphs lacked finality when he previously failed to

comply with the sex offender registration requirements. Thus, even assuming

Conner is correct that the 2001 child-pornography conviction was not final at the

time he committed the 2002 child-pornography offense, his argument fails because

he could be sentenced properly as a habitual offender using the 2010 sex-offender-

registration conviction and either the 2001 or 2002 child-pornography conviction.

       Accordingly, we hold that Conner’s sentence is not illegal, and we overrule

his first issue.

                         Ineffective Assistance of Counsel

       In his second and third issues, Conner argues that defense counsel was

constitutionally ineffective because he failed to (1) investigate whether the child-

pornography conviction alleged in the first enhancement paragraph was final before

Conner committed the child-pornography offense alleged in the second

enhancement paragraph and (2) object to the State’s alleged disclosure of his prior

convictions in the guilt/innocence phase of trial.


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A.    Standard of review

      We evaluate claims of ineffective assistance of counsel under the standard set

forth in Strickland v. Washington, 466 U.S. 668, 687 (1984). Under Strickland, a

defendant must show that (1) counsel’s performance fell below an objective standard

of reasonableness and (2) but for counsel’s unprofessional error, there is a reasonable

probability that the result of the proceedings would have been different. Id. at 687–

94; Thompson v. State, 9 S.W.3d 808, 812 (Tex. Crim. App. 1999). “A reasonable

probability is a probability sufficient to undermine confidence in the outcome.” Id.

at 695. A defendant must establish both prongs by a preponderance of the evidence.

Jackson v. State, 973 S.W.2d 954, 956 (Tex. Crim. App. 1998). Failure to make a

showing under either prong defeats an ineffective-assistance claim. See Rylander v.

State, 101 S.W.3d 107, 110 (Tex. Crim. App. 2003).

      In reviewing counsel’s performance, we look to the totality of the

representation to determine the effectiveness of counsel, indulging a strong

presumption that his performance falls within the wide range of reasonable

professional assistance and trial strategy. See Robertson v. State, 187 S.W.3d 475,

482–83 (Tex. Crim. App. 2006); Thompson, 9 S.W.3d at 813. In determining

whether there was a reasonable probability of a different result but for the ineffective

assistance, we look for a “probability sufficient to undermine confidence in the

outcome.” Strickland, 466 U.S. at 694.


                                           7
B.    Failure to investigate enhancement allegations

      Conner’s second issue challenges whether defense counsel was ineffective in

“failing to properly investigate and discover that the second enhancement paragraph

did not qualify under Texas law as a proper second enhancement.”

      In our resolution of Conner’s first issue, we concluded that Conner could be

sentenced as a habitual offender regardless of whether the child-pornography

convictions identified in the first and second enhancement paragraphs were

consecutive, given that there is no argument that at least one of those convictions

was final when Conner violated the sex-offender-registration rules for the first time.

Thus, even assuming that defense counsel could have conducted a more thorough

investigation of the enhancement allegations, our confidence in the outcome of the

punishment proceedings is not undermined by a reasonable probability of a different

result. Because the record does not support a reasonable probability of a different

result, Conner has not satisfied the Strickland standard for ineffective assistance of

counsel. See 466 U.S. at 695 (“The defendant must show that there is a reasonable

probability that, but for counsel’s unprofessional errors, the result of the proceeding

would have been different.”); Butler v. State, No. 01-94-00756-CR, 1995 WL

416892, at *5 (Tex. App.—Houston [1st Dist.] July 13, 1995, pet. ref’d) (not

designated for publication) (rejecting ineffective-assistance claim because there was

not reasonable probability that result of proceedings would have been different).


                                          8
      We overrule Conner’s second issue.

C.    Failure to object to State’s reading of enhancement paragraphs

      Conner’s third issue—that defense counsel was constitutionally ineffective

because he failed to object when the State read the indictment’s enhancement

paragraphs in the guilt/innocence phase of trial—rests on a transcription error. When

Conner filed his opening brief, the reporter’s record indicated that the State read

jurors the entire indictment after the jury was sworn, including the prior convictions

alleged for enhancement. Had the State done this, Conner would be correct in

questioning whether the State violated the Code of Criminal Procedure and whether

his counsel should have objected. See TEX. CODE CRIM. PROC. art. 36.01(a)(1)

(“When prior convictions are alleged for purposes of enhancement only and are not

jurisdiction, that portion of the indictment or information reciting such convictions

shall not be read until the hearing on punishment[.]”). But two days after Conner

filed his opening brief, the court reporter amended the record to clarify that the

enhancement paragraphs were omitted from the State’s reading of the indictment.

Conner has not objected to or challenged the accuracy of the amended reporter’s

record.

      Because Conner’s failure-to-object argument rests on an inaccurate record of

the trial proceedings and the corrected record does not show the error about which

he complains, we overrule Conner’s third issue.


                                          9
                                     Conclusion

         Having overruled all of Conner’s issues, we affirm the judgment of the trial

court.




                                                Sarah Beth Landau
                                                Justice

Panel consists of Justices Lloyd, Landau, and Countiss.

Do not publish. TEX. R. APP. P. 47.2(b).




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