                                 IN THE
                         TENTH COURT OF APPEALS

                                No. 10-15-00359-CR

OTIS DWAYNE KIRVEN,
                                                           Appellant
v.

THE STATE OF TEXAS,
                                                           Appellee



                           From the 19th District Court
                            McLennan County, Texas
                           Trial Court No. 2012-1545-C1


                          MEMORANDUM OPINION


      Appellant Otis Dwayne Kirven was charged in a four-count indictment for

aggravated assault, failure to stop and render aid, abandoning a child, and endangering

a child. The indictment also contained an enhancement allegation. Kirven pleaded guilty

to the offenses of aggravated assault and failure to stop and render aid and pleaded true

to the enhancement allegation.     In exchange, the State abandoned the charges for

abandoning a child and endangering a child.       Thereafter, a jury assessed Kirven’s

punishment at thirty-five years’ imprisonment for the aggravated-assault conviction and
twenty years’ imprisonment for the failure-to-stop-and-render-aid conviction, to be

served concurrently. This is the appeal of his failure-to-stop-and-render-aid conviction.

                                        Void Sentence

        In his first issue, Kirven contends that the twenty-year sentence imposed for the

failure-to-stop-and-render-aid judgment of conviction is void because the offense was

improperly enhanced with a prior conviction.

        The offense of failure to stop and render aid is defined by sections 550.021 and

550.023 of the Transportation Code. Ramirez v. State, 90 S.W.3d 884, 885 (Tex. App.—San

Antonio 2002, pet. ref’d); see TEX. TRANSP. CODE ANN. § 550.021 (West Supp. 2014), §

550.023 (West 2011). The second clause of subsection 1.03(b) of the Penal Code states that

“… the punishment affixed to an offense defined outside [the Penal Code] shall be

applicable unless the punishment is classified in accordance with [the Penal Code].” TEX.

PENAL CODE ANN. § 1.03 (West 2011). Subsection 550.021(c) provides that the offense of

failure to stop and render aid:

        (1) involving an accident resulting in:

            (A) death of a person is a felony of the second degree; or

            (B) serious bodily injury, as defined by Section 1.07, Penal Code, to a
            person is a felony of the third degree; and

        (2) involving an accident resulting in injury to which Subdivision (1) does
        not apply is punishable by:

            (A) imprisonment in the Texas Department of Criminal Justice for not
            more than five years or confinement in the county jail for not more
            than one year;

            (B) a fine not to exceed $5,000; or

Kirven v. State                                                                       Page 2
            (C) both the fine and the imprisonment or confinement.

TEX. TRANSP. CODE ANN. § 550.021(c)(2). Kirven’s conviction for the offense of failure to

stop and render aid did not involve an accident resulting in death or serious bodily injury;

therefore, this case involves subsection 550.021(c)(2) of the Transportation Code. See id. §

550.021(c). Subsection 550.021(c)(2) of the Transportation Code does not specifically

assign a felony classification to the offense of failure to stop and render aid in accordance

with the classification system referred to in section 12.04 of the Penal Code. Ramirez, 90

S.W.3d at 885; see TEX. PENAL CODE ANN. § 12.04 (West 2011) (classifying felony offenses

as capital felonies, felonies of first degree, felonies of second degree, felonies of third

degree, and state-jail felonies); TEX. TRANSP. CODE ANN. § 550.021(c)(2).         Thus, the

punishment affixed by subsection 550.021(c)(2) of the Transportation Code, i.e.,

imprisonment in the Texas Department of Criminal Justice for not more than five years

or confinement in the county jail for not more than one year, a fine not to exceed $5,000,

or both the fine and the imprisonment or confinement, is applicable to a bare conviction

for the offense of failure to stop and render aid when the offense does not involve an

accident resulting in serious bodily injury or death. See TEX. PENAL CODE ANN. § 1.03(b);

TEX. TRANSP. CODE ANN. § 550.021(c)(2); Childress v. State, 784 S.W.2d 361, 362 (Tex. Crim.

App. 1990). But Kirven pleaded true to the enhancement paragraph alleging a prior

felony conviction on March 9, 2006 for possession of a controlled substance; therefore,

Kirven’s conviction is not a bare conviction for the offense of failure to stop and render

aid that did not involve an accident resulting in serious bodily injury or death.


Kirven v. State                                                                        Page 3
        The first clause of subsection 1.03(b) of the Penal Code states, “The provisions of

Titles 1, 2, and 3 [of the Penal Code] apply to offenses defined by other laws, unless the

statute defining the offense provides otherwise….” See TEX. PENAL CODE ANN. § 1.03(b).

Subchapter D of chapter 12 of the Penal Code, which includes sections 12.41 and 12.42, is

contained in Title 3 of the Penal Code. See id. §§ 12.41, 12.43-12.50 (West 2011), §§ 12.42-

12.425 (West Supp. 2015). According to subsection 1.03(b) of the Penal Code, sections

12.41 and 12.42 of the Penal Code are therefore applicable to the offense of failure to stop

and render aid defined by the Transportation Code. See id. § 1.03(b); Childress, 784 S.W.2d

at 365; Ramirez, 90 S.W.3d at 885-86; see also Murphy v. State, Nos. 01-08-00768-CR, 01-08-

00769-CR, 2010 WL 1620803, at *11 (Tex. App.—Houston [1st Dist.] Apr. 22, 2010, pet.

ref’d) (mem. op., not designated for publication).

        Section 12.41, entitled “Classification of Offenses Outside This Code,” provides in

pertinent part, “For purposes of this subchapter, any conviction not obtained from a

prosecution under this code shall be classified as follows: (1) ‘felony of the third degree’

if imprisonment in the Texas Department of Criminal Justice or another penitentiary is

affixed to the offense as a possible punishment.” TEX. PENAL CODE ANN. § 12.41(1).

Subsection 550.021(c)(2) of the Transportation Code affixes imprisonment in the Texas

Department of Criminal Justice as a possible punishment for the offense of failure to stop

and render aid when the offense does not involve an accident resulting in serious bodily

injury or death; therefore, the offense is a third-degree felony for purposes of subchapter

D of chapter 12 of the Penal Code. See id.; TEX. TRANSP. CODE ANN. § 550.021(c)(2);

Childress, 784 S.W.2d at 365-66; Ramirez, 90 S.W.3d at 886; see also Murphy, 2010 WL

Kirven v. State                                                                       Page 4
1620803, at *11. Subsection 12.42(a) of the Penal Code then states:

        Except as provided by Subsection (c)(2), if it is shown on the trial of a felony
        of the third degree that the defendant has previously been finally convicted
        of a felony other than a state jail felony punishable under Section 12.35(a),
        on conviction the defendant shall be punished for a felony of the second
        degree.

TEX. PENAL CODE ANN. § 12.42(a). Kirven’s failure-to-stop-and-render-aid conviction,

which was a third-degree felony for purposes of subchapter D of chapter 12 of the Penal

Code, was therefore properly punished as a second-degree felony because he had

previously been finally convicted on March 9, 2006 of felony possession of a controlled

substance. See id.

        Kirven argues, however, that while the foregoing used to be the proper analysis,

the 2007 amendment to subsection 550.021(c) of the Transportation Code changed the

analysis such that the punishment affixed in subsection 550.021(c)(2) of the

Transportation Code is no longer subject to enhancement under section 12.42 of the Penal

Code. Kirven emphasizes that the first clause of subsection 1.03(b) of the Penal Code

states, “The provisions of Titles 1, 2, and 3 [of the Penal Code] apply to offenses defined

by other laws, unless the statute defining the offense provides otherwise….” See id. § 1.03(b)

(emphasis added).       And Kirven argues that the post-2007-amendment version of

subsection 550.021(c) of the Transportation Code “provides otherwise.”

        Before it was amended in 2007, subsection 550.021(c) of the Transportation Code

stated that the offense of failure to stop and render aid was punishable by:                “(1)

imprisonment in the institutional division of the Texas Department of Criminal Justice

for not more than five years or confinement in the county jail for not more than one year;

Kirven v. State                                                                            Page 5
(2) a fine not to exceed $5,000; or (3) both the fine and the imprisonment or confinement.”

Act of May 1, 1995, 74th Leg., R.S., ch. 165, § 1, 1995 Tex. Gen. Laws 1025, 1692 (amended

2007 & 2013) (current version at TEX. TRANSP. CODE ANN. § 550.021(c)).            Effective

September 1, 2007, subsection 550.021(c) was amended to state that the offense of failure

to stop and render aid:

        (1) involving an accident resulting in death of or serious bodily injury, as
        defined by Section 1.07, Penal Code, to a person is a felony of the third
        degree; and

        (2) involving an accident resulting in injury to which Subdivision (1) does not
        apply is punishable by:

            (A) imprisonment in the Texas Department of Criminal Justice for not
            more than five years or confinement in the county jail for not more
            than one year;

            (B) a fine not to exceed $5,000; or

            (C) both the fine and the imprisonment or confinement.

Act of May 3, 2007, 80th Leg., R.S., ch. 97, § 2, 2007 Tex. Gen. Laws 105, 105 (amended

2013) (current version at TEX. TRANSP. CODE ANN. § 550.021(c)). Subsection 550.021(c)’s

current version then became effective on September 1, 2013. See TEX. TRANSP. CODE ANN.

§ 550.021(c).

        Kirven argues that in the 2007 amendment to subsection 550.021(c), the Legislature

specifically provided in the subsection the conduct that would be required for the offense

of failure to stop and render aid to be classified as a third-degree felony, and Kirven

argues that the conduct for which he was convicted did not fit within those parameters.

Kirven contends that the conduct for which he was convicted was given a specific


Kirven v. State                                                                        Page 6
punishment range without a Penal Code classification and that the provisions of Titles 1,

2, and 3 of the Penal Code cannot therefore apply to enhance the punishment of the

offense using section 12.42 of the Penal Code. We disagree. As noted by Kirven, “it is

presumed that the legislature is aware of case law affecting or relating to the statute.”

Miller v. State, 33 S.W.3d 257, 260 (Tex. Crim. App. 2000). It is thus presumed that the

Legislature was aware of Childress and Ramirez, which interpreted the statutes to allow

the offense of failure to stop and render aid to be enhanced under section 12.42 of the

Penal Code, when it made the 2007 amendments to subsection 550.021(c) of the

Transportation Code. We therefore believe that the Legislature would have been clearer

and simply stated so if it intended subsection 550.021(c) to provide that the provisions of

Titles 1, 2, and 3 of the Penal Code do not apply to the offense of failure to stop and render

aid punishable under subsection 550.021(c)(2) or that the punishment under subsection

550.021(c)(2) is not to be enhanced by a prior conviction.

        We therefore conclude, as stated above, that Kirven’s failure-to-stop-and-render-

aid conviction was properly punished as a second-degree felony. Section 12.33(a) of the

Penal Code states, “An individual adjudged guilty of a felony of the second degree shall

be punished by imprisonment in the Texas Department of Criminal Justice for any term

of not more than 20 years or less than 2 years.” TEX. PENAL CODE ANN. § 12.33(a) (West

2011). The jury assessed Kirven’s punishment at twenty years’ imprisonment. The

sentence is thus not void. We overrule Kirven’s first issue.

                                        Jury Charge

        In his second issue, Kirven contends that the jury charge incorrectly stated the

Kirven v. State                                                                         Page 7
range of punishment for the offense of failure to stop and render aid.

        A claim of jury-charge error is reviewed using the procedure set out in Almanza.

Barrios v. State, 283 S.W.3d 348, 350 (Tex. Crim. App. 2009); Almanza v. State, 686 S.W.2d

157, 171 (Tex. Crim. App. 1985). The first step is to determine whether there is error in

the charge. Ngo v. State, 175 S.W.3d 738, 743 (Tex. Crim. App. 2005). Only if we find

error, do we then analyze that error for harm. Id.

        The jury charge stated that the punishment range for the offense of failure to stop

and render aid, before enhancement, was “by confinement in the Texas Department of

Criminal Justice, Institutional Division for any term not less than two (2) years nor more

than ten (10) years, and in addition thereto the Defendant may be assessed a fine in any

amount not to exceed ten thousand dollars ($10,000.00).” The charge then stated that the

punishment range for the offense of failure to stop and render aid, enhanced by a prior

felony conviction, was “by confinement in the Texas Department of Criminal Justice,

Institutional Division, for any term of years not less than two (2) years nor more than

twenty (20) years, and in addition thereto, the Defendant may be assessed a fine in any

amount not to exceed ten thousand dollars ($10,000.00).” After noting that Kirven

pleaded “true” to the enhancement allegation, the charge then instructed the jury in

pertinent part:

               Now, therefore, you shall find from the evidence beyond a
        reasonable doubt that prior to the commission of the offenses of Count I,
        Aggravated Assault and Count II, Vehicle Involved in Accident – Failure to
        Stop and Render Aid for which you have found the Defendant guilty, he
        was duly and legally convicted of a felony as described above, … and you
        shall assess the punishment of the Defendant at confinement in the Texas
        Department of Criminal Justice, Institutional Division for any term of years

Kirven v. State                                                                        Page 8
        not less than two (2) years nor more than twenty (20), and in addition
        thereto the Defendant may be assessed a fine in any amount not to exceed
        ten thousand dollars ($10,000.00) as to Count II of the Indictment ….”

The jury assessed Kirven’s punishment on the offense of failure to stop and render aid at

twenty years’ confinement and no fine.

        Kirven complains that the charge allowed the jury to assess a punishment not

authorized by law. Based on our analysis of Kirven’s first issue, however, we disagree.

As explained above, Kirven’s failure-to-stop-and-render-aid conviction was properly

punished as a second-degree felony. Section 12.33(a) of the Penal Code states, “An

individual adjudged guilty of a felony of the second degree shall be punished by

imprisonment in the Texas Department of Criminal Justice for any term of not more than

20 years or less than 2 years.” TEX. PENAL CODE ANN. § 12.33(a). The jury assessed

Kirven’s punishment at twenty years’ imprisonment. Kirven’s sentence is therefore

authorized by law.

        Kirven also complains that the charge improperly instructed the jury that the

punishment range for the offense of failure to stop and render aid, before enhancement,

was that for a third-degree felony. The State concedes the error, and we agree. The

charge should have instructed the jury that the punishment range for the offense of

failure to stop and render aid, before enhancement, was imprisonment in the Texas

Department of Criminal Justice for not more than five years or confinement in the county

jail for not more than one year, a fine not to exceed $5,000, or both the fine and the

imprisonment or confinement. See TEX. TRANSP. CODE ANN. § 550.021(c)(2).

        But because Kirven did not object to the charge on this basis, error will not result

Kirven v. State                                                                       Page 9
in reversal of his conviction in the absence of “egregious harm.” Almanza, 686 S.W.2d at

171. Here, because Kirven pleaded “true” to the enhancement allegation and his failure-

to-stop-and-render-aid conviction was therefore properly punished as a second-degree

felony, we conclude that the error did not result in egregious harm to Kirven. We

overrule Kirven’s second issue.

        Having overruled both of Kirven’s issues, we affirm the trial court’s judgment

convicting him of failure to stop and render aid.




                                                REX D. DAVIS
                                                Justice

Before Chief Justice Gray,
       Justice Davis, and
       Justice Scoggins
Affirmed
Opinion delivered and filed December 17, 2015
Do not publish
[CRPM]




Kirven v. State                                                                  Page 10
