Affirmed and Memorandum Opinion filed April 9, 2020.




                                        In The

                     Fourteenth Court of Appeals

                                NO. 14-18-00462-CR

                           BRENT JUSTICE, Appellant

                                          V.

                        THE STATE OF TEXAS, Appellee

                    On Appeal from the 176th District Court
                            Harris County, Texas
                        Trial Court Cause No. 1385768

                           MEMORANDUM OPINION

      In this pro se appeal from a conviction for cruelty to a non-livestock animal,
appellant raises several issues, all of which pertain to the trial court’s assessment of
his punishment. For the reasons explained below, we overrule each of appellant’s
issues and affirm the trial court’s judgment.
                                  BACKGROUND

      This is our second time to review this case of animal cruelty. Because the
procedural history is relevant to the issues presented in the current appeal, we begin
with an overview of the earlier proceedings.

      The First Trial. Appellant was arrested after an investigation determined that
he and his codefendant were producing an extremely graphic brand of pornography
that fetishizes the torture and killing of small animals. Though the investigation
against appellant uncovered multiple instances of animal cruelty, involving multiple
different animals, appellant was charged with just a single offense arising out of the
torture and killing of a puppy.

      Appellant pleaded not guilty to the charge, and his case proceeded to a bench
trial, where he represented himself. The evidence against him was overwhelming.
There was video proof that he and his codefendant tortured and killed the puppy with
a knife.

      The trial court found appellant guilty and entered a judgment of conviction
for a third degree felony, which, at the time of trial, was the highest criminal penalty
available under the animal cruelty statute. The trial court also made a deadly weapon
finding. Based on two prior felony convictions for aggravated assault of a peace
officer, the trial court enhanced appellant’s punishment and sentenced him to fifty
years’ imprisonment.

      The First Appeal. Appellant accepted legal counsel for purposes of appeal,
where the main issue was whether the evidence was legally sufficient to support the
conviction. Because a legal sufficiency challenge requires an appellate court to
determine whether the prosecution proved the essential elements of the offense



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beyond a reasonable doubt, we referred to the animal cruelty statute to identify what
the essential elements actually were.

      Upon our reading of the statute, we found that there were different grades of
animal cruelty, and the elements depended on the grade. If the grade was a state jail
felony, then the elements that the prosecution had to prove were that the defendant
intentionally or knowingly tortured or killed an animal in a cruel manner. If the grade
was a third degree felony, then the prosecution had to prove the same elements as
required for a state jail felony, plus an aggravating element that the defendant had
previously been convicted twice of animal cruelty. See Act effective Sept. 1, 2007,
80th Leg., R.S., ch. 886, § 2, 2007 Tex. Gen. Laws 2163, 2165 (amended 2017)
(current version at Tex. Penal Code § 42.092).

      We focused on the elements of the third degree felony because that was the
grade reflected in the trial court’s judgment of conviction. Even though the
aggravating element is essential to the third degree felony, the parties wholly failed
to address it in their appellate briefing. And based on our review of the trial
transcript, the prosecution made no effort to even prove the aggravating element. We
suspected that the prosecution had actually pursued a conviction for a state jail felony
and that the trial court misapplied a different law by treating the deadly weapon
finding as an element of a third degree felony, rather than, as the law correctly
provides, an enhancement that simply enlarges the punishment range of a state jail
felony to the punishment range of a third degree felony, without changing the grade
of the adjudicated offense. See Tex. Penal Code § 12.35(c)(1).

      As we grappled with these issues, the legal landscape changed. In Prichard v.
State, 533 S.W.3d 315 (Tex. Crim. App. 2017), decided during the pendency of
appellant’s first appeal, the Court of Criminal Appeals held that a deadly weapon
finding could not be obtained in a case where the victim of the offense was non-

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human. Because appellant had asserted a trial objection along those lines, and
because he (but not his appointed counsel) had filed a pro se brief raising the same
issue on appeal, we invited the parties to file supplemental briefs addressing the
application of Prichard, as well as whether the evidence was otherwise sufficient to
support a conviction for a third degree felony, as opposed to a state jail felony.

      The State responded that the deadly weapon finding would need to be deleted
in the wake of Prichard because the victim of appellant’s offense was a puppy and
not a human. In one other point, which was not briefed at length, the State also
conceded that there was no evidence that appellant had previously been convicted
twice of animal cruelty, as required for the aggravating element of the third degree
felony.

      In light of the supplemental briefing, we deleted the deadly weapon finding
pursuant to Prichard. We also held that the evidence was legally insufficient to
support the conviction for the third degree felony because there was no evidence that
appellant had previously been convicted twice of animal cruelty. However, because
we determined that there was legally sufficient evidence to support a conviction for
the state jail felony, which was a lesser-included offense, we reformed the conviction
to the state jail felony and remanded for a new trial on punishment only. See Justice
v. State, 532 S.W.3d 862, 866 (Tex. App.—Houston [14th Dist.] 2017, no pet.).

      The Second Trial. Upon remand, appellant accepted the representation of new
counsel, and counsel stipulated that the trial court could take judicial notice of all of
the evidence that had been admitted at the previous trial. So rather than present any
new evidence, the parties proceeded to argument, where they focused primarily on
the applicable range of punishment.

      The prosecution argued that, even though the conviction was reformed to a
state jail felony, appellant could still be sentenced under the punishment range for a
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second degree felony because of his two prior felony convictions for aggravated
assault of a peace officer. This argument invoked the statute for enhanced penalties
for repeat and habitual felony offenders. See Tex. Penal Code § 12.425(b).

      The defense argued that the prosecution could not enhance appellant’s
punishment with the prior convictions, citing the constitutional protection against
double jeopardy. The defense essentially asserted that appellant could only be
sentenced within the range of a simple state jail felony.

      The trial court agreed with the prosecution and, after finding the enhancement
allegations to be true again, assessed punishment at twenty years’ imprisonment,
which was the statutory maximum. This appeal followed.

          DOUBLE JEOPARDY AND COLLATERAL ESTOPPEL

      Unlike in his previous appeal, appellant has elected to completely forego legal
counsel and represent himself in this current appeal. As we explain next, all of his
pro se arguments are premised on a fundamental misunderstanding of legal terms
and concepts.

      Appellant begins his argument with Ex parte Navarro, 523 S.W.3d 777 (Tex.
App.—Houston [14th Dist.] 2017, pet. ref’d). In that case, we held that when an
appellate court determines that there is no evidence of an aggravating element, but
the evidence is otherwise sufficient to support a lesser-included offense, the
appellate court should reform the conviction to the lesser-included offense and
remand for a new hearing on punishment only, unless there are other reversible
errors, in which case the appellate court should remand for an entirely new trial on
the lesser-included offense. We explained that the latter remedy would not run afoul
of the prohibition against double jeopardy because the factfinder in the original trial
had already determined that the elements of the lesser-included offense were proven


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beyond a reasonable doubt, and because the prosecution in the second trial would be
barred from relitigating the aggravating element.

      Appellant then tries to apply Navarro, which has some bearing on his case
insofar as we held in his first appeal that there was no evidence to support the
aggravating element required for the third degree felony. Our remedy was different
though: instead of remanding appellant’s case for a whole new trial like we did in
Navarro, we reformed his conviction to the lesser-included state jail felony and
remanded for a new hearing on punishment only. Appellant nevertheless argues that
the prosecution relitigated the aggravating element in his second punishment trial,
in violation of Navarro and other related authorities.

      Appellant’s argument is based on a misunderstanding of the phrase
“aggravating element,” which he erroneously identifies in his brief as encompassing
all three of the following questions of fact: (1) whether he had two previous
convictions for animal cruelty under former Section 42.092(c), which was applicable
at the time of his trial; (2) whether he used or exhibited a deadly weapon under
Section 12.35(c); and (3) whether he was a repeat and habitual felony offender with
two previous convictions for a felony other than a state jail felony under Section
12.425(b). Each of these facts worsens the commission of an offense, which a
layperson might consider “aggravating.” But from a legal standpoint, only the first
fact is elemental under the animal cruelty statute, and that element is aggravating
because it elevates a lower-grade offense to a higher-grade offense—in this case, a
state jail felony to a third degree felony. Cf. Black v. State, 26 S.W.3d 895, 897 (Tex.
Crim. App. 2000) (killing an individual under six years of age is an aggravating
element because it elevates murder to capital murder).

      When we only focus on the true aggravating element—i.e., whether appellant
had two previous convictions for animal cruelty—the record establishes that there

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was no jeopardy violation. Upon remand, the prosecution did not attempt to litigate
the aggravating element. Indeed, the prosecution had no opportunity to do so: that
elemental fact could only be tried during the guilt phase of a criminal proceeding,
and we remanded for a new determination as to punishment only—not guilt and
punishment.

      The other two facts that appellant mislabeled as elements—i.e., whether he
used or exhibited a deadly weapon, and whether he was a repeat and habitual felony
offender—are just punishment issues. See Oliva v. State, 548 S.W.3d 518, 531 (Tex.
Crim. App. 2018) (identifying the factors that distinguish punishment issues from
elements). In accordance with our judgment and mandate, the prosecution did not
relitigate the deadly weapon issue. However, the prosecution did relitigate whether
appellant was a repeat and habitual felony offender by asking the trial court to
enhance appellant’s punishment under the authority of Section 12.425(b), which
provides as follows:

      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.

      Appellant now argues that the prosecution was barred by double jeopardy and
collateral estoppel from seeking an enhancement under this statute because the
prosecution had already attempted a similar, but more severe, enhancement in the
first trial. Continuing with that premise, appellant argues that if the prosecution
cannot seek an enhancement, then there is no lesser-included offense at all, and he
must be acquitted. Both arguments fail. “Double-jeopardy principles do not bar the
State from proving [a defendant’s] status as an habitual offender at a second

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sentencing hearing.” Ex parte Miller, 330 S.W.3d 610, 623 n.34 (Tex. Crim. App.
2009). And even if the prosecution had failed to meet its burden of proof as to the
enhancement statute (which it did not), the remedy would not be an acquittal because
the enhancement was a punishment issue, not an element, and we already explained
in the first appeal that the evidence was legally sufficient to support every essential
element of the lesser-included state jail felony.

       In a related point, appellant contends that the aggravating element in former
Section 42.092(c) is actually an enhancement issue, and because of its specificity,
appellant believes that it should control over the more general enhancement
provision in Section 12.425(b). Appellant did not object on this basis during the
second punishment hearing, but even if he had, his argument fails on the merits
because Section 42.092 sets forth an element of an offense, whereas Section
12.425(b) sets forth an enhancement issue. Accordingly, there is no conflict between
the two provisions, and the prosecution’s failure to establish the aggravating element
in the first trial did not preclude the prosecution from seeking the enhancement in
the second trial.

                           PUNISHMENT ELECTION

      In a supplemental brief, appellant complains that the trial court failed to
conduct a hearing where he could elect to have his punishment assessed by a jury,
instead of a judge. This complaint invokes Article 44.29(b) of the Texas Code of
Criminal Procedure, which provides that when a case has been remanded by an
appellate court for a new punishment hearing, the trial court must empanel a jury “if
the defendant elects.”

      Appellant seems to suggest that the trial court was required to ask him
affirmatively whether he wanted a jury for the second punishment trial, but he cites
to no authority for such a proposition, and we are aware of none. In fact, a separate
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statute assigns the responsibility of assessing punishment to the trial court by default.
See Tex. Code Crim. Proc. art. 37.07(b). Appellant could have changed the default
rule by filing an election before his punishment hearing was underway, but the
record does not reveal that he ever attempted to do so. Moreover, appellant, through
his counsel, implicitly waived the right for a jury trial when counsel stipulated that
the trial court could take judicial notice of all of the evidence from the first trial.

      We conclude that this election issue is without merit. See Easton v. State, 920
S.W.2d 747, 751 (Tex. App.—Houston [1st Dist.] 1996, no pet.) (concluding that
the defendant had waived the right to have a jury assess his punishment upon remand
where the defendant failed to make the election).

                            INTERLOCUTORY APPEAL

      In one final issue, appellant argues that, after the trial court overruled his
jeopardy objection but before the trial court assessed his punishment, the trial court
should have allowed appellant to bring an interlocutory appeal of the jeopardy
ruling. This argument fails because appellant never requested to bring an
interlocutory appeal. See Tex. R. App. P. 33.1. Nor did he raise his jeopardy
objection through an application for writ of habeas corpus, which is the traditional
vehicle by which an appellate court has jurisdiction to review a jeopardy issue before
a final conviction. See Apolinar v. State, 820 S.W.2d 792, 794 (Tex. Crim. App.
1991) (“The courts of appeals do not have jurisdiction to review interlocutory orders
unless that jurisdiction has been expressly granted by law.”); Ex parte Robinson, 641
S.W.2d 552, 555 (Tex. Crim. App. 1982) (exception for jeopardy claims pursued
through pretrial habeas).




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                                 CONCLUSION

      The trial court’s judgment is affirmed.




                                      /s/       Tracy Christopher
                                                Justice



Panel consists of Justices Christopher, Wise, and Zimmerer.
Do Not Publish — Tex. R. App. P. 47.2(b).




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