                          COURT OF APPEALS
                          SECOND DISTRICT OF TEXAS
                               FORT WORTH

                               NO. 02-14-00344-CR


ANTONIO LEONARD BROWN                                                  APPELLANT

                                         V.

THE STATE OF TEXAS                                                           STATE


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          FROM THE 89TH DISTRICT COURT OF WICHITA COUNTY
                      TRIAL COURT NO. 53,525-C

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                                    OPINION

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      Appellant Antonio Leonard Brown appeals his seventeen-year sentence

arising from his conviction for assault against Helen Davis, with whom he had a

dating relationship. 1 In three issues, he contends that the evidence is insufficient




      1
      See Tex. Penal Code Ann. § 22.01(b)(2)(A) (West Supp. 2014). Appellant
argues only that there is error in his sentence, not his conviction.
to support the enhancement of his punishment range and that the trial court erred

by omitting instructions about matters related to the enhancement. We affirm.

                                 Background Facts

      According to statements that Davis initially made to police and to medical

personnel upon her arrival at a hospital, appellant, her boyfriend, cut her with a

knife one night in March 2013. 2       A grand jury indicted appellant for assault

against Davis. The indictment alleged that they had a dating relationship and

that appellant had been previously convicted of assault against a member of his

family. 3 Appellant filed several pretrial motions and chose the jury to set his

punishment if he was convicted.

      On the day that the trial began, the State filed a notice of its intent to seek

an enhanced punishment range based on appellant’s 1994 felony conviction from

Alabama for unlawfully possessing marijuana. The next day, the State amended

that notice. The amended notice stated in part,

            And it is further presented in and to said Court that . . . on the
      6th day of January 1994, in the [Circuit] Court of Montgomery
      County, Alabama in cause number CC-93-1943 on the docket of
      said court[,] [appellant] was duly and legally convicted in said last
      named court of a felony, to wit, unlawful possession of marijuana,
      upon an indictment then legally pending in said last named court and
      of which said court had jurisdiction; and said conviction was a final
      conviction for an offense committed by him . . . prior to the
      commission of the . . . offense hereinbefore charged against him.

      2
        At trial in August 2014, Davis denied that the events happened as she had
originally stated; she claimed that she had cut her leg by falling off a porch.
      3
       At trial, appellant stipulated to the truth of this previous conviction.


                                           2
Appellant filed a motion to quash this enhancement language, alleging that the

State would be “unable to prove that [the offense was] committed by

[appellant].” 4

       Appellant pled not guilty.      After hearing evidence and arguments

concerning his guilt, the jury found him guilty.       In the punishment phase,

appellant pled not true to being convicted of a felony in Alabama. The State

introduced evidence concerning the Alabama conviction (along with appellant’s

state and federal misdemeanor convictions) and rested. Appellant did not testify

or call any witnesses in the punishment phase.

       After each party rested and closed, appellant contended to the trial court

that the Alabama documents did not prove a final conviction, and he asked for

language regarding the finality of a conviction to be included in the jury charge on

punishment. The trial court denied that request.

       After the parties presented arguments concerning appellant’s punishment,

the jury found the enhancement allegation to be true and assessed the

punishment at seventeen years’ confinement.           The trial court sentenced

appellant in accordance with the jury’s verdict. Appellant brought this appeal.




       4
       At a hearing on this motion, appellant’s counsel noted that the Alabama
documents did not contain fingerprints. Appellant does not argue on appeal that
the Alabama documents were not sufficiently linked to him.


                                         3
                      Sufficiency of Enhancement Proof

      In his first issue, appellant contends that the evidence is insufficient to

prove beyond a reasonable doubt that he had a final felony conviction that could

be used to enhance his punishment range. He contends that the State did not

offer evidence at trial concerning the qualifications of a final judgment under

Alabama law, that the records admitted at trial do not prove a final judgment

under Texas law, and that the Alabama records are therefore “insufficient

standing alone for a finding of a prior conviction and penitentiary sentence

beyond a reasonable doubt.”

      When a defendant has been previously convicted of assault against

someone with whom the defendant has a dating or familial relationship, a

subsequent conviction of that offense is a third-degree felony that carries a

punishment range of two to ten years’ confinement. See Tex. Penal Code Ann.

§ 12.34(a) (West 2011), § 22.01(b)(2)(A). But when a defendant is on trial for a

third-degree felony and has been “finally” convicted of another felony (other than

a state-jail felony), the defendant faces the second-degree-punishment range of

two to twenty years’ confinement. See id. § 12.33(a) (West 2011), § 12.42(a)

(West Supp. 2014).    Convictions obtained outside of Texas are classified as

felonies for sentence-enhancement purposes if imprisonment in a penitentiary is

“affixed to the offense as possible punishment.”        Tex. Penal Code Ann.

§ 12.41(1) (West 2011); see Esters v. State, No. 02-13-00219-CR, 2014 WL

5492726, at *3–4 (Tex. App.—Fort Worth Oct. 30, 2014, pet. ref’d) (mem. op.,


                                        4
not designated for publication) (citing Ex parte Blume, 618 S.W.2d 373, 376 (Tex.

Crim. App. 1981)).

      To establish a prior conviction for purposes of enhancement, the State

must show the existence of a prior conviction and the defendant’s link to that

conviction.   Flowers v. State, 220 S.W.3d 919, 921 (Tex. Crim. App. 2007).

Absent a defendant’s plea of “true” to an enhancement allegation, the State must

prove these two elements. See id. at 921–22. The trier of fact weighs the

credibility of each piece of evidence and determines whether the totality of the

evidence establishes the existence of the alleged conviction and its link to the

defendant beyond a reasonable doubt. Id. at 923. In reviewing the sufficiency of

the evidence to support a finding that an enhancement allegation is true, we

consider all the evidence in the light most favorable to the finding and determine

whether a rational trier of fact could have found the elements beyond a

reasonable doubt. See Forward v. State, 406 S.W.3d 601, 606 (Tex. App.—

Eastland 2013, no pet.).

      Appellant argues that the documents relating to the Alabama conviction

are insufficient to establish the existence of a final felony conviction because they

do not comply with the “[c]ompulsory [c]onditions” of article 42.01 of the Texas

Code of Criminal Procedure. See Tex. Code Crim. Proc. Ann. art. 42.01, § 1

(West Supp. 2014) (listing various information that a Texas judgment of

conviction must reflect). He contends, “The conviction relied upon by the State

cannot be shown to be a valid final judgment because the judgment is an out-of-


                                         5
state judgment that fails to comply with Texas law and no evidence was

[admitted] of the laws of the State purporting to render judgment.”

      We conclude, however, that appellant’s first issue rests on two faulty legal

propositions and should therefore be overruled.         First, the issue rests on

appellant’s explicit proposition that the “State must show a valid final judgment”

to prove the enhancement allegation. The appellant in Flowers made the same

argument, and the court of criminal appeals rejected it. See 220 S.W.3d at 919–

20, 924–25 (holding that even though the State did not present a judgment

related to the appellant’s prior DWI conviction, the evidence, comprising a

driver’s license record and a computer-generated printout from the county clerk,

was sufficient to prove the enhancement allegation). The court explained,

      There is no ‘best evidence’ rule in Texas that requires that the fact of
      a prior conviction be proven with any document, much less any
      specific document. While evidence of a certified copy of a final
      judgment and sentence may be a preferred and convenient means,
      the State may prove [a prior conviction] in a number of different
      ways, including (1) the defendant’s admission or stipulation,
      (2) testimony by a person who was present when the person was
      convicted of the specified crime and can identify the defendant as
      that person, or (3) documentary proof (such as a judgment) that
      contains sufficient information to establish both the existence of a
      prior conviction and the defendant’s identity as the person convicted.
      Just as there is more than one way to skin a cat, there is more than
      one way to prove a prior conviction.

             . . . Any type of evidence, documentary or testimonial, might
      suffice.

Id. at 921–22 (footnotes omitted).




                                         6
      The Alabama documents are not specifically labeled as comprising a

judgment, but they reflect, among other information, the case number, appellant’s

name, a date of birth, a description of the charge, the date of the indictment, the

date of arrest, appellant’s entry of a guilty plea, the trial court’s finding of guilt, a

description of the punishment as a partly suspended sentence of three years’

confinement in the penitentiary, and the last four digits of a social security

number.    Assuming that the documents that contain this information do not

qualify as a “valid . . . judgment” as appellant defines that term, appellant does

not contest that they otherwise provide sufficient information to prove that he was

previously convicted of a felony and link him to the conviction. See id. at 921,

924–25.

      Second, even if the State had been required to present a judgment to

prove the Alabama conviction, appellant’s first issue rests on the incorrect legal

proposition that the judgment could not provide sufficient proof for enhancement

purposes if it failed to comply with the requirements of article 42.01.            Texas

authority establishes that a judgment that fails to comply with statutory

requirements, including article 42.01’s requirements, although correctable on

direct appeal, is not void and may serve as sufficient proof of a final conviction for

enhancement purposes. 5 See Malone v. State, No. 12-09-00128-CR, 2010 WL


      5
       Appellant contends,

      [T]he Alabama [records], . . . [fail] to comply with [several] portions of
      Code of Criminal Procedure[,] Article 42.01[,] section 1 . . . . As a

                                           7
702248, at *2 (Tex. App.—Tyler Feb. 26, 2010, no pet.) (mem. op., not

designated for publication) (holding that a prior conviction was not void and could

be used for enhancement although contrary to article 42.01, it was not signed);

Aurich v. State, No. 02-03-00412-CR, 2005 WL 1355991, at *2 (Tex. App.—Fort

Worth June 9, 2005, pet. ref’d) (mem. op., not designated for publication) (“[T]o

the extent the judgments in appellant’s pen packets did not comply with article

42.01, appellant’s convictions were not void, but merely voidable.”); Webb v.

State, No. 05-00-02104-CR, 2002 WL 851730, at *2 (Tex. App.—Dallas May 6,

2002, no pet.) (mem. op., not designated for publication) (concluding that a prior

conviction for delivery of marijuana could be used for enhancement although the

judgment related to that conviction did not comply with article 42.01 because it

did not contain certain language or a thumbprint); Pereira v. State, No. 05-97-

00116-CR, 1998 WL 749179, at *1 (Tex. App.—Dallas Oct. 28, 1998, no pet.)

(op. on reh’g) (not designated for publication) (disagreeing that the “State’s proof

must comply with all the subsections of article 42.01” to be used for

enhancement); Porter v. State, 757 S.W.2d 889, 891 (Tex. App.—Beaumont

1988, no pet.) (holding that a Florida judgment was not void, was not subject to a

collateral attack, and could be used for enhancement even though it did not state

the defendant’s plea to the offense, as required by article 42.01); see also Nowell



      direct result of these failures, the sufficiency of the Alabama [records
      fail] as a matter of law, and use of that conviction to enhance
      Appellant’s sentencing range is error.


                                         8
v. State, No. 02-10-00479-CR, 2011 WL 4712009, at *1–2 (Tex. App.—Fort

Worth Oct. 6, 2011, no pet.) (mem. op., not designated for publication) (holding

that a prior conviction could be used for enhancement purposes although it was

obtained in violation of another provision in the code of criminal procedure);

Prado v. State, 822 S.W.2d 819, 820–21 (Tex. App.—Eastland 1992, pet. ref’d)

(holding that a DWI conviction could be used for a jurisdictional enhancement

although it was obtained in violation of a state statute that required the county

attorney to attend court at the time of the plea).

      Appellant principally relies on three cases, including two of our own

decisions, to argue that the Alabama records are insufficient to support

enhancement because they fail to comply with article 42.01. All three cases are

distinguishable. See Langston v. State, 776 S.W.2d 586, 587–88 (Tex. Crim.

App. 1989) (concluding that records from Kansas were inadmissible because

they did not affirmatively show that the defendant was finally convicted of any

offense); Gaddy v. State, No. 02-09-00347-CR, 2011 WL 1901972, at *5–12

(Tex. App.—Fort Worth May 19, 2011) (mem. op., not designated for publication)

(recognizing that judgments that are merely voidable cannot be collaterally

attacked but concluding that a defendant could challenge alleged convictions

from New Mexico as void because the convictions showed that the defendant’s

constitutional right to counsel had been violated), 6 vacated on other grounds, No.


      6
       Appellant does not assert a constitutional violation of his right to counsel
with respect to his Alabama conviction; the records show that he had counsel.

                                          9
PD-1118-11, 2012 WL 4448757, at *1 (Tex. Crim. App. Sept. 26, 2012) (not

designated for publication); Mosqueda v. State, 936 S.W.2d 714, 715–17 (Tex.

App.—Fort Worth 1996, no pet.) (holding that a prior judgment was insufficient to

establish a final conviction and therefore support enhancement when the State

introduced an order granting probation explicitly stating that the “verdict and

finding of guilty herein shall not be final”).

       In sum, we hold that the predicate upon which appellant bases the

argument in his first issue—that the State was required to present a judgment

complying with the various requirements of article 42.01 to sufficiently prove its

enhancement allegation—is erroneous. Because appellant does not otherwise

challenge the sufficiency of the evidence to prove the existence of a prior felony

conviction and his link to that conviction, we overrule his first issue. See Flowers,

220 S.W.3d at 921.




Furthermore, appellant does not explicitly argue that any of the alleged violations
of article 42.01 in this case rendered the Alabama conviction void, rather than
voidable (and therefore reversible or correctable only on direct appeal).

      We note that one of the Alabama documents contains the following
paragraph, below which the trial judge’s signature appears:

              The defendant comes before the Court, with attorney of
       record. The Court on the record . . . fully explained to Defendant all
       Constitutional rights. The court is convinced that Defendant comes
       into the Court voluntarily and understands all Constitutional
       rights. . . . [T]he court accepts the guilty plea and finds the
       defendant guilty and enters a judgment of guilt.


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                       Omitted Jury Charge Instructions

      In his second issue, appellant argues that the trial court “[e]rred by [f]ailing

to [i]nstruct the [j]ury on the [v]alidity of the Alabama [c]onviction” in the

punishment-phase jury charge.       Appellant does not propose what instruction

concerning the validity of the Alabama conviction should have been given. We

construe appellant’s second issue as depending on the contentions he raised

within his first issue, in which he argued that the Alabama conviction is not “valid”

because of a lack of compliance with article 42.01. 7 Because we have overruled

appellant’s first issue on the ground that it was based on legally incorrect

principles, we likewise overrule his second issue.

      In his third issue, appellant argues that the trial court erred by refusing his

request for the inclusion of language in the punishment-phase jury charge

concerning the finality of his Alabama conviction.          Appellant refers to the

following colloquy that occurred during a charge conference in the trial court:

             [DEFENSE COUNSEL]: Your Honor, I’m reading in [a legal
      treatise] again. It’s talking about -- it says, “Probation is not final for
      enhancement purposes unless it’s revoked,” . . . .



      7
       In the part of appellant’s reply brief where he discusses his second issue,
he contends, “Article 42.01 applied to the case, yet its requirements were omitted
from the jury instructions. . . . This is error.”

       To the extent that in his second issue, appellant discusses the trial court’s
denial of his request for the inclusion of language in the jury charge concerning
the finality of his Alabama conviction, we address that complaint below in our
resolution of appellant’s third issue.


                                          11
      [THE STATE]:     Your Honor, that’s talking about Texas
convictions. We have out-of-state convictions here in this case. . . .

      ....

       [DEFENSE COUNSEL]: . . . [There are] different definitions
of what final is. The Texas law says [unless probation is revoked]
then it is not a final conviction.

      . . . I would contend to the Court that this is not a final
conviction under Texas law.

       [THE STATE]: Judge, if the Court would like to look over the
[Alabama] judgment itself, it specifically states that the Defendant is
to be incarcerated in . . . a penitentiary and that meets the definition
for enhancement under any reasonable definition that the Court can
consider.

       [DEFENSE COUNSEL]: Your Honor, under Texas law, you
can put -- send somebody to prison for a period of time and suspend
that imposition and sentence under a shock probation and that’s not
a final sentence for enhancement purposes. And I don’t know that
there’s much difference as a matter of language.

      THE COURT: . . . The objection is overruled, is denied.

      ....

        [DEFENSE COUNSEL]: . . . I would request at this time a
definition of final for enhancement purposes to be included in the
Court’s Charge.

      [THE STATE]: Judge, I don’t believe that would be an
appropriate definition to include in the Court’s Charge. It’s -- a final
conviction isn’t specifically defined to my knowledge in the Code of
Criminal Procedure. I think it’s not appropriate for the Jury to hear
that.

      [DEFENSE COUNSEL]: It’s defined in the caselaw, Your
Honor, and I would ask that that would be included in there because
they are the ones that determine . . . when a conviction is final. [If
we] don’t give them instructions, how do they . . . know?




                                  12
The trial court denied appellant’s final request for a jury charge to contain a

definition of a “final” conviction.

       In our review of a jury charge, we first determine whether error occurred; if

error did not occur, our analysis ends. Kirsch v. State, 357 S.W.3d 645, 649

(Tex. Crim. App. 2012). If error occurred, whether it was preserved determines

the degree of harm required for reversal. Id.

       Error in the charge, if timely objected to in the trial court, requires reversal

if the error was “calculated to injure the rights of [the] defendant,” which means

no more than that there must be some harm to the accused from the error. Tex.

Code Crim. Proc. Ann. art. 36.19 (West 2006); Almanza v. State, 686 S.W.2d

157, 171 (Tex. Crim. App. 1985) (op. on reh’g); see also Reeves v. State, 420

S.W.3d 812, 816 (Tex. Crim. App. 2013). In other words, a properly preserved

error will require reversal as long as the error is not harmless. Almanza, 686

S.W.2d at 171.

       Appellant does not direct us to any authority particularly holding that a trial

court must instruct a jury about the definition of a “final” conviction for

enhancement purposes. But appellant argues on appeal that

       [t]aking into account [the] presumption that the jury follows the law
       as instructed, had the jury been correctly instructed regarding the
       finality of the Alabama judgment, the jury would have applied the
       correct sentencing range of 2 to 10 years . . . and could not have
       sentenced Appellant to the seventeen . . . year sentence that he
       actually received.

              ....



                                          13
              In essence, the Court’s refusal to charge the jury on the finality
      of the Alabama judgment resulted in the removal of the requirement
      that the Alabama conviction be proven. Without requiring proof of
      finality of the Alabama judgment, the Court allowed for the Jury to
      assess enhanced punishment in the absence of sufficient proof of
      applicable law.

      Contrary to this argument, we conclude that even if instructions had been

included to correctly define the finality of the Alabama judgment, the result of the

trial would not have been different. For enhancement of a third-degree felony to

a second-degree-felony punishment range, Texas law requires the State to prove

that the defendant “has previously been finally convicted of a felony.” Tex. Penal

Code Ann. § 12.42(a) (emphasis added). 8      As appellant’s trial counsel argued, a

conviction obtained in Texas that includes a probated sentence is not “final” for

purposes of enhancement unless probation is revoked. See Ex parte White, 211

S.W.3d 316, 319 (Tex. Crim. App. 2007); Throneberry v. State, 109 S.W.3d 52,

56 (Tex. App.—Fort Worth 2003, no pet.). But when a foreign conviction may be

properly used for enhancement purposes in the state in which it arose, it may

likewise be used in Texas. See Ajak v. State, No. 07-14-00018-CR, 2014 WL

3002811, at *1 (Tex. App.—Amarillo July 1, 2014, no pet.) (mem. op., not

designated for publication) (“Assuming arguendo that the judgment must be final,

the law of Virginia determines whether or not it is so.”); Moore v. State, No. 05-

10-01306-CR, 2012 WL 858606, at *7 (Tex. App.—Dallas Mar. 15, 2012, pet.


      8
      The trial court’s punishment-phase charge to the jury tracked this
language but did not inform the jury about how a felony conviction becomes final.


                                         14
ref’d) (not designated for publication); Ramos v. State, 351 S.W.3d 913, 915

(Tex. App.—Amarillo 2011, pet. ref’d) (stating that appellate courts “use the law

of the jurisdiction from which the conviction arose to determine its finality for

purposes of enhancement in Texas” and therefore allowing California convictions

to enhance a Texas sentence because in California, convictions resulting in

probation are considered final); Skillern v. State, 890 S.W.2d 849, 883 (Tex.

App.—Austin 1994, pet. ref’d) (holding similarly with regard to a federal

conviction); cf. DiRemiggio v. State, 637 S.W.2d 926, 928 (Tex. Crim. App.

[Panel Op.] 1982) (holding that a Virginia conviction could not be used for

enhancement because “the State made no effort whatever to enlighten the trial

court . . . that such a conviction was considered to be ‘final’ under Virginia law”).

      Here, the trial court admitted State’s Exhibit 17, a copy of the Alabama

sentence-enhancement statute. Cf. Moore, 2012 WL 858606, at *8 (“In order to

determine whether the Oklahoma conviction was final and could have been used

for enhancement in Oklahoma, we consider Oklahoma’s repeat offender

statute.”). That statute states that enhancement is available when a “criminal

defendant has been previously convicted of a felony”; the plain language of the

statute does not require a “final” conviction or exclude convictions that result in

probation. See Ala. Code § 13A-5-9(a); see also Watson v. State, 392 So. 2d

1274, 1278–79 (Ala. Crim. App. 1980) (holding that under section 13A-5-9, a

conviction may be used for enhancement even though the defendant receives

probation and is never incarcerated), writ denied sub nom. Ex parte Watson, 392


                                          15
So. 2d 1280 (Ala. 1981).        Thus, appellant’s conviction could be used for

enhancement in Alabama, and it may be used for enhancement in Texas. See

Moore, 2012 WL 858606, at *7; see also Mitchell v. State, No. 05-06-01706-CR,

2008 WL 713635, at *1 (Tex. App.—Dallas Mar. 18, 2008, no pet.) (mem. op.,

not designated for publication) (stating that “if an out-of-state conviction may be

used for enhancement in the foreign state, it may be used under section 12.42

for enhancement”).

      For these reasons, we conclude that even if the trial court erred by not

including language in the jury charge defining when a conviction is “final” and

therefore usable for enhancement under section 12.42 of the penal code, that

error was harmless because under the correct standards, appellant’s Alabama

conviction was usable for enhancement. See Almanza, 686 S.W.2d at 171. We

overrule appellant’s third issue.

                                    Conclusion

      Having overruled all of appellant’s issues, we affirm the trial court’s

judgment.

                                                   /s/ Terrie Livingston

                                                   TERRIE LIVINGSTON
                                                   CHIEF JUSTICE

PANEL: LIVINGSTON, C.J.; GARDNER and MEIER, JJ.

PUBLISH

DELIVERED: June 18, 2015



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