                                                                          PD-1283-15
                      PD-1283-15                         COURT OF CRIMINAL APPEALS
                                                                         AUSTIN, TEXAS
                                                       Transmitted 9/28/2015 12:00:00 AM
                                                          Accepted 9/30/2015 1:28:35 PM
                                                                          ABEL ACOSTA
                        No. PD-_______-15                                         CLERK

      IN THE TEXAS COURT OF CRIMINAL APPEALS
                  AT AUSTIN, TEXAS

__________________________________________________________


            MILTON RAY CRAWFORD, Appellant

                               v.

                      THE STATE OF TEXAS

_________________________________________________________


     ON PETITION FOR DISCRETIONARY REVIEW
FROM THE DECISION BY THE TENTH COURT OF APPEALS
          IN CAUSE NUMBER 10-14-00127-CR

_________________________________________________________


 APPELLANT’S PETITION FOR DISCRETIONARY REVIEW

_________________________________________________________

                                    Richard E. Wetzel
                                    State Bar No. 21236300

                                    1411 West Avenue, Suite 100
                                    Austin, Texas 78701

                                    (512) 469-7943 - telephone
                                    (512) 474-5594 - facsimile
 September 30, 2015                 wetzel_law@1411west.com - email

                                    Attorney for Appellant
                                    Milton Ray Crawford
                        Identity of Parties and Counsel

Appellant:                                      Milton Ray Crawford

Trial Counsel for Appellant:                    Mark Maltsberger
                                                Attorney at Law
                                                219 E. William J. Bryan Pkwy.
                                                Bryan, TX
                                                77803

Appellate Counsel for Appellant:                Richard E. Wetzel
                                                Attorney at Law
                                                1411 West Ave.
                                                Suite 100
                                                Austin, TX
                                                78701

Appellee:                                       The State of Texas

Trial and Counsel for Appellee:                 Jason Goss
                                                Kara Comte
                                                Assistant District Attorneys
                                                300 E. 26th Street
                                                Bryan, TX
                                                77803

Appellate Counsel for Appellee:                 Doug Howell
                                                Assistant District Attorney
                                                300 E. 26th Street
                                                Bryan, TX
                                                77803

Trial Judge:                                    Hon. Travis Bryan, III
                                                272nd District Court
                                                Brazos County, Texas




                                      ii
                                  Table of Contents
                                                                                                Page

Identity of Parties and Counsel                       . . . . . . . . . . . . . . . . . . . . . . . . ii

Table of Contents                                     . . . . . . . . . . . . . . . . . . . . . . . . iii

Index of Authorities                                  . . . . . . . . . . . . . . . . . . . . . . . . iv

Statement Regarding Oral Argument                     . . . . . . . . . . . . . . . . . . . . . . . . .1

Statement of the Case                                 . . . . . . . . . . . . . . . . . . . . . . . . .1

Statement of Procedural History                       . . . . . . . . . . . . . . . . . . . . . . . . .2

Question for Review                                   . . . . . . . . . . . . . . . . . . . . . . . . .2
Argument in Support of Question for Review            . . . . . . . . . . . . . . . . . . . . . . . . .2

Is TEX. CRIM. PROC. CODE art. 62.102(c) the exclusive enhancement of
punishment provision for an offender who repeatedly or habitually fails to register
as a sex offender?

Prayer                                                . . . . . . . . . . . . . . . . . . . . . . . . .7

Certificate of Compliance                             . . . . . . . . . . . . . . . . . . . . . . . . .8

Certificate of Service                                . . . . . . . . . . . . . . . . . . . . . . . . .9

Appendix                                              . . . . . . . . . . . . . . . . . . . . . . . . .9




                                         iii
                                     Index of Authorities
                                                                                                      Page
Cases

Barker v. State, 335 S.W.3d 731
(Tex. App.—Houston [14th Dist.] 2011, pet. ref'd) . . . . . . . . . . . . . . . . . . . . . . . . 5

Beck, Ex parte, 922 S.W.2d 181
(Tex. Crim. App. 1996)                                       ........................5

Cheney v. State, 755 S.W.2d 123
(Tex. Crim. App. 1988)                                       ........................4

Crawford v. State, No. 10-14-00127-CR
(Tex. App. – Waco 2015, pet. pending)                        . . . . . . . . . . . . . . . . . . . . . . 2, 5

Dillehey v. State, 815 S.W.2d 623
(Tex. Crim. App. 1991)                                       ........................4

Ford v. State, 334 S.W.3d 230
(Tex. Crim. App. 2011)                                       ........................4

Harris, Ex parte, 495 S.W.2d 231
(Tex. Crim. App. 1973)                                       ........................6

Heath v. State, 817 S.W.2d 335
(Tex. Crim. App. 1991)                                       ........................5

McIver, Ex parte, 586 S.W.2d 851
(Tex. Crim. App. 1979)                                       ........................5

Miller, Ex parte, 921 S.W.2d 239
(Tex. Crim. App. 1996)                                       ........................5

Mikel v. State, 167 S.W.3d 556
(Tex. App. - Houston [14th Dist.] 2005, no pet.)             ........................6

Mizell v, State, 119 S.W.3d 804
(Tex. Crim. App. 2003)                                       ........................6


                                                iv
Reyes v. State, 96 S.W.3d 603
(Tex. App.—Houston [1st Dist.] 2002, pet. ref'd)   . . . . . . . . . . . . . . . . . . . . . 4, 5

Rich, Ex parte, 194 S.W.3d 508
(Tex. Crim. App. 2006)                             ........................7

Sanders v. State, 785 S.W.2d 445
(Tex. App. – San Antonio 1990, no pet.)            ........................6

State v. Mancuso, 919 S.W.2d 86
(Tex. Crim. App. 1996)                             ........................4

White, Ex parte, 659 S.W.2d 434
(Tex. Crim. App. 1983)                             ........................5

Statutes

TEX. CRIM. PROC. CODE art. 62.058(a)               . . . . . . . . . . . . . . . . . . . . passim

TEX. CRIM. PROC. CODE art. 62.102(a)               . . . . . . . . . . . . . . . . . . . . passim

TEX. CRIM. PROC. CODE art. 62.102(b)(2)            . . . . . . . . . . . . . . . . . . . . passim

TEX. CRIM. PROC. CODE art. 62.102(c)               . . . . . . . . . . . . . . . . . . . . passim

TEX. GOV’T CODE § 311.021                          ........................4

TEX. GOV’T CODE § 311.026(a)                       ........................4

TEX. GOV’T CODE § 311.026(b)                       ........................4

TEX. PEN. CODE § 12.33                             ........................3

TEX. PEN. CODE § 12.42(d)                          . . . . . . . . . . . . . . . . . . . . passim




                                          v
Rules

TEX. R. APP. P. 9.4            . . . . . . . . . . . . . . . . . . . . . . . . .8

TEX. R. APP. P. 66.3(b)        . . . . . . . . . . . . . . . . . . . . . . . . .7




                          vi
                      Statement Regarding Oral Argument


      Argument is requested in the event his petition for discretionary review is

granted. The question presented on discretionary review is both legally complex

and factually intensive. Argument would be of assistance to the court in the

decisional process.


                              Statement of the Case


      Milton Ray Crawford was indicted by a Brazos County grand jury for

committing the offense of failing to verify his sex offender registration on an

annual basis on or about March 9, 2012 (CR 6). See TEX. CRIM. PROC. CODE

arts. 62.058(a), 62.102(a), and 62.102(b)(2). The indictment additionally alleged

two prior convictions for failing to register as a sex offender for enhancement of

punishment (CR 6). See TEX. PEN. CODE § 12.42(d). A jury was selected and

sworn (9 RR 241, 10 RR 31). Crawford entered a plea of not guilty to the indicted

offense (10 RR 31). The jury found Crawford guilty of the offense alleged in the

indictment (11 RR 172). Crawford elected for the jury to assess punishment (CR

157). He entered pleas of true to the prior convictions alleged for enhancement of

punishment (11 RR 207). The jury found the prior convictions true and assessed

punishment at 85 years in prison (12 RR 109). Crawford was sentenced in open




                                        -1-
court (12 RR 112). The trial court certified Crawford’s right to appeal (CR 164).

Notice of appeal was timely filed (CR 196).


                           Statement of Procedural History


      Five points of error were presented on direct appeal. The Court of Appeals

affirmed Crawford’s conviction and sentence in an unpublished opinion. Crawford

v. State, No. 10-14-00127-CR (Tex. App. – Waco 2015, pet. pending). No motion

for rehearing was filed.


                                Question for Review


Is TEX. CRIM. PROC. CODE art. 62.102(c) the exclusive enhancement of
punishment provision for an offender who repeatedly or habitually fails to
register as a sex offender?


                  Argument in Support of Question for Review


      On direct appeal, Crawford claimed his sentence was illegal because it was

unlawfully enhanced under TEX. PEN. CODE § 12.42(d). Crawford was indicted

by a Brazos County grand jury for committing the offense of failing to verify his

sex offender registration on an annual basis on or about March 9, 2012 (CR 6).

See TEX. CRIM. PROC. CODE arts. 62.058(a), 62.102(a), and 62.102(b)(2). The

indictment additionally alleged two prior convictions for failing to register as a sex

offender for enhancement of punishment (CR 6). See TEX. PEN. CODE § 12.42(d).

                                         -2-
Crawford entered pleas of true to the prior convictions alleged for enhancement of

punishment (11 RR 207). The court charged the jury the applicable range of

punishment was 25 to 99 years or life in prison (CR 171). The jury found the prior

convictions true and assessed punishment at 85 years in prison (12 RR 109).


      Crawford maintains his sentence was improperly enhanced because

enhancement was only available under the special and specific enhancement

provision for a repeat or habitual offender found guilty of a failure to register as a

sex offender under TEX. CRIM. PROC. CODE art. 62.102(c). The statute provides;


      If it is shown at the trial of a person for an offense or an attempt to
      commit an offense under this article that the person has previously
      been convicted of an offense or an attempt to commit an offense under
      this article, the punishment for the offense or attempt to commit the
      offense is increased to the punishment for the next highest degree of
      felony.


      Here, Crawford was indicted for a third degree felony offense under TEX.

CRIM. PROC. CODE art. 62.102(a)(2). In view of his prior convictions for failing

to report as a sex offender, the applicable range of punishment was that of a second

degree felony of 2 to 20 years and a fine of up to $10,000. See TEX. PEN. CODE §

12.33. Crawford submits art. 62.102(c) represents a legislative determination that

those who repeatedly fail to register as sex offenders are subject to increased

punishment under art. 62.102(c) but not the habitual felon punishment provisions

of § 12.42(d). Indeed, this Court has recognized that in a prosecution for failing to
                                         -3-
register as a sex offender, a prior conviction of the same nature increases the level

of punishment to that of the next highest felony degree under art. 62.102(c). See

Ford v. State, 334 S.W.3d 230, 235 (Tex. Crim. App. 2011). These arguments

were brought to the attention of the trial court and rejected (11 RR 196-197).


      It is presumed in the enactment of a statute that the entire statute and all

words in the statute are intended to be effective, and the language therein will

create a just and reasonable result. See TEX. GOV’T CODE § 311.021. If a general

provision conflicts with a specific provision, the provisions shall be construed, if

possible, so that effect is given to both. TEX. GOV’T CODE § 311.026(a); Dillehey

v. State, 815 S.W.2d 623, 632 (Tex. Crim. App. 1991); Cheney v. State, 755

S.W.2d 123, 126 (Tex. Crim. App. 1988). If the statutes are unable to be

reconciled, the specific statute will prevail as an exception to the general statute,

unless the general statute is the later enactment and the manifest intent is that the

general provisions prevail. TEX. GOV’T CODE § 311.026(b); State v. Mancuso, 919

S.W.2d 86, 88 (Tex. Crim. App. 1996). See Reyes v. State, 96 S.W.3d 603, 605

(Tex. App.—Houston [1st Dist.] 2002, pet. ref'd).


      Crawford maintains art. 62.102(c) can be reconciled with § 12.42 by

following the legislative mandate within art. 62.102(c) that it is the exclusive

enhancement of punishment provision for those repeatedly convicted of failing to


                                         -4-
register as a sex offender. Alternatively, if the statutes cannot be reconciled, then

the later enacted specific statute of art. 62.102(c) should prevail as an exception to

the general enhancement of punishment statute within § 12.42(d).


      In the Court of Appeals, Crawford acknowledges there is authority against

his current argument in both Barker v. State, 335 S.W.3d 731, 738 (Tex. App.—

Houston [14th Dist.] 2011, pet. ref'd) and Reyes, 96 S.W.3d at 605. Crawford

submits both cases were wrongly decided and the gratuitous comments concerning

the interplay between art. 62.102(c) and § 12.42(d) were dicta because the prior

enhancing convictions in both of those cases were not, as in Crawford’s case, for

failing to register as a sex offender. In Barker, punishment was enhanced with an

aggravated assault conviction and in Reyes, punishment was enhanced with

burglary and aggravated assault convictions. Id. The Court of Appeals disagreed

with Crawford’s challenges to Barker and Reyes upon finding they do not

“misstate the law.” Crawford, slip op. at 4.


      A defect which renders a sentence void may be raised at any time. Ex parte

Beck, 922 S.W.2d 181 (Tex. Crim. App. 1996) (citing Heath v. State, 817 S.W.2d

335, 336 (Tex. Crim. App. 1991) (opinion on original submission)); see also Ex

parte Miller, 921 S.W.2d 239 (Tex. Crim. App. 1996); Ex parte White, 659 S.W.2d

434, 435 (Tex. Crim. App. 1983); Ex parte McIver, 586 S.W.2d 851 (Tex. Crim.


                                         -5-
App. 1979); Ex parte Harris, 495 S.W.2d 231, 232 (Tex. Crim. App. 1973). In

fact, there has never been anything in Texas law that prevented any court with

jurisdiction over a criminal case from noticing and correcting an illegal sentence,

no matter when or how the relief was sought. Mizell v. State, 119 S.W.3d 804

(Tex. Crim. App. 2003).


      Furthermore, Crawford did not forfeit his claim by pleading true to the

enhancement paragraphs at the punishment hearing. Despite the general rule that a

plea of true to an enhancement paragraph relieves the State of its burden to prove a

prior conviction alleged for enhancement and forfeits the defendant's right to

appeal the insufficiency of evidence to prove the prior conviction, there is an

exception when the record affirmatively reflects that the enhancement is itself

improper. The exception originated in Sanders v. State, in which the Fourth Court

of Appeals held that a prior non-final conviction could not be used to enhance

punishment even where the defendant had pleaded true to the enhancement

paragraph characterizing the prior offense as final. 785 S.W.2d 445, 448 (Tex.

App. – San Antonio 1990, no pet.). In the interest of justice, the court of appeals

set aside the defendant’s enhanced punishment and remanded the case to the trial

court for the proper assessment of punishment. Id. Similarly, the Fourteenth Court

of Appeals applied this exception to a case in which the offenses used for

enhancement did not occur in the sequence alleged by the indictment. Mikel v.

                                        -6-
State, 167 S.W.3d 556 (Tex. App. - Houston [14th Dist.] 2005, no pet.) (even

though the defendant pleaded true at the punishment hearing, the court of appeals

concluded that the evidence was legally insufficient to prove the allegations in the

improper enhancement paragraph and remanded the case for a new punishment

hearing.). The Court of Criminal Appeals has expressed approval of the no

forfeiture by a plea of true opinions in Sanders and Mikel. See Ex parte Rich, 194

S.W.3d 508, 514 (Tex. Crim. App. 2006).


      Here, Crawford’s sentence was improperly enhanced under § 12.42(d). A

sentence of 85 years exceeds the lawful punishment which may be imposed for an

offense punished as a second degree felony. The Court of Appeals should have

vacated Crawford’s unlawful sentence and remanded the case for a new

punishment proceeding in which a lawful sentence within the range of a second

degree felony could be imposed.


      Crawford submits the question presented in an important question of state

law that has not been, but should be, settled by this Court. See TEX. R. APP. P.

66.3(b).


                                       Prayer


      Wherefore, premises considered, Milton Ray Crawford prays this Honorable

Court will grant this petition for discretionary review, reverse the judgment of the
                                        -7-
Court of Appeals, remand to the trial court for a new punishment hearing, or enter

any other relief appropriate under the facts and the law.


                                              Respectfully submitted,

                                              /s/ Richard E. Wetzel
                                              Richard E. Wetzel
                                              State Bar No. 21236300

                                              1411 West Avenue
                                              Suite 100
                                              Austin, TX 78701

                                              (512) 469-7943
                                              (512) 474-5594 – facsimile
                                              wetzel_law@1411west.com

                                              Attorney for Appellant
                                              Milton Ray Crawford


                            Certificate of Compliance


      This pleading complies with TEX. R. APP. P. 9.4. According to the word
count function of the computer program used to prepare the document, the
pleading contains 1,372 words excluding the items not to be included within the
word count limit.

                                              /s/ Richard E. Wetzel
                                              Richard E. Wetzel
                                              State Bar No. 21236300




                                        -8-
                              Certificate of Service

      This is to certify that a true and correct copy of the foregoing pleading was
mailed to counsel for the State, Doug Howell, Assistant District Attorney, at his
email address of dhowell@co.brazos.tx.us and Lisa McMinn, State Prosecuting
Attorney, at her email address of information@spa.texas.gov on this the 27th day of
September, 2015.

                                             /s/ Richard E. Wetzel
                                             Richard E. Wetzel
                                             State Bar No. 21236300


                                    Appendix




                                       -9-
                                  IN THE
                          TENTH COURT OF APPEALS

                                 No. 10-14-00127-CR

MILTON RAY CRAWFORD,
                                                             Appellant
v.

THE STATE OF TEXAS,
                                                             Appellee



                         From the 272nd District Court
                              Brazos County, Texas
                        Trial Court No. 13-04461-CRF-272


                          MEMORANDUM OPINION


      In 1984, Appellant Milton Ray Crawford pled guilty to the offense of sexual assault

and was sentenced to fifteen years in prison. Thereafter, he had two felony convictions

for failing to register as a sex offender, the second one being in Brazos County in 2009.

Crawford registered in 2009, 2010, and 2011. In 2013, Crawford was indicted for the third-

degree felony offense of failing to comply with sex-offender registration. See TEX. CODE

CRIM. PROC. ANN. art. 62.102(b)(2) (West Supp. 2014). The indictment alleged the two

prior convictions for failing to register as enhancements.
       Crawford testified that he thought that sex-offender registration was unfair to him

because it had not been required in 1984, and that in 2011, he received legal advice from

a legal-aid line that he did not have to register. He also believed that sex-offender

registration was not applicable because his conviction was not for the offense of

indecency with a child. In August of 2011, Crawford told Carla Field, who is responsible

for sex-offender registration in Brazos County, that he would no longer register, and she

told him that he was required to register for the rest of his life. Crawford admitted that

he did not register in March of 2012, which led to the instant charge. A jury found

Crawford guilty. He pled true to the two prior convictions, and the jury, after finding the

prior convictions true, assessed an 85-year prison sentence.          Asserting five issues,

Crawford appeals.

       In his first issue, Crawford contends that the 85-year sentence is illegal because the

punishment range was improperly enhanced under Penal Code section 12.42(d), which

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

               (d) 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
       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 ANN. § 12.42(d) (West Supp. 2014). In his second issue, Crawford

asserts that he was harmed by the improper enhancement because the jury was


Crawford v. State                                                                         Page 2
improperly charged on the punishment range; instead, he asserts that enhancement

should have been to a second-degree felony.

       Crawford asserts that enhancement could only be done under article 62.102(c),

which provides:

                If it is shown at the trial of a person for an offense or an attempt to
       commit an offense under this article that the person has previously been
       convicted of an offense or an attempt to commit an offense under this
       article, the punishment for the offense or the attempt to commit the offense
       is increased to the punishment for the next highest degree of felony.

TEX. CODE CRIM. PROC. ANN. art. 62.102(c).

        Crawford acknowledges that two of our sister courts have addressed this issue

adversely to his position but contends that they were wrongly decided or dicta. See Reyes

v. State, 96 S.W.3d 603, 605 (Tex. App.—Houston [1st Dist.] 2002, pet. ref’d) (“As such,

article 62.10(c) [now 62.102(c)] provides a very specific exception to the general

enhancement statute, but does not otherwise preclude the application of section 12.42.”).

              Appellant also argues that section 12.42(b) cannot be used to enhance
       his punishment because article 62.102 includes a unique punishment-
       enhancement section. Article 62.102(c) provides that an offender’s
       punishment level is increased to the next highest felony if he is found guilty
       of a failure-to-register offense and has previously been convicted of a
       failure-to-register offense. TEX. CODE CRIM. PROC. ANN. art. 62.102(c). The
       Court of Criminal Appeals recently agreed that article 62.102(c) is a
       punishment-enhancement provision and does not enhance the offense level
       of the charged offense. See Ford, 334 S.W.3d at 231-35. However, article
       62.102(c) is not implicated in appellant’s case because his punishment was
       not enhanced by a prior failure-to-register conviction, but by his prior
       aggravated-assault conviction. Moreover, we reject appellant’s contention
       that inclusion of subsection (c) to article 62.102 precludes the application of
       section 12.42(b) to enhance a defendant’s punishment for a failure-to-
       register conviction. We agree that a prior failure-to-register conviction could
       have been used to enhance appellant’s punishment to a first-degree felony under
       either article 62.102(c) or section 12.42(b). Thus, there is some overlap

Crawford v. State                                                                         Page 3
        between these statutes. However, punishment enhancement under article
        62.102(c) is not merely repetitive of that provided by section 12.42. For example,
        although article 62.102(c) provides for punishment enhancement to the next
        highest felony degree when the defendant has one prior failure-to-register
        conviction, under certain subsections of section 12.42, punishment for a failure-to-
        register conviction may be enhanced only if the defendant has two prior felony
        convictions. Compare TEX. CODE CRIM. PROC. ANN. art. 62.102(c), with TEX.
        PENAL CODE ANN. § 12.42(a)(1), (2). Furthermore, nothing in article 62.102(c)
        suggests that it is the exclusive provision governing punishment enhancement for
        a failure-to-register conviction. Accordingly, we reject appellants argument
        that article 62.102(c) precluded the State’s use of section 12.42(b) to enhance
        his punishment. See Reyes v. State, 96 S.W.3d 603, 605 (Tex. App.—Houston
        [1st Dist.] 2002, pet. ref’d) (rejecting similar argument concerning former
        version of article 62.102(c) and expressing “article 62.10(c) [predecessor of
        article 62.102] provides a very specific exception to the general
        enhancement statute, but does not otherwise preclude the application of
        section 12.42”). We conclude that appellant’s offense level for punishment
        was properly enhanced from a second-degree felony to a first-degree felony
        pursuant to section 12.42(b). See TEX. PENAL CODE ANN. § 12.42(b).

Barker v. State, 335 S.W.3d 731, 738 (Tex. App.—Houston [14th Dist.] 2011, pet. ref’d)

(emphases added).

        We are not persuaded that Barker and Reyes misstate the law. We hold that

Crawford’s sentence is not illegal and that he was not harmed. Issues one and two are

overruled.

        In issue three, Crawford asserts that the trial court abused its discretion by

allowing Crawford’s 1984 sexual-assault conviction “to serve quadruple duty in his

conviction and punishment assessed.”1 Largely relying on Ballard v. State, 149 S.W.3d 693

(Tex. App.—Austin 2004, pet. ref’d), Crawford contends that “having used Crawford’s


1
 Crawford alleges that the “quadruple duty” consisted of the 1984 sexual-assault conviction first serving
as the reportable conviction that gave rise to his duty to register. Second, it served as the sexually violent
offense that determined the term and frequency of his duty to register and thus made his failure to comply
a third-degree felony. The third and fourth duties were its serving as the basis on which prosecution was
brought for the two prior failure-to-register convictions.

Crawford v. State                                                                                      Page 4
1984 sexual assault conviction to prove that he had a duty to register as a sex offender (to

prove, in other words, that Crawford had the status of being required to register), the

State could not also use that conviction or a conviction derived therefrom to enhance his

punishment.”

       But as the State points out, in Ballard, the court held that the prohibited use of the

underlying sexual-assault conviction was as one of the two prior felony convictions to

punish the appellant as a habitual offender under Penal Code section 12.42(d). Id. at 696.

Crawford’s underlying sexual-assault conviction was not used to enhance his

punishment, as had been done in Ballard. We thus overrule issue three.

       Issues four and five contend that the trial court abused its discretion by failing to

grant a mistrial when the State twice allegedly made improper arguments in the

punishment phase. Proper jury argument includes: (1) summation of the evidence

presented at trial; (2) reasonable deduction drawn from that evidence; (3) answer to the

opposing counsel’s argument; or (4) a plea for law enforcement. York v. State, 258 S.W.3d

712, 717 (Tex. App.—Waco 2008, pet. ref’d) (citing Jackson v. State, 17 S.W.3d 664, 673 (Tex.

Crim. App. 2000)).

               The denial of a motion for mistrial, appropriate for “highly
       prejudicial and incurable errors,” is reviewed for abuse of discretion.
       Simpson v. State, 119 S.W.3d 262, 272 (Tex. Crim. App. 2003). We consider
       three factors when determining whether the trial court abused its discretion
       in overruling a motion for mistrial during punishment: (1) the severity of
       the misconduct (prejudicial effect); (2) curative measures; and (3) the
       certainty of the punishment assessed absent the misconduct (likelihood of
       the same punishment being assessed). Perez v. State, 187 S.W.3d 110, 112
       n.1 (Tex. App.—Waco 2006, no pet.) (quoting Hawkins v. State, 135 S.W.3d
       72, 77 (Tex. Crim. App. 2004)).


Crawford v. State                                                                      Page 5
Id. at 716.

       In issue four, Crawford alleges that the State improperly argued that the jury

should apply parole law to any sentence assessed against Crawford. In the punishment

phase, the prosecutor argued:

       So, I'm going to tell you right now, we’re asking for the high end of this
       sentence; and I'm going to take this time because the question will come up
       during your deliberations, I anticipate, what's the difference between 99
       years and life? The difference is that with the 99-year sentence, it is
       mathematically possible that he could get off of parole. With life, it’s not.

       Crawford objected, and the trial court sustained the objection and instructed the

jury to disregard the statement. Crawford then moved for a mistrial, which the trial court

denied.

       Citing an unpublished opinion, the State contends that the argument was not

improper.2 The State alternatively argues that the instruction to disregard cured any

error. We assume without deciding that the argument was improper, but we find that,

because the trial court’s prompt instruction to disregard cured any error, denying the

motion for mistrial was not an abuse of discretion. See at 716-17. Issue four is overruled.

       In issue five, Crawford asserts that the trial court abused its discretion by failing

to grant a mistrial when the State allegedly made an improper argument about Crawford

being a danger to every child he is around. In the punishment phase, the prosecutor

argued:

             You know what kind of man he is. You know where he belongs.
       Because on the streets of our community, he is nothing but a danger to


2
  Sepulveda v. State, No. 13-07-00627-CR, 2009 WL 1677530 (Tex. App.—Corpus Christi Feb. 12, 2009, pet.
ref’d) (mem. op., not designated for publication).

Crawford v. State                                                                               Page 6
       every single person he comes into contact with, to every single female that
       walks the streets, to every child that he’s around, he is a danger. Not only
       because - -

       The trial court sustained Crawford’s objection that the argument about children

was outside the evidence and promptly instructed the jury to disregard it. The trial court

then denied Crawford’s motion for mistrial.

       In the punishment phase, Crawford’s niece Kim testified that she had not had an

objection to Crawford’s possibly living with her in the past and that she would not have

any concern about Crawford being around her one-year-old daughter because he had

“never tried anything with us or any other family members.” The State thus asserts that

the argument at issue was a proper response to this testimony. We agree, and we further

find that if any error occurred, it was cured by the trial court’s prompt instruction to the

jury to disregard it. Issue five is overruled.

       Having overruled all of Crawford’s issues, we affirm the trial court’s judgment.




                                                 REX D. DAVIS
                                                 Justice

Before Chief Justice Gray,
       Justice Davis, and
       Justice Scoggins
Affirmed
Opinion delivered and filed September 24, 2015
Do not publish
[CRPM]




Crawford v. State                                                                     Page 7
