                                                                             PD-0061-15
                                                            COURT OF CRIMINAL APPEALS
                                                                             AUSTIN, TEXAS
                                                         Transmitted 1/23/2015 10:16:06 AM
                                                            Accepted 1/29/2015 9:45:23 AM
                                                                              ABEL ACOSTA
                             PD-0061-15                                               CLERK

                         CARLTON WOOD,
                                  Appellant
                               v.

                      THE STATE OF TEXAS,
                                 Appellee


       STATE’S PETITION FOR DISCRETIONARY REVIEW



                    From the Court of Appeals for the
                Fourth Court of Appeals District of Texas
                 at San Antonio, No. 04-14-00224-CR,
                     and the 226th District Court of
              Bexar County, Trial Court No. 2013-CR-3690,


                                NICHOLAS “NICO” LaHOOD
                                Criminal District Attorney
                                Bexar County, Texas

                                JAY BRANDON
                                Assistant District Attorney
                                SBN 02880500
                                101 W. Nueva
                                San Antonio TX 78205
                                (210) 335-2418
                                jay.brandon@bexar.org



January 29, 2015
                  IDENTITY OF PARTIES AND COUNSEL


Carlton Wood              -    Appellant (defendant in the trial court)

Edward A. Bartolomei      -    Appellant‟s attorneys at trial
Robbie L. Ward

David L. McLane           -    Appellant‟s attorney on appeal

Stacy Esterak             -    Attorneys for the State at trial
Clayton Head

Hon. Sid Harle            -    Judge Presiding at trial

Jay Brandon               -    Attorney for the State on appeal




                                 2
                       TABLE OF CONTENTS
                                           Page

INDEX OF AUTHORITIES                        2

INDEX OF AUTHORITIES                        5

STATEMENT REGARDING ORAL ARGUMENT           6

STATEMENT OF THE CASE                       6

STATEMENT OF PROCEDURAL HISTORY             6

GROUNDS FOR REVIEW

GROUND FOR REVIEW ONE
THE COURT OF APPEALS
ERRED BY REFUSING TO
APPLY A PRESUMPTION
THAT THE DEFENDANT PLED
TRUE TO THE ENHANCEMENT.                    8

GROUND FOR REVIEW TWO
WHERE THE TRIAL COURT
FINDS AN ENHANCEMENT TRUE
AND THE DEFENDANT DOES NOT
OBJECT, THE PRESUMPTION
SHOULD BE APPLIED.                          8

GROUND FOR REVIEW THREE
THE EVIDENCE SUPPORTED
THE COURT’S FINDING OF
TRUE, CONTRARY TO THE
COURT OF APPEALS’ HOLDING.                  8

PRAYER FOR RELIEF                           16

CERTIFICATE OF COMPLIANCE                   17

CERTIFICATE OF SERVICE                      17

                               3
APPENDIX: Court of Appeals opinion       attachment




                                     4
                         INDEX OF AUTHORITIES

                                                                   Page
Brown v. State, No. 14-08-00614-CR (Tex.App.—Houston
     [14th Dist.] 2011, no pet.)                                    9

Flowers v. State, 220 S.W.3d 919 (Tex.Crim.App. 2007)              11

Freda v. State, 704 S.W.2d 41 (Tex.Crim.App. 1986)                 12

Hazelwood v. State, 838 S.W.2d 647 (Tex. App.—Corpus
     Christi 1992, no pet.)                                         9

Hunt v. State, 994 S.W.2d 206 (Tex.App.—Texarkana 1999, no pet.)    9

Osteen v. State, 642 S.W.2d 169 (Tex.Crim.App. 1982)                9

Richardson v. State, 957 S.W.2d 854 (Tex.App.—Tyler 1997,
      pet. ref‟d)                                                  10

Sharp v. State, 707 S.W.2d 611 (Tex.Crim.App. 1986)                 9

Tenner v. State, 850 S.W.2d 818 (Tex.App.—El Paso 1993,
     no pet.)                                                      12

Warren v. State, 693 S.W.2d 414 (Tex.Crim.App. 1985)                9

Wilson v. State, 671 S.W.2d 524 ([Tex.Crim.App. 1984)               8

Wood v. State, ___ S.W.3d ___, No. 04-14-00224-CR
      (Tex. App.—San Antonio 2014, pet. filed)                      4




                                      5
                STATEMENT REGARDING ORAL ARGUMENT

      In this opinion the Fourth Court of Appeals has placed itself out of step with

almost all the other appellate jurisdictions in this state. Not only did the court

refuse to apply a presumption found in the Rules of Appellate Procedure, it

discounted evidence of Appellant‟s prior conviction. Oral argument would be

useful for answering any questions this Court may have about the ways the court of

appeals‟ opinion went wrong.



                           STATEMENT OF THE CASE

      Appellant was convicted in a bench trial of evading arrest/ vehicle. After a

presentence investigation report and brief punishment hearing, the court assessed

punishment at imprisonment for four years.



                   STATEMENT OF PROCEDURAL HISTORY

      On December 17, 2013, the Fourth Court of Appeals handed down an

opinion reversing the punishment in this case and remanding to the trial court for

new punishment hearing. The published opinion is by Justice Rebeca Martinez,

joined by Justices Alvarez and Chapa. Wood v. State, ___ S.W.3d ___, No. 04-14-

00224-CR (Tex. App.—San Antonio 2014, pet. filed).




                                           6
TO THE HONORABLE JUDGES OF SAID COURT:


      On September 18, 2013, a panel of the Fourth Court of Appeals handed

down an opinion reversing the punishment in this case and remanding to the trial

court for new punishment hearing. The court specifically refused to apply the

presumption found in Rule of Appellate Procedure 44.2(c)(4) that a defendant has

pled to an indictment. Instead the court held the exact opposite, that a plea of true

to an enhancement count “must be affirmatively reflected by evidence in the

record.” This holding is contrary to many cases saying the presumption must be

applied in the face of a silent record.

      Furthermore, the trial court in this case announced at the beginning of the

punishment hearing, in front of Appellant and his counsel, that the enhancement

count had been found true. Appellant had an opportunity to make an issue of this

but did not. Appellant also testified during the hearing that he had been convicted

for possession of a controlled substance, the same offense alleged in the

enhancement.

      It is clear from the record that Appellant pled true to the enhancement

paragraph off the record. The Fourth Court erred by not applying the presumption.




                                          7
                          GROUND FOR REVIEW ONE
                           THE COURT OF APPEALS
                           ERRED BY REFUSING TO
                           APPLY A PRESUMPTION
                         THAT THE DEFENDANT PLED
                        TRUE TO THE ENHANCEMENT.

                        GROUND FOR REVIEW TWO
                        WHERE THE TRIAL COURT
                      FINDS AN ENHANCEMENT TRUE
                      AND THE DEFENDANT DOES NOT
                        OBJECT, THE PRESUMPTION
                           SHOULD BE APPLIED.

                        GROUND FOR REVIEW THREE
                         THE EVIDENCE SUPPORTED
                          THE COURT’S FINDING OF
                          TRUE, CONTRARY TO THE
                       COURT OF APPEALS’ HOLDING.

                        SUMMARY OF THE ARGUMENT

      The Rules of Appellate Procedure instruct appellate courts to presume a

defendant pled to the indictment, unless the contrary is made an issue in the trial

court. In this case the trial court announced the enhancement had been found true,

and Appellant did not make an issue of that finding. Appellant himself then

testified he had served time in prison for a conviction for the offense named in the

enhancement allegation. These facts perfectly support applying the presumption,

but the court of appeals refused to do so. In taking this stance, the Fourth Court

placed itself in conflict with several other courts of appeals in this state, as well as

this Court.


                                            8
                                   ARGUMENT

The Enhancement Allegation

      Appellant‟s indictment included a paragraph titled “Enhancement

Allegation,” which read as follows:

      And it is further presented in and to said Court that, before the
      commission of the offense alleged above, on the 23rd day of
      SEPTEMBER, A.D. 2002, in Cause No. 2002CR2129, in Bexar
      County, Texas, the defendant was convicted of the felony of POSS CS
      PG1 1 GRAM TO 4 GRAMS…

(CR 5)

The Trial Court’s Finding

      Appellant‟s was a bench trial. After the trial court found him guilty of

evading arrest, the court recessed for a punishment hearing. That hearing included

a presentence investigation report, which the court had reviewed. (RR3 3) At the

beginning of the hearing, the court said, “The enhancement has been found true.”

(RR3 3) No one objected to this finding or commented on it in any way. Then the

court heard punishment evidence.

      The docket sheet also shows that the enhancement was found true. (CR 66)

Other Evidence

      The PSI report obviously contained information the court read which is not

in the record. The court asked Appellant how much of his six-year prison term he




                                         9
had served. (RR3 4) There was no testimony or other evidence concerning the

length of Appellant‟s previous sentence.

      Appellant also testified that he had been convicted of possession of a

controlled substance and served prison time for it. (RR3 60-1) That was the

offense alleged for enhancement. Appellant said this was in “the 2000s,” but he

wasn‟t sure if it was 2002, the date alleged in the indictment. (RR3 61)

The Presumption

      Texas Rule of Appellate Procedure 44.2(c) says:

     Presumptions. Unless the following matters were disputed in the trial
     court, or unless the record affirmatively shows the contrary, the court
     of appeals must presume:
            (1) that venue was proved in the trial court;
            (2) that the jury was properly impaneled and sworn;
            (3) that the defendant was arraigned;
            (4) that the defendant pleaded to the indictment or other
     charging instrument; and
            (5) that the court‟s charge was certified by the trial court and
     filed by the clerk before it was read to the jury.
(emphasis added)

The Court of Appeals’ Holding

      The court of appeals acknowledged this presumption, but held, “However, a

defendant‟s plea of „true‟ to an enhancement allegation must be affirmatively

reflected by evidence in the record. Wilson[ v. State], 671 S.W.2d [524] at 525-26

([Tex.Crim.App. 1984)].” Wood, slip op. at 5. The court of appeals then proceeded




                                           10
to hold that the State had not put on sufficient evidence to uphold the finding of

true to the enhancement allegation. Id.

Argument

      The Wilson opinion was handed down from this Court in 1984. It does

indeed say what the court of appeals cited it as saying, but cites no authority for

that proposition. The Rules of Appellate Procedure were promulgated by this

Court (and the Supreme Court) to take effect September 1, 1986. Rule 44.2(c), set

out above, seems designed to overrule Wilson, sub silentio. Whatever the

intention, the rule now controls this situation.

      Since Wilson, this Court has held that the presumption of regularity in

proceedings controls unless the supposed error was called to the attention of the

trial court or the record affirmatively demonstrates the contrary. Sharp v. State, 707

S.W.2d 611, 616 (Tex.Crim.App. 1986). Warren v. State, 693 S.W.2d 414, 416

(Tex.Crim.App. 1985), points out that courts of appeals are to presume that the

defendant was arraigned and that he pleaded to the charging instrument, “unless

such matters were made an issue in the court below, or otherwise affirmatively

appears to the contrary from the record.”

      Many courts have applied the various presumptions found in this rule.

Osteen v. State, 642 S.W.2d 169, 171 (Tex.Crim.App. 1982)(based on the

predecessor to Rule 44.2(c); court must presume jury properly empaneled and


                                           11
sworn); Hunt v. State, 994 S.W.2d 206 (Tex.App.—Texarkana 1999, no pet.)(it is

to be presumed that the defendant pled to the indictment); Hazelwood v. State, 838

S.W.2d 647 (Tex. App.—Corpus Christi 1992, no pet.)(silence in the record does

not amount to an affirmative showing that a plea was not taken); Brown v. State,

No. 14-08-00614-CR (Tex.App.—Houston [14th Dist.] 2011, no pet.)

(memorandum opinion)(“we must presume a defendant was arraigned and pleaded

to the indictment unless these matters were disputed in the trial court or the record

affirmatively shows the contrary”).

      One of the most significant of these is Richardson v. State, 957 S.W.2d 854,

856 (Tex.App.—Tyler 1997, pet. ref‟d), which says, “[T]he record must

affirmatively show that the indictment in its entirety was not read, or trial counsel

must have called the omission to the attention of the court. Silence in the record

does not amount to an affirmative showing.” (emphasis added).

      The record in this case shows only a resounding silence in the record. The

trial court announced in open court that the enhancement had been found true.

Appellant had the perfect opportunity to call any omission in arraigning or

pleading to the trial court‟s attention but did not. Defense counsel apparently knew

as well as the court did that Appellant had pled true off the record. This is the

exact situation Rule 44.2 was designed to cover.

      The court of appeals‟ opinion holds, in effect, that there must be evidence in


                                          12
the record before this presumption may be honored. In other words, a fact may be

presumed true as long as the State proves it first. This misunderstands the nature

of a presumption, which is a fact to be presumed without evidence. If it needed

evidence, it wouldn‟t be a presumption.



Sufficient Evidence

      Aside from the presumption, there was sufficient evidence before the trial

court to prove that Appellant had been convicted of the prior offense alleged in the

indictment. The trial court obviously had evidence in the presentence investigation

report, to which the court referred when questioning Appellant about how much of

his sentence he had served. Furthermore, Appellant freely admitted that he had

been convicted of possession of a controlled substance, the offense alleged in the

indictment. Given the fact that an enhancement allegation does not have to be

proven with the same precision as guilt, this was sufficient evidence to support the

court‟s finding of true.

             To establish that a defendant has been convicted of a prior
      offense, the State must prove beyond a reasonable doubt that (1) a
      prior conviction exists, and (2) the defendant is linked to that
      conviction. No specific document or mode of proof is required to
      prove these two elements. 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… Just as there is more
      than one way to skin a cat, there is more than one way to prove a prior
      conviction.


                                          13
Flowers v. State, 220 S.W.3d 919, 921-22 (Tex.Crim.App. 2007).

      Appellant‟s own testimony proved both the existence of a prior conviction

and that he was linked to it. He had, in fact, served the time for that conviction.

Added to the information available to the court in the PSI report, this sufficed to

prove the prior conviction.

      That Appellant didn‟t remember the exact year of his conviction is

insignificant. He clearly knew the conviction the State alleged. The purpose of an

enhancement allegation is simply to give a defendant notice of the prior conviction

on which the State intends to rely. “It is well settled that it is not necessary to

allege prior convictions for the purpose of enhancement with the same particularity

which must be used in charging on the primary offense.” Freda v. State, 704

S.W.2d 41, 42 (Tex.Crim.App. 1986). Proof has been held sufficient where the

name of the offense, the date, the cause number, or the state of conviction has

varied from the claim in the enhancement count. See, Freda, supra; Woodward v.

State, No. 04-10-00815-CR, 2011 Tex.App. LEXIS 8706 (Tex.App.—San Antonio

2011, no pet.)(not designated for publication)(name of offense of prior conviction

incorrect); Foster v. State, No. 04-01-00040-CR, 2002 Tex.App. LEXIS 1081

(Tex. App.—San Antonio 2002, no pet.)(not designated for publication)

(enhancement count listed wrong date; affirmed). Appellant does not claim he was




                                           14
unfairly surprised by any variation. Tenner v. State, 850 S.W.2d 818, 820

(Tex.App.—El Paso 1993, no pet.). In fact, he clearly was not.

      The court of appeals held, “The State not only failed to prove the conviction

to be used for enhancement beyond a reasonable doubt, it failed to present even

prima facie evidence of the conviction.” Wood, supra, slip op. at 6. This holding is

contradictory to the teachings of Flowers, supra. Flowers says no documentary

evidence is required. The Fourth Court says it is. If a defendant‟s admission that

he was previously convicted of the offense alleged for enhancement isn‟t prima

facie evidence of that conviction, what is it? Flowers says, “Texas substantive

law does not require that the fact of a prior conviction be proven in any specific

manner…. Any type of evidence, documentary or testimonial, might suffice.” 220

S.W.3d at 922. The Fourth Court of Appeals, by contrast, seems to require

evidence of a document. Again, this is contrary to the law as stated by this Court.

Conclusion

      It is clear that everyone in the trial court knew facts that the court of appeals

did not. That is why the presumptions of Rule 44.2 exist. The trial court said

Appellant had been previously convicted, and no one in court disputed that fact.

Appellant himself admitted to it. It was only on appeal that the lack of a plea on

the record became an issue. But the rule requires the defendant to raise that issue

in the trial court. The court of appeals, relying on outdated precedent, has


                                          15
established in a published opinion requirements on trial courts not required by the

applicable rules or this Court‟s holdings. This Court should grant review and

reverse this judgment.

                               PRAYER FOR RELIEF

      The State prays that this Court will grant this petition, and after further

briefing and argument reverse the judgment of the court of appeals and affirm the

judgment of the trial court.

                                        Respectfully submitted,

                                        NICHOLAS “NICO” LaHOOD
                                        Criminal District Attorney
                                        Bexar County, Texas

                                        /s/ Jay Brandon
                                         ______________________________
                                         JAY BRANDON
                                         Assistant Criminal District Attorney
                                         Bexar County, Texas
                                         101 West Nueva, 3rd Floor
                                         San Antonio, Texas 78204
                                         (210) 335-2418
                                          jay.brandon@bexar.org
                                         State Bar No. 02880500
                                         Attorneys for the State




                                          16
                         CERTIFICATE OF COMPLIANCE

      I certify, in accordance with Rule 9.4 of the Texas Rules of Appellate Procedure

that this document contains 2,676 words.

                                       /s/ Jay Brandon
                                       _____________________________
                                       JAY BRANDON


                           CERTIFICATE OF SERVICE

      I certify that a copy of the foregoing brief was sent by electronic mail to

David L. McLane, Attorney for Appellant,, and to State Prosecuting Attorney Lisa

McMinn, 209 W. 14th Street, Suite 202, Austin TX 78701, on the 23rd day of

January, 2015.

                                       /s/ Jay Brandon
                                       ___________________________
                                       JAY BRANDON




                                         17
                              Fourth Court of Appeals
                                     San Antonio, Texas
                                             OPINION
                                        No. 04-14-00224-CR

                                          Carlton WOOD,
                                             Appellant

                                                 v.
                                                The
                                        The STATE of Texas,
                                              Appellee

                     From the 226th Judicial District Court, Bexar County, Texas
                                   Trial Court No. 2013-CR-3690
                              Honorable Sid L. Harle, Judge Presiding

Opinion by:       Rebeca C. Martinez, Justice

Sitting:          Rebeca C. Martinez, Justice
                  Patricia O. Alvarez, Justice
                  Luz Elena D. Chapa, Justice

Delivered and Filed: December 17, 2014

REVERSED AND REMANDED

           On appeal, Carlton Wood asserts there is insufficient evidence to support the enhanced

sentence he received for evading arrest with a motor vehicle. We agree and reverse that portion

of the judgment and remand for a new punishment hearing.

                                            BACKGROUND

           Wood was charged by indictment with having committed the third degree felony offense

of evading arrest with a vehicle, for which the punishment range is imprisonment for two to ten

years. TEX. PENAL CODE ANN. § 38.04 (West Supp. 2014); id. § 12.34(a) (West 2011). The
                                                                                       04-14-00224-CR


indictment contained an enhancement paragraph alleging that Wood was previously convicted of

possession of one to four grams of a controlled substance, Penalty Group 1, on September 23, 2002

in Bexar County, Texas, a third degree felony. TEX. HEALTH & SAFETY CODE ANN. § 481.115(a),

(c) (West 2010). If found true, the enhancement would elevate the punishment range for the

evading arrest offense to that of second degree felony, i.e., imprisonment for two to twenty years.

TEX. PENAL CODE ANN. § 12.42(a) (West Supp. 2014); id. § 12.33(a) (West 2011). Wood pled not

guilty to evading arrest, waived his right to a jury trial, and was tried by the court. The trial court

found Wood guilty of evading arrest with a vehicle as charged in the indictment. During the

punishment phase, the trial court found that the enhancement allegation was “true.” The court

denied Wood’s request for probation and sentenced Wood to four years’ imprisonment in the

Texas Department of Criminal Justice–Institutional Division. No fine was assessed. Wood timely

appealed.

                                              ANALYSIS

       In a single issue, Wood argues the finding in the judgment that the enhancement paragraph

is “true” is without any basis. Wood asserts that because he did not enter a plea of “true” to the

enhancement on the record and the State failed to present any evidence to prove up the prior

conviction, the trial court erred in finding the enhancement “true.” The State argues that because

Wood failed to object in the trial court, a presumption applies that he pled “true” to the

enhancement as recited in the judgment.

       During the guilt/innocence phase, Wood testified that he previously had “one drug

conviction” for which he had been to prison “in the 2000’s.” Wood provided no details concerning

that prior drug conviction, and stressed that he had been to prison only once.              On cross-

examination, the prosecutor questioned Wood about two prior charges for drug-related offenses:

(i) possession of one to four grams of a controlled substance on October 30, 2000; and (ii)
                                                 -2-
                                                                                     04-14-00224-CR


possession with intent to deliver four to 200 grams of a controlled substance on February 7, 2002.

Wood did not admit to being convicted of either of those charges and no documentary evidence

was presented by the State with regard to these alleged charges. The prosecutor did not question

Wood about the September 23, 2002 conviction for possession of one to four grams of a controlled

substance that was alleged in the enhancement paragraph of the indictment. No documentary proof

of that conviction was offered or admitted. After the trial court found Wood guilty of the evading

arrest charge, it ordered a pre-sentence investigation report to be prepared before sentencing.

        At the beginning of the punishment hearing, the trial court stated on the record, “[t]he

enhancement was found true.” The court did not take Wood’s plea of “true” or “not true” to the

enhancement on the record. During the hearing, the court did not specify whether its finding that

the enhancement was “true” was based on a plea of “true” (which does not appear in the record)

or on other proof of the prior conviction alleged in the indictment. No objection was raised by

Wood.    After the court’s statement that “the enhancement was found true,” the following

discussion occurred between the trial court, Wood, and defense counsel with regard to how much

time Wood served on the prior conviction:

        THE COURT:                    How long did you actually serve on that six-year term, Mr.
                                      Wood?

        DEFENDANT:                    The full six years, Your Honor.

        THE COURT:                    How come?

        DEFENSE COUNSEL:              No, you were on parole for three years.

        DEFENDANT:                    For three.

        THE COURT:                    So you did three.

        DEFENDANT:                    Be specific, yes. Three on parole and three.




                                                -3-
                                                                                      04-14-00224-CR


       The State argues that it is apparent from the above exchange that Wood and his counsel

were on notice the State was seeking an enhancement, were aware of the details of the prior

conviction used for the enhancement, and were not surprised or prejudiced by the court’s finding

that the enhancement was “true” — as evidenced by Wood’s failure to object which the State

asserts waived any error. See Marshall v. State, 185 S.W.3d 899, 902-03 (Tex. Crim. App. 2006)

(defendant is on notice that State is seeking greater penalty when enhancement is contained in

indictment and not waived, and specific trial objection is necessary to preserve error due to court’s

failure to read enhancement allegation and take defendant’s plea). The State’s argument misses

the mark because Wood is not complaining that he failed to receive proper notice of the prior

conviction to be used for enhancement, but, rather, that the State failed to prove the prior

conviction.

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

elements beyond a reasonable doubt: (i) the existence of a prior conviction; and (ii) the defendant’s

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

defendant’s plea of “true” to the enhancement allegation satisfies the State’s burden of proof.

Wilson v. State, 671 S.W.2d 524, 525 (Tex. Crim. App. 1984). Absent a plea of “true,” the State

must prove the two elements by introducing evidence such as the defendant’s admission or

stipulation, documentary proof, e.g., a judgment, that contains sufficient information showing the

defendant’s identity as the person convicted of the prior offense, or testimony by a person with

knowledge of the defendant’s prior conviction. Flowers, 220 S.W.3d 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 is “true,” we consider all the evidence in the light most favorable to the finding and
                                                -4-
                                                                                    04-14-00224-CR


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

reasonable doubt. Prihoda v. State, 352 S.W.3d 796, 807 (Tex. App.—San Antonio 2011, pet.

ref’d) (citing Isassi v. State, 330 S.W.3d 633, 639 (Tex. Crim. App. 2010)).

       Here, the judgment recites that Wood pled “true” to the enhancement paragraph of the

indictment and that the enhancement was found “true.” The State argues that “[o]bviously

something happened off the record” to support the court’s finding that the enhancement was “true,”

and asserts that both sides as well as the court proceeded as if Wood had pled “true.” The State

contends that, because Wood did not object in the trial court and the record does not affirmatively

show the opposite, we must presume the regularity of the judgment and its recital that Wood pled

“true;” therefore, the State’s burden of proof was satisfied by the alleged plea of “true.” See

Wilson, 671 S.W.2d at 525-26; TEX. R. APP. P. 44.2(c)(4). However, a defendant’s plea of “true”

to an enhancement allegation must be affirmatively reflected by evidence in the record. Wilson,

671 S.W.2d at 526; Wise v. State, 394 S.W.3d 594, 598 (Tex. App.—Dallas 2012, no pet.). As

noted, the record does not affirmatively show that Wood entered any plea at all to the enhancement

allegation. Without a plea of “true” in the record, we proceed with our analysis by determining

whether the State met its burden of proof on the enhancement allegation. See Wise, 394 S.W.3d

at 600; see also Guyton v. State, No. 04-13-00179-CR, 2014 WL 2917213, at *1 (Tex. App.—San

Antonio June 25, 2014, no pet.) (mem. op., not designated for publication) (in absence of “true”

plea in the record, appellate court proceeds as if defendant pled “not true” to enhancement).

       Based on the record before us, we conclude the State wholly failed to establish the

September 23, 2002 prior conviction alleged in the enhancement paragraph of the indictment. The

State did not introduce a certified copy of the judgment for that offense as is customary, and did

not offer any other type of documentary or testimonial proof of the alleged September 23, 2002

conviction. While the State attempted to get Wood to admit to two other drug charges with
                                               -5-
                                                                                    04-14-00224-CR


different dates, he refused to admit to being convicted for those offenses. Finally, Wood’s vague

testimony that he had “one drug conviction” for which he went to prison “in the 2000’s” was

insufficient, without more, to prove up the enhancement allegation in the indictment. See Prihoda,

352 S.W.3d at 808-09 (listing different types of proof that have been held sufficient to prove a

prior conviction for enhancement purposes).

       The State not only failed to prove the conviction to be used for enhancement beyond a

reasonable doubt, it failed to present even prima facie evidence of the conviction. Therefore,

contrary to the State’s argument, no presumption of regularity attached to the judgment’s recitals

with respect to the enhancement conviction. See Fletcher v. State, 214 S.W.3d 5, 8 (Tex. Crim.

App. 2007) (presumption of regularity of a judgment with respect to a prior conviction does not

arise until after the State presents prima facie evidence of the conviction to be used for

enhancement). When the State fails to make a prima facie showing of an enhancement conviction,

as it did here, the defendant has no obligation to complain or object to any defect in the judgment

concerning the alleged prior conviction. Id. at 7. As in the similar case Wise, we do not apply a

presumption of regularity in the enhancement proceedings in a way that relieves the State of its

burden to prove the enhancement allegations. Wise, 394 S.W.3d at 599 (citing Fletcher, 214

S.W.3d at 9).

       Finally, the State asserts that any error in the enhancement proceedings is harmless because

the four-year sentence Wood received is within the punishment range for a third degree felony

with no enhancement. However, a failure of proof on an enhancement allegation is not subject to

a harmless error analysis. Wise, 394 S.W.3d at 600; Ex parte Miller, 330 S.W.3d 610, 624 (Tex.

Crim. App. 2009) (noting a sufficiency-of-evidence deficiency can never be considered harmless).




                                               -6-
                                                                             04-14-00224-CR


       Based on the foregoing reasons, we sustain Wood’s issue, reverse the portion of the

judgment assessing punishment and remand for a new punishment hearing. See Wise, 394 S.W.3d

at 600-01.

                                             Rebeca C. Martinez, Justice

PUBLISH




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