Antoine Jerome Newsome v. State ( 2018 )

In The
Court of Appeals
Ninth District of Texas at Beaumont
____________________
NO. 09-17-00122-CR
____________________
ANTOINE JEROME NEWSOME, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 435th District Court
Montgomery County, Texas
Trial Cause No. 17-02-02094-CR
MEMORANDUM OPINION
Antoine Jerome Newsome appeals his conviction for evading arrest or
detention with a vehicle. Newsome argues that the trial court erred in finding that
Newsome’s prior convictions in Florida constituted third degree or higher felonies
for enhancement purposes. We affirm.
Background
The State charged Newsom with evading arrest or detention with a vehicle, a
state jail felony. See Tex. Penal Code Ann. § 38.04(a), (b)(1)(B) (West 2011). The
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indictment alleged three prior felony convictions as enhancements. See Tex. Penal
Code Ann. § 12.42(d) (West Supp. 2017). On February 26, 2017, Newsome filed a
motion to quash the indictment’s enhancement paragraphs and argued that the three
enhancement paragraphs “are invalid because the convictions being used for
enhancement are misdemeanor convictions under Florida law and cannot be used to
enhance in this matter.”
Newsome pleaded guilty to the offense of evading arrest or detention with a
vehicle and waived a jury trial as to punishment. He pleaded not true as to the deadly
weapon finding and to the enhancement allegations in the indictment. On February
27, 2017, and prior to hearing any testimony at the sentencing hearing, the trial court
denied the motion to quash.1 The trial court found Newsome guilty of the offense of
evading arrest or detention with a vehicle, found the deadly weapon charge and
enhancement paragraphs to be true, and assessed punishment, enhanced by
Newsome’s three prior convictions in Florida, at sixty-five years in prison.
Newsome appealed.
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On March 29, 2017, prior to the conclusion of the sentencing hearing,
Newsome filed a “Supplemental Motion to Quash Indictment/Enhancement
Paragraphs” and argued that the application of section 12.41 of the Texas Penal Code
to the enhancement paragraphs alleged in his indictment was “unconstitutional to
this Defendant as it violates the Equal Protection Clause[.]”Because the original
motion to quash had already been denied, the trial court treated this pleading as a
motion to reconsider, which it also denied.
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Analysis
On appeal, Newsome argues the trial court erred in finding that Newsome’s
Florida convictions constituted third degree or higher felonies under section 12.41
of the Texas Penal Code. Newsome asserts that by making this finding the trial court
wrongfully sentenced Newsome as an habitual offender, that his due process and
equal protection rights were violated, and the judgment should be reversed for a new
trial on sentencing.
According to the appellate record, it is clear from the face of the Florida
documents that Appellant was convicted of: (1) “Robbery/Strongarm[,]” (2) “Grand
Theft 3rd Degree/Vehicle[,]” and (3) “Cocaine/Sell/Man/Deliver/Possess
w/Intent[.]” A Florida court placed Newsome on probation for the robbery and theft
offenses, but later revoked probation and ordered Newsome to serve concurrent jail
sentences. A Florida court subsequently sentenced Newsome to jail time for the
cocaine-related offense.
Newsome contends that the sentences imposed upon him by the Florida courts
“were the equivalent of State Jail Felonies in Texas because the punishment scheme
under those sentences was similar to the punishment scheme of State Jail Felonies
in Texas[,]” and that in each of the Florida cases, the sentences imposed determined
that he was convicted of a misdemeanor in each case and those convictions cannot
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be used to enhance him to habitual-offender status. He argues that because he
received time in a county jail for the Florida offenses, those convictions cannot be
classified for enhancement purposes as third degree felonies. As to his constitutional
challenge, Newsome argues that section 12.41 is unconstitutional as applied to him
because there was no expectation that the penalties he agreed to accept on the Florida
cases would ever be used in any state as third-degree felonies for enhancement
purposes.
Section 12.41 of the Texas Penal Code provides, in pertinent part:
For purposes of this subchapter, any conviction not obtained from a
prosecution under this code shall be classified as follows:
(1) “felony of the third degree” if imprisonment in the Texas
Department of Criminal Justice or another penitentiary is affixed to
the offense as a possible punishment[.]
Tex. Penal Code Ann. § 12.41(1) (West 2011). Section 12.41(1) applies to out-of-
state convictions regardless of whether the convicting jurisdiction calls the offense
a felony, or whether the appellant received actual time in a penitentiary as a
punishment. See generally State v. Richardson, 439 S.W.3d 403 (Tex. App.—Fort
Worth 2014, pet. ref’d). Whether an out-of-state offense constitutes a felony for
purposes of enhancement is a question of law that we review de novo. See id.; Lucio
v. State, 128 S.W.3d 262, 263-64 (Tex. App.—Houston [1st Dist.] 2003, no pet.).
This Court has previously applied section 12.41 to out-of-state convictions for
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enhancement purposes. See Lindsey v. State, Nos. 09-16-00327-CR & 09-16-00328-
CR, 2017 Tex. App. LEXIS 8852, at **4-5 (Tex. App.—Beaumont Sept. 20, 2017,
no pet.) (mem. op., not designated for publication); Scoggins v. State, No. 09-11-
00598-CR, 2013 Tex. App. LEXIS 7749, at **13-14 (Tex. App.—Beaumont June
26, 2013, pet. ref’d) (mem. op., not designated for publication); Golden v. State, 874
S.W.2d 366, 368 (Tex. App.—Beaumont 1994, pet. ref’d).
Section 12.41 requires this Court to consider sister state and federal
convictions, where punishable by confinement in the Texas Department of Criminal
Justice or another penitentiary, to be third degree felonies for purposes of enhancing
punishment or punishing an accused as a repeat or habitual offender. Davis v. State,
645 S.W.2d 288, 292 (Tex. Crim. App. 1983); Ex parte Blume, 618 S.W.2d 373, 376
(Tex. Crim. App. 1981). In the instant case, the paperwork for the judgments for the
three Florida convictions cites to a Florida statute for each of the three offenses. The
judgment for the robbery offense recites that it is a “2/F” degree offense and reflects
that Newsome violated section 812.13(2)(c), which is a second-degree felony
according to the Florida statute in question. See Fla. Stat. Ann. § 812.13(2)(c). The
judgment for the theft offense recites that it is a “3/F” degree offense and reflects
that Newsome violated section 812.014(2)(c), which is a third-degree felony
according to the Florida statute in question. See id. § 812.014(2)(c). The judgment
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for the cocaine-related offense recites that it was a “2/F” degree offense and that
Newsome violated section 893.13(1)(a), which is a second-degree felony. See id. §
893.13(1)(a).
In Florida, a second-degree felony carries a term of imprisonment not
exceeding fifteen years. See id. § 775.082(3)(d). A third-degree felony carries a term
of imprisonment not exceeding five years. See id. § 775.082(3)(e). According to
section 775.08(1) of the Florida statutes, “felony” means any criminal offense that
is punishable by death or imprisonment in a “state penitentiary[,]” and that a person
“shall be imprisoned in the state penitentiary for each sentence which exceeds . . . 1
year.” See id. § 775.08(1). We conclude that the trial court properly determined that
the out-of-state convictions were felonies for enhancement purposes. See Trotti v.
State, 698 S.W.2d 245, 246 (Tex. App.—Austin 1985, pet. ref’d).
Newsome argues that his due process rights under the United States and Texas
Constitutions were violated because he was only sentenced to county jail for the
Florida convictions and “there was no expectation that the penalties he agreed to
accept on the Florida cases would ever be used in any state as third-degree felonies
for enhancement purposes.” Similar arguments have been rejected by our sister
courts. See Andika v. State, No. 10-04-00278-CR, 2005 Tex. App. LEXIS 4862, at
*14 (Tex. App.—Waco June 22, 2005, no pet.) (mem. op., not designated for
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publication) (rejecting appellant’s due process argument that the federal conviction
alleged for enhancement purposes carried a punishment range of a fine only or up to
twenty years in prison was so broad and vague that it made it impossible to classify
it as a felony or misdemeanor for enhancement purposes, and concluding that for
purposes of enhancement in Texas, the appellant’s federal conviction is a felony
based on the possible penitentiary punishment); Pope v. State, No. 05-02-01745-CR,
2004 Tex. App. LEXIS 4783, at **9-12 (Tex. App.—Dallas May 27, 2004, pet.
ref’d) (op. on reh’g, not designated for publication) (rejecting appellant’s argument
that section 12.41’s classification based on possible, rather than actual, punishment
constitutes a denial of due process, and concluding that to adopt appellant’s
interpretation of the statute would “render the language ‘as a possible punishment’
meaningless surplusage[]”). We agree with the rationale of our sister courts and
reject the argument made by Newsome. We conclude that the application of section
12.41 did not violate Newsome’s due process rights.
Newsome argues that he should not have been sentenced as an habitual felony
offender because it violates the equal protection clauses of the United States and
Texas Constitutions. He contends that “a person punished for similar misdemeanor
sentences in Texas would not be subject to enhancement as a habitual offender.”
Newsome contends that “[u]nder Section 12.41, the state is allowed to take what are
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misdemeanor offenses in Florida and make them third-degree felony cases in
Texas.” We disagree. To prevail on an equal protection claim, the complaining party
must establish two elements: (1) the party was treated differently than other similarly
situated parties; and (2) the party was treated differently without a rational basis by
the government. Smith v. State, 898 S.W.2d 838, 847 (Tex. Crim. App. 1995).
First, as we have previously explained herein, the record indicates Newsome
was convicted in Florida of three felony offenses. Second, Newsome failed to
establish in the trial court below the specific factual nature of Newsome’s Florida
offenses and what degree of felony the state of Texas could have charged him for
such offenses, or how he has been treated differently from other similarly situated
parties. Accordingly, Newsome’s equal protection claim fails. See Smith, 898
S.W.2d at 847; Tucker v. State, 136 S.W.3d 699, 701 (Tex. App.—Texarkana 2004,
no pet.) (overruling an appellant’s equal protection argument because, in part, the
record did not indicate whether the appellant’s out-of-state convictions involved
burglary of a building or a habitation). We overrule Newsome’s appellate issue. We
affirm the trial court’s judgment.
AFFIRMED.
_________________________
LEANNE JOHNSON
Justice
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Submitted on January 29, 2018
Opinion Delivered February 28, 2018
Do Not Publish
Before McKeithen, C.J., Horton and Johnson, JJ.
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