Thurman, Kentrell Deshay v. State ( 2003 )

Affirmed and Memorandum Opinion filed February 27, 2003

Affirmed and Memorandum Opinion filed February 27, 2003.

In The

Fourteenth Court of Appeals

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NO. 14-02-00319-CR

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KENTRELL DESHAY THURMAN, Appellant

V.

THE STATE OF TEXAS, Appellee

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On Appeal from the 177th District Court

Harris County, Texas

Trial Court Cause No. 892,736

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M E M O R A N D U M   O P I N I O N

            Appellant Kentrell Deshay Thurman was convicted by a jury of aggravated robbery and sentenced to forty-two years’ confinement in the Texas Department of Criminal Justice, Institutional Division, enhanced with one prior felony conviction.  On appeal, he claims that his sentence as a repeat offender was improperly enhanced with the prior conviction, because it was a state jail felony conviction.  We affirm.

Facts

            On January 24, 2001, complainant Diana Schmidt drove to her workplace and parked her car in the parking area at about 8:20 a.m. As she waited in her car for her workplace to open for business, appellant approached her and robbed her at gunpoint.  Appellant ran away, but police later determined his identity after someone attempted to use Schmidt’s credit card and some of Schmidt’s property was found in a pawn shop.  Schmidt and others who witnessed the robbery in the parking lot identified appellant at trial as the robber.   

            Appellant was found guilty of aggravated robbery, a first-degree felony. See Tex. Pen. Code Ann. § 29.03.  The enhancement paragraph of the indictment read as follows:

Before the commission of the offense alleged above on March 16, 1999, in Petition No. 1999-015891, in the 313th District Court of Harris County, Texas, the Defendant was adjudicated for the felony of Possession of a Controlled Substance.

Appellant pleaded “not true” to the enhancement paragraph.

            The trial court instructed the jury that if it found the allegations of the enhancement paragraph true beyond a reasonable doubt, to sentence appellant to a period of confinement consistent with the range of punishment found in Penal Code section 12.42(c)(1), which provides as follows:

if it is shown on the trial of a first-degree felony that the defendant has been once before convicted of a felony, on conviction the punishment range is imprisonment in the institutional division of the Texas Department of Criminal Justice for life, or for any term of not more than 99 years or less than 15 years.

Tex. Pen. Code Ann. § 12.42(c)(1).  The jury found the enhancement paragraph true, and assessed punishment at 42 years’ imprisonment.

Issues on Appeal

            On appeal, appellant raises three issues.  In the first two, he contends the evidence is legally and factually insufficient to support the enhancement allegation.  In the third, he contends that the trial judge committed error in charging the jury on the punishment range as enhanced.  Because we overrule appellant’s first two issues, we do not reach the third.

The Prior Conviction

            Appellant argues that the evidence is legally and factually insufficient to find the enhancement allegation “true” and to sentence appellant as a repeat offender under Texas Penal Code section 12.42(c)(1) because the prior conviction was a state jail felony conviction.  Under Penal Code section 12.42(e), “[a] previous conviction for a state jail felony punished under Section 12.35(a) may not be used for enhancement purposes under Subsection (b), (c), or (d).”  Tex. Pen. Code Ann. § 12.42(e); see also Campbell v. State, 49 S.W.3d 874, 877 (Tex. Crim. App. 2001) (holding that unaggravated state jail felony could not be used to enhance punishment for first-degree felony).

            At the punishment stage of the proceeding, the State supported its enhancement allegation with State’s Exhibit 14, a judgment reciting that, on March 16, 1999, appellant was adjudicated^[1] for the offense of possession of a controlled substance, namely cocaine.  Below the adjudication a box indicating “Felony 3rd” was checked.  The judgment was supported by appellant’s stipulation of evidence as follows:

On the 20th day of FEBRUARY, 1999, in Harris County and State of Texas, I did then and there unlawfully, intentionally and knowingly possess a controlled substance, namely, COCAINE, weighing less than 1 gram by aggregate weight, including any adulterants and dilutants. 

Additionally, a police officer testified that appellant was charged with the offense because a small plastic bag containing cocaine residue was found in a pocket of his clothing after he was arrested for another offense.

            Appellant asserts that he was adjudicated for a state jail felony, not a third degree felony as recited in the judgment, because possession of less than one gram of cocaine is punishable as a state jail felony.  See Tex. Health & Safety Code Ann. § 481.115 (b) (“An offense under Subsection (a) is a state jail felony if the amount of the controlled substance possessed is, by aggregate weight, including adulterants or dilutants, less than one gram.”).  Specifically, appellant contends that his stipulation of evidence in the judgment that he possessed less than one gram of cocaine, and the police officer’s testimony that the cocaine involved consisted of residue in a plastic bag, demonstrate that appellant’s conviction was for possession of less than one gram of cocaine — a state jail felony — and thus the box checked “Felony 3rd” was a clerical error.  Therefore, appellant argues that as a matter of law, the use of the prior offense for enhancement purposes is barred by section 12.42(e) and Campbell. Even if the box checked “Felony 3rd” is considered some evidence, appellant asserts that the evidence that the prior conviction was a felony other than a state jail felony is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. We disagree.

            Once the State properly introduces a judgment and sentence and identifies appellant with them, we presume regularity in the judgment.  Johnson v. State, 725 S.W.2d 245, 247 (Tex. Crim. App. 1987) (en banc).  The burden then shifts to the defendant, who must make an affirmative showing of any defect in the judgment.  Id.  A prior conviction alleged for enhancement may be collaterally attacked only if it is void or tainted by constitutional defect.  Galloway v. State, 578 S.W.2d 142, 143 (Tex. Crim. App. [Panel Op.] 1979).  A judgment containing an irregularity which may be reformed on direct appeal or by nunc pro tunc entry is not void, and is not subject to collateral attack.  Id; Bowles v. State, 550 S.W.2d 84, 87 (Tex. Crim. App. 1977). 

            Here, appellant contends that the evidence shows he was actually adjudicated for a state jail felony, and the recitation in the prior judgment that he was adjudicated for a third-degree felony was merely a clerical error. However, this is the type of error that could have been remedied by entry of a corrected judgment or reformation on appeal; therefore, the prior judgment is not subject to collateral attack on this basis.  Because the prior judgment recited that appellant was adjudicated for the felony offense of possession of a controlled substance, and that he was adjudicated for a third degree felony, we find that the evidence was sufficient to support the jury’s verdict at the punishment stage.  We overrule appellant’s first two issues, and do not reach the third.

            The trial court’s judgment is affirmed.

                                                                        /s/        Charles W. Seymore

                                                                                    Justice

Judgment rendered and Memorandum Opinion filed February 27, 2003.

Panel consists of Chief Justice Brister and Justices Edelman and Seymore.

Do Not Publish — Tex. R. App. P. 47.2(b).

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            ^[1]  Appellant was a juvenile at the time of the commission of the offense.  For purposes of subsections (a), (b), (c), and (e) of Penal Code section 12.42, an adjudication by a juvenile court that a child engaged in delinquent conduct constituting a felony offense for which the child is committed to the Texas Youth Commission is, in certain circumstances, considered a final felony conviction.  See Tex. Pen. Code Ann. § 12.42(f).