Milton Ray Crawford v. State ( 2015 )

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]
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