Otis Dwayne Kirven v. State ( 2015 )

IN THE
TENTH COURT OF APPEALS
No. 10-15-00359-CR
OTIS DWAYNE KIRVEN,
Appellant
v.
THE STATE OF TEXAS,
Appellee
From the 19th District Court
McLennan County, Texas
Trial Court No. 2012-1545-C1
MEMORANDUM OPINION
Appellant Otis Dwayne Kirven was charged in a four-count indictment for
aggravated assault, failure to stop and render aid, abandoning a child, and endangering
a child. The indictment also contained an enhancement allegation. Kirven pleaded guilty
to the offenses of aggravated assault and failure to stop and render aid and pleaded true
to the enhancement allegation. In exchange, the State abandoned the charges for
abandoning a child and endangering a child. Thereafter, a jury assessed Kirven’s
punishment at thirty-five years’ imprisonment for the aggravated-assault conviction and
twenty years’ imprisonment for the failure-to-stop-and-render-aid conviction, to be
served concurrently. This is the appeal of his failure-to-stop-and-render-aid conviction.
Void Sentence
In his first issue, Kirven contends that the twenty-year sentence imposed for the
failure-to-stop-and-render-aid judgment of conviction is void because the offense was
improperly enhanced with a prior conviction.
The offense of failure to stop and render aid is defined by sections 550.021 and
550.023 of the Transportation Code. Ramirez v. State, 90 S.W.3d 884, 885 (Tex. App.—San
Antonio 2002, pet. ref’d); see TEX. TRANSP. CODE ANN. § 550.021 (West Supp. 2014), §
550.023 (West 2011). The second clause of subsection 1.03(b) of the Penal Code states that
“… the punishment affixed to an offense defined outside [the Penal Code] shall be
applicable unless the punishment is classified in accordance with [the Penal Code].” TEX.
PENAL CODE ANN. § 1.03 (West 2011). Subsection 550.021(c) provides that the offense of
failure to stop and render aid:
(1) involving an accident resulting in:
(A) death of a person is a felony of the second degree; or
(B) serious bodily injury, as defined by Section 1.07, Penal Code, to a
person is a felony of the third degree; and
(2) involving an accident resulting in injury to which Subdivision (1) does
not apply is punishable by:
(A) imprisonment in the Texas Department of Criminal Justice for not
more than five years or confinement in the county jail for not more
than one year;
(B) a fine not to exceed $5,000; or
Kirven v. State Page 2
(C) both the fine and the imprisonment or confinement.
TEX. TRANSP. CODE ANN. § 550.021(c)(2). Kirven’s conviction for the offense of failure to
stop and render aid did not involve an accident resulting in death or serious bodily injury;
therefore, this case involves subsection 550.021(c)(2) of the Transportation Code. See id. §
550.021(c). Subsection 550.021(c)(2) of the Transportation Code does not specifically
assign a felony classification to the offense of failure to stop and render aid in accordance
with the classification system referred to in section 12.04 of the Penal Code. Ramirez, 90
S.W.3d at 885; see TEX. PENAL CODE ANN. § 12.04 (West 2011) (classifying felony offenses
as capital felonies, felonies of first degree, felonies of second degree, felonies of third
degree, and state-jail felonies); TEX. TRANSP. CODE ANN. § 550.021(c)(2). Thus, the
punishment affixed by subsection 550.021(c)(2) of the Transportation Code, i.e.,
imprisonment in the Texas Department of Criminal Justice for not more than five years
or confinement in the county jail for not more than one year, a fine not to exceed $5,000,
or both the fine and the imprisonment or confinement, is applicable to a bare conviction
for the offense of failure to stop and render aid when the offense does not involve an
accident resulting in serious bodily injury or death. See TEX. PENAL CODE ANN. § 1.03(b);
TEX. TRANSP. CODE ANN. § 550.021(c)(2); Childress v. State, 784 S.W.2d 361, 362 (Tex. Crim.
App. 1990). But Kirven pleaded true to the enhancement paragraph alleging a prior
felony conviction on March 9, 2006 for possession of a controlled substance; therefore,
Kirven’s conviction is not a bare conviction for the offense of failure to stop and render
aid that did not involve an accident resulting in serious bodily injury or death.
Kirven v. State Page 3
The first clause of subsection 1.03(b) of the Penal Code states, “The provisions of
Titles 1, 2, and 3 [of the Penal Code] apply to offenses defined by other laws, unless the
statute defining the offense provides otherwise….” See TEX. PENAL CODE ANN. § 1.03(b).
Subchapter D of chapter 12 of the Penal Code, which includes sections 12.41 and 12.42, is
contained in Title 3 of the Penal Code. See id. §§ 12.41, 12.43-12.50 (West 2011), §§ 12.42-
12.425 (West Supp. 2015). According to subsection 1.03(b) of the Penal Code, sections
12.41 and 12.42 of the Penal Code are therefore applicable to the offense of failure to stop
and render aid defined by the Transportation Code. See id. § 1.03(b); Childress, 784 S.W.2d
at 365; Ramirez, 90 S.W.3d at 885-86; see also Murphy v. State, Nos. 01-08-00768-CR, 01-08-
00769-CR, 2010 WL 1620803, at *11 (Tex. App.—Houston [1st Dist.] Apr. 22, 2010, pet.
ref’d) (mem. op., not designated for publication).
Section 12.41, entitled “Classification of Offenses Outside This 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).
Subsection 550.021(c)(2) of the Transportation Code affixes imprisonment in the Texas
Department of Criminal Justice as a possible punishment for the offense of failure to stop
and render aid when the offense does not involve an accident resulting in serious bodily
injury or death; therefore, the offense is a third-degree felony for purposes of subchapter
D of chapter 12 of the Penal Code. See id.; TEX. TRANSP. CODE ANN. § 550.021(c)(2);
Childress, 784 S.W.2d at 365-66; Ramirez, 90 S.W.3d at 886; see also Murphy, 2010 WL
Kirven v. State Page 4
1620803, at *11. Subsection 12.42(a) of the Penal Code then states:
Except as provided by Subsection (c)(2), if it is shown on the trial of a felony
of the third degree that the defendant has previously been finally convicted
of a felony other than a state jail felony punishable under Section 12.35(a),
on conviction the defendant shall be punished for a felony of the second
degree.
TEX. PENAL CODE ANN. § 12.42(a). Kirven’s failure-to-stop-and-render-aid conviction,
which was a third-degree felony for purposes of subchapter D of chapter 12 of the Penal
Code, was therefore properly punished as a second-degree felony because he had
previously been finally convicted on March 9, 2006 of felony possession of a controlled
substance. See id.
Kirven argues, however, that while the foregoing used to be the proper analysis,
the 2007 amendment to subsection 550.021(c) of the Transportation Code changed the
analysis such that the punishment affixed in subsection 550.021(c)(2) of the
Transportation Code is no longer subject to enhancement under section 12.42 of the Penal
Code. Kirven emphasizes that the first clause of subsection 1.03(b) of the Penal Code
states, “The provisions of Titles 1, 2, and 3 [of the Penal Code] apply to offenses defined
by other laws, unless the statute defining the offense provides otherwise….” See id. § 1.03(b)
(emphasis added). And Kirven argues that the post-2007-amendment version of
subsection 550.021(c) of the Transportation Code “provides otherwise.”
Before it was amended in 2007, subsection 550.021(c) of the Transportation Code
stated that the offense of failure to stop and render aid was punishable by: “(1)
imprisonment in the institutional division of the Texas Department of Criminal Justice
for not more than five years or confinement in the county jail for not more than one year;
Kirven v. State Page 5
(2) a fine not to exceed $5,000; or (3) both the fine and the imprisonment or confinement.”
Act of May 1, 1995, 74th Leg., R.S., ch. 165, § 1, 1995 Tex. Gen. Laws 1025, 1692 (amended
2007 & 2013) (current version at TEX. TRANSP. CODE ANN. § 550.021(c)). Effective
September 1, 2007, subsection 550.021(c) was amended to state that the offense of failure
to stop and render aid:
(1) involving an accident resulting in death of or serious bodily injury, as
defined by Section 1.07, Penal Code, to a person is a felony of the third
degree; and
(2) involving an accident resulting in injury to which Subdivision (1) does not
apply is punishable by:
(A) imprisonment in the Texas Department of Criminal Justice for not
more than five years or confinement in the county jail for not more
than one year;
(B) a fine not to exceed $5,000; or
(C) both the fine and the imprisonment or confinement.
Act of May 3, 2007, 80th Leg., R.S., ch. 97, § 2, 2007 Tex. Gen. Laws 105, 105 (amended
2013) (current version at TEX. TRANSP. CODE ANN. § 550.021(c)). Subsection 550.021(c)’s
current version then became effective on September 1, 2013. See TEX. TRANSP. CODE ANN.
§ 550.021(c).
Kirven argues that in the 2007 amendment to subsection 550.021(c), the Legislature
specifically provided in the subsection the conduct that would be required for the offense
of failure to stop and render aid to be classified as a third-degree felony, and Kirven
argues that the conduct for which he was convicted did not fit within those parameters.
Kirven contends that the conduct for which he was convicted was given a specific
Kirven v. State Page 6
punishment range without a Penal Code classification and that the provisions of Titles 1,
2, and 3 of the Penal Code cannot therefore apply to enhance the punishment of the
offense using section 12.42 of the Penal Code. We disagree. As noted by Kirven, “it is
presumed that the legislature is aware of case law affecting or relating to the statute.”
Miller v. State, 33 S.W.3d 257, 260 (Tex. Crim. App. 2000). It is thus presumed that the
Legislature was aware of Childress and Ramirez, which interpreted the statutes to allow
the offense of failure to stop and render aid to be enhanced under section 12.42 of the
Penal Code, when it made the 2007 amendments to subsection 550.021(c) of the
Transportation Code. We therefore believe that the Legislature would have been clearer
and simply stated so if it intended subsection 550.021(c) to provide that the provisions of
Titles 1, 2, and 3 of the Penal Code do not apply to the offense of failure to stop and render
aid punishable under subsection 550.021(c)(2) or that the punishment under subsection
550.021(c)(2) is not to be enhanced by a prior conviction.
We therefore conclude, as stated above, that Kirven’s failure-to-stop-and-render-
aid conviction was properly punished as a second-degree felony. Section 12.33(a) of the
Penal Code states, “An individual adjudged guilty of a felony of the second degree shall
be punished by imprisonment in the Texas Department of Criminal Justice for any term
of not more than 20 years or less than 2 years.” TEX. PENAL CODE ANN. § 12.33(a) (West
2011). The jury assessed Kirven’s punishment at twenty years’ imprisonment. The
sentence is thus not void. We overrule Kirven’s first issue.
Jury Charge
In his second issue, Kirven contends that the jury charge incorrectly stated the
Kirven v. State Page 7
range of punishment for the offense of failure to stop and render aid.
A claim of jury-charge error is reviewed using the procedure set out in Almanza.
Barrios v. State, 283 S.W.3d 348, 350 (Tex. Crim. App. 2009); Almanza v. State, 686 S.W.2d
157, 171 (Tex. Crim. App. 1985). The first step is to determine whether there is error in
the charge. Ngo v. State, 175 S.W.3d 738, 743 (Tex. Crim. App. 2005). Only if we find
error, do we then analyze that error for harm. Id.
The jury charge stated that the punishment range for the offense of failure to stop
and render aid, before enhancement, was “by confinement in the Texas Department of
Criminal Justice, Institutional Division for any term not less than two (2) years nor more
than ten (10) years, and in addition thereto the Defendant may be assessed a fine in any
amount not to exceed ten thousand dollars ($10,000.00).” The charge then stated that the
punishment range for the offense of failure to stop and render aid, enhanced by a prior
felony conviction, was “by confinement in the Texas Department of Criminal Justice,
Institutional Division, for any term of years not less than two (2) years nor more than
twenty (20) years, and in addition thereto, the Defendant may be assessed a fine in any
amount not to exceed ten thousand dollars ($10,000.00).” After noting that Kirven
pleaded “true” to the enhancement allegation, the charge then instructed the jury in
pertinent part:
Now, therefore, you shall find from the evidence beyond a
reasonable doubt that prior to the commission of the offenses of Count I,
Aggravated Assault and Count II, Vehicle Involved in Accident – Failure to
Stop and Render Aid for which you have found the Defendant guilty, he
was duly and legally convicted of a felony as described above, … and you
shall assess the punishment of the Defendant at confinement in the Texas
Department of Criminal Justice, Institutional Division for any term of years
Kirven v. State Page 8
not less than two (2) years nor more than twenty (20), and in addition
thereto the Defendant may be assessed a fine in any amount not to exceed
ten thousand dollars ($10,000.00) as to Count II of the Indictment ….”
The jury assessed Kirven’s punishment on the offense of failure to stop and render aid at
twenty years’ confinement and no fine.
Kirven complains that the charge allowed the jury to assess a punishment not
authorized by law. Based on our analysis of Kirven’s first issue, however, we disagree.
As explained above, Kirven’s failure-to-stop-and-render-aid conviction was properly
punished as a second-degree felony. Section 12.33(a) of the Penal Code states, “An
individual adjudged guilty of a felony of the second degree shall be punished by
imprisonment in the Texas Department of Criminal Justice for any term of not more than
20 years or less than 2 years.” TEX. PENAL CODE ANN. § 12.33(a). The jury assessed
Kirven’s punishment at twenty years’ imprisonment. Kirven’s sentence is therefore
authorized by law.
Kirven also complains that the charge improperly instructed the jury that the
punishment range for the offense of failure to stop and render aid, before enhancement,
was that for a third-degree felony. The State concedes the error, and we agree. The
charge should have instructed the jury that the punishment range for the offense of
failure to stop and render aid, before enhancement, was imprisonment in the Texas
Department of Criminal Justice for not more than five years or confinement in the county
jail for not more than one year, a fine not to exceed $5,000, or both the fine and the
imprisonment or confinement. See TEX. TRANSP. CODE ANN. § 550.021(c)(2).
But because Kirven did not object to the charge on this basis, error will not result
Kirven v. State Page 9
in reversal of his conviction in the absence of “egregious harm.” Almanza, 686 S.W.2d at
171. Here, because Kirven pleaded “true” to the enhancement allegation and his failure-
to-stop-and-render-aid conviction was therefore properly punished as a second-degree
felony, we conclude that the error did not result in egregious harm to Kirven. We
overrule Kirven’s second issue.
Having overruled both of Kirven’s issues, we affirm the trial court’s judgment
convicting him of failure to stop and render aid.
REX D. DAVIS
Justice
Before Chief Justice Gray,
Justice Davis, and
Justice Scoggins
Affirmed
Opinion delivered and filed December 17, 2015
Do not publish
[CRPM]
Kirven v. State Page 10