Howell, Patrick Eugene ( 2005 )

IN THE COURT OF CRIMINAL APPEALS OF TEXAS

---

No. PD-0832-04

---

PATRICK EUGENE HOWELL, Appellant

v.

THE STATE OF TEXAS

---

ON APPELLANT'S PETITION FOR DISCRETIONARY REVIEW FROM THE SIXTH COURT OF APPEALS GREGG COUNTY

---

Johnson, J., delivered the opinion for a unanimous Court. Cochran, J., filed a concurring opinion.

O P I N I O N  

Appellant was charged by indictment with driving while intoxicated (DWI), including allegations of having committed and been convicted of two prior DWI offenses. A jury convicted appellant and sentenced him to 25 years' confinement in the institutional division of the Texas Department of Criminal Justice. On appeal, the court of appeals affirmed the judgment and sentence of the trial court. Howell v. State, No. 06-03-00031-CR (Tex. App. - Texarkana, delivered April 28, 2004)(not designated for publication). Appellant petitioned for discretionary review.

The record reflects that the state did not include in its indictment any allegations of prior non-DWI convictions. The state did file, two weeks before the trial began, notice of its intent to seek enhancement of the punishment range and specified two prior convictions by which the state sought to enhance the punishment range to that of a habitual felony offender.

I

And it is further presented in and to said Court, that prior to the commission of the offense in this cause (hereinafter called the "primary offense"), on the 20^th day of March, 1986, in cause number 9522, in the 115^th Judicial District Court in and for Upshur County, Texas, the defendant was convicted of the felony offense of Forgery by Passing;

II

And it is further presented in and to said Court, that prior to the commission of the offense in this cause (hereinafter called the "primary offense"), on the 10^th day of November, 1989, in cause number F89-72406-HL2, in the Criminal District Court #5 in and for Dallas County, Texas, the defendant was convicted of the felony offense of Unauthorized Use of a Motor Vehicle;

III

That should the jury find from the evidence and say so by their verdict that the Defendant is the same person previously convicted of the offenses set forth in paragraph I through II above, the range of punishment for the offense in this cause shall be punishment by imprisonment in the institutional division of the Texas Department of Criminal Justice for life, or for any term of not more than ninety-nine (99) years or less than twenty-five (25) years.

The state concedes that the notice did not contain a specific allegation that the second prior conviction occurred after the first prior conviction became final, as is required by Tex. Penal Code § 12.42(d). At trial, appellant plead "true" to the allegations in the notice.

On appeal, appellant asserted that the state's evidence "is legally insufficient to demonstrate that [he] was eligible for punishment as a 'habitual offender' pursuant to Section 12.42(d), Texas Penal Code." He argued that, because the enhancement allegations failed to allege the sequential-conviction requirements contained in the statute, his plea of true was only as to the existence of the prior convictions, not that they were in the required sequence. Because the state failed to allege what it had to prove, the jury was never asked to determine whether the state had proved that the sequence of the prior convictions satisfied the requirements of section 12.42; the jury was instructed only to find the notice of enhancement to be true, in spite of the state's failure to allege the required sequence.

In addressing appellant's sole claim, the court of appeals stated that appellant's "complaint on appeal is that the State's notice does not contain those substantive allegations regarding sequential finality and that the State's notice is, therefore, inadequate to permit the enhanced punishment assessed by the jury." Howell, supra, slip op. at 3. The court of appeals noted that the failure to object to an indictment defect prior to trial waives any objection on appeal and held that, because appellant failed to object to either the form or substance of the state's notice before the beginning of trial, he failed to preserve the issue presented on appeal.

If an indictment containing no culpable mental state falls within the requirements of Article 1.14 of the Texas Code of Criminal Procedure, and if the State may plead enhancement allegations in a filing ancillary to the indictment, then it follows that Howell's objection(s) to a defect in the State's notice or other ancillary pleading(s) should have been raised before trial. Howell failed to do so and thereby failed to preserve the issue now presented on appeal.

Id. at 3-4.

The court of appeals considered the claim only as an issue of defective indictment or notice; it did not address appellant's point of error that the evidence was legally insufficient to prove that he was susceptible to punishment as a habitual offender, although appellant clearly presented that claim.

We granted appellant's sole ground for review, which asserts that the court of appeals erred in holding that he had "waived his challenge to the sufficiency of evidence to demonstrate the sequence of two prior convictions used to enhance his third degree felony to a Habitual Offender level under § 12.42(d)" of the Penal Code.

When prior convictions are alleged for habitual-offender punishment purposes, "[t]his Court has consistently held that, where there is no evidence to show that the offenses were committed and became final in the proper sequence, the defendant's sentence may not be enhanced under the State's habitual offender statutes." Tomlin v. State, 722 S.W.2d 702, 705 (Tex. Crim. App. 1987). We have also said, "A claim regarding sufficiency of the evidence need not be preserved for review at the trial level and is not waived by the failure to do so." Rankin v. State, 46 S.W.3d 899, 901 (Tex. Crim. App. 2001).

The court of appeals erred in not addressing appellant's claim that the state's evidence was insufficient to support punishment as an habitual offender, in that the state did not prove that the two prior convictions were sequential in the manner required by statute. We sustain appellant's ground for review. The judgment of the court of appeals is reversed, and the cause remanded to that court to address appellant's sufficiency claim.

Johnson, J.

En banc

Delivered: March 9, 2005

Do not publish