Russell Don Sneed v. State

IN THE
TENTH COURT OF APPEALS
No. 10-11-00231-CR
RUSSELL DON SNEED,
Appellant
v.
THE STATE OF TEXAS,
Appellee
From the 19th District Court
McLennan County, Texas
Trial Court No. 2010-1505-C1
MEMORANDUM OPINION
Russell Don Sneed was convicted of the offense of Driving While Intoxicated and
sentenced to life in prison as a habitual offender based on pleas of true to two prior
convictions. Sneed complains that the evidence was legally insufficient to establish that
one of the prior convictions was final for purposes of enhancement and that the trial
court erred by overruling his objection to State’s closing argument during the
sentencing phase of trial relating to parole. Because we find that the trial court erred by
overruling Sneed’s objections regarding the State’s closing argument and that the error
was harmful, we reverse the judgment of the trial court and remand to that court for a
new trial on punishment.
Enhancements
Sneed complains that the evidence was legally insufficient to establish that one of
the convictions used for purposes of enhancement was final because the State offered
into evidence a judgment from that conviction that affirmatively showed that a notice of
appeal had been filed. As a general rule, the State must prove the finality of a
conviction before the conviction can be used for enhancement purposes. See Fletcher v.
State, 214 S.W.3d 5, 8 (Tex. Crim. App. 2007); Harvey v. State, 611 S.W.2d 108, 111 (Tex.
Crim. App. 1981). However, if a defendant pleads “true” to the enhancement
paragraph, generally the State’s burden of proof is satisfied, and the defendant cannot
complain on appeal that the evidence is insufficient to support the enhancement. See
Harvey, 611 S.W.2d at 111; Lugo v. State, 299 S.W.3d 445, 455-56 (Tex. App.—Fort Worth
2009, pet. ref’d); Magic v. State, 217 S.W.3d 66, 70 (Tex. App.—Houston [1st Dist.] 2006,
no pet.).
Sneed contends, however, that this case falls within an exception to that general
rule that occurs when the record affirmatively reflects that the enhancement is
improper. See Ex parte Rich, 194 S.W.3d 508, 513 (Tex. Crim. App. 2006). Sneed argues
that because the judgment in the 1995 case indicates that he filed a notice of appeal, the
record affirmatively reflects that the conviction was not final. Certainly, a conviction
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that has been appealed is not considered final until it is affirmed by the appellate court
and the appellate court’s mandate becomes final. See Fletcher, 214 S.W.3d at 6 (quoting
Jones v. State, 711 S.W.2d 634, 636 (Tex. Crim. App. 1986)).
However, we disagree that the 1995 judgment in this case provides no evidence
of the finality of the judgment. A final conviction may be shown by a mandate or by
any other means of proof showing disposition of the appeal. See Johnson v. State, 784
S.W.2d 413, 414 (Tex. Crim. App. 1990). The judgment entered into evidence indicates
that a notice of appeal was filed on December 7, 1995. Below that notation, the
judgment indicates that the mandate was received on April 14, 1998 and “After
Mandate Received, Sentence to Begin Date is: 12/07/1995.” This is sufficient to meet the
State’s prima facie burden regarding finality. We overrule issue one.
Improper Argument
The jury is permitted to consider the existence of parole and the fact that a
defendant’s imposed sentence may be shortened by the operation of that system. See
TEX. CODE CRIM. PROC. ANN. art. 37.07 § 4(c) (West 2006). However, the jury is
prohibited from considering how parole law and good time would be applied to the
particular defendant before them. Hawkins v. State, 135 S.W.3d 72, 84 (Tex. Crim. App.
2004).
Sneed complains in his second issue that the trial court erred in overruling his
objection to improper comments on parole law made by the State in its opening
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argument during the punishment phase of his trial. Sneed complains of the following
segment of the State’s argument:
The State: < We can’t predict how exactly it’s going to be applied in this
case, but we do know that he will be eligible for parole after he serves one-
fourth, or 15, whichever is less. We do know that. Like I said, we know
how it was applied to him last time. Last time he got a 40 year sentence.
He got out after he did one-fifth. He—not only did he get it at the one-
fourth, he got good time and got less than one-fourth.
Sneed: Your Honor, I’m going to object to him arguing that the
jurors should apply the parole law to this specific defendant.
Trial Court: Overruled.
The State: So we know how it was applied to him last time. Last time he
only served a fifth of a 40 year sentence. He got eight. So we already
know 40 doesn’t mean 40. 60 doesn’t mean 60, probably. I mean, they
could keep him the whole time, but you have to think about, this is a DWI,
it’s a non-violent crime, prisons are crowded. I mean, who knows what’s
going to happen? We don’t know. We know he’s eligible after one-
fourth. I wrote an example up there. Just say, for example, you-all decide
to give him 60. Okay. One-fourth of 60 is 15 years. That’s if he does one-
fourth. He’s 52 years old now, plus15, that means he’d be—
Sneed: Your Honor, I’m going to have to renew my objection. There is a
specific instruction in the charge that prohibits the jury from applying the
parole law to this defendant.
The State: I’m just talking about when he would be eligible, Your Honor.
Trial Court: Overruled.
The State: Thank you. So in this case, for example, if you gave him 60, he
would become eligible when he’s 67 years old. I want to ask you-all, do
you-all feel safe with that? Do you-all feel safe letting a person who has
been convicted of DWI, I think it was nine times now, back out driving
with the rest of us when he’s 67? So now not only is he driving drunk,
now he’s a worse driver, because now he’s 67 years old. You know, I hate
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to say that. You know, my grandma can’t even drive at night now. I
know it gets harder to drive, the older you get. You know, he’s going to
be more dangerous when he’s 67 years old than he is now at 52. And you
saw what happened at age 52. He rolled his Explorer on the interstate,
you know, flipped it. So I just want you-all to think about that. I think—
I’m going to tell you-all right now, I don’t think 60 is enough.
Sneed argues that the State’s argument became improper when it argued that
Sneed would be out driving when he was 67 years old if he were given a 60 year
sentence.
The jury was properly instructed regarding the existence of parole and good-
time credit and Sneed’s issue does not complain of the trial court’s instructions in the
jury charge. Rather, Sneed complains that the State’s argument discussing Sneed’s
being free to drive at age 67 went beyond the permissible purpose of considering
eligibility for parole and crossed over into an impermissible request to consider how the
parole law would be applied to Sneed in the future. We agree. It is apparent that the
State’s arguments were specifically directed at Sneed and the notion of keeping him in
prison as long as possible because he would be released on parole when the formula is
met. Because we find the objections to that argument were erroneously overruled, we
must determine whether Sneed was harmed by the improper argument.
Improper jury argument is error of a non-constitutional dimension. See Mosley v.
State, 983 S.W.2d 249, 259 (Tex. Crim. App. 1998) (applying Texas Rule of Appellate
Procedure 44.2(b) to improper comments that fall outside of permissible argument). To
determine harm, we must determine whether the improper arguments affected a
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substantial right. See TEX. R. APP. P. 44.2(b); Martinez v. State, 17 S.W.3d 677, 692 (Tex.
Crim. App. 2000) (holding improper closing argument concerning matters outside
record is nonconstitutional error). A substantial right is affected when the error had a
substantial and injurious effect or influence on the jury’s verdict. King v. State, 953
S.W.2d 266, 271 (Tex. Crim. App. 1997).
In this harm analysis we balance the following three factors: (1) the severity of
the misconduct (the prejudicial effect); (2) the measures adopted to cure the misconduct;
and, (3) the certainty of punishment assessed absent the misconduct (the likelihood of
the same punishment being assessed). See Hawkins v. State, 135 S.W.3d 72, 77 (Tex.
Crim. App. 2004) (applying balancing factors as set forth in Mosley to punishment
proceedings in a non-capital case).
Severity of the Misconduct
The complained-of statement was surrounded by proper statements regarding
Sneed’s potential eligibility for parole, which would have been in fifteen years of a sixty
year sentence. However, the State’s arguments relating to Sneed driving on the same
roads as the jurors at age 67, which was 15 years from Sneed’s age at trial, were
moderately severe because the State’s argument regarding punishment then shifted to
an argument for the maximum sentence of life imprisonment, which the jury then
assessed.
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Curative Measures
The trial court overruled each of Sneed’s objections to the improper argument,
therefore, the trial court did not directly make any curative measures. Later in its
closing argument, co-counsel for the State briefly touched on the parole law properly
without objection to inform the jury that they could consider the one-fourth rule while
making a plea for life imprisonment as the maximum the jury could impose to do their
part to prevent future intoxication offenses by Sneed. This did little, if anything, to cure
the error.
We note that the jury charge contained a proper instruction to the jury not to
consider how good-conduct time and parole would be applied to Sneed. See TEX. CODE
CRIM. PROC. ANN. art. 37.07 § 4(c) (West 2006); Hawkins, 135 S.W.3d at 84 (“The law
specifically provides that the jury may consider the existence of parole law and good
time in making its punishment determination; the jury is simply prohibited from
considering how parole law and good time would be applied to a particular
defendant.”). There is a presumption that the jury followed the trial court’s written
instructions regarding parole law and good-conduct time absent any indication to the
contrary. See Rose v. State, 752 S.W.2d 529, 554 (Tex. Crim. App. 1988) (op. on reh’g).
The use of the proper instruction is a factor to consider in determining curative
measures. See Hawkins v. State, 135 S.W.3d 72, 84 (Tex. Crim. App. 2004).
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Likelihood of Sentence Absent the Improper Argument
Sneed was sentenced as a habitual offender, having pled true to two
enhancement allegations, and therefore, the range of punishment available to the jury
was twenty-five to ninety-nine years in prison or life. TEX. PEN. CODE ANN. § 12.42
(West Supp. 2011). Sneed was sentenced to the maximum sentence allowed by law. We
agree that there was other evidence to support that determination. Sneed was involved
in a single-vehicle accident and was determined to have a blood alcohol content of .26
grams per 100 milliliters of blood, which was well over three times the legal limit.
Sneed had been previously convicted of the offense of driving while intoxicated eight
times, and had been sentenced to as much as forty (40) years in prison for those
offenses. Sneed had six other criminal convictions as well for misdemeanor theft,
forgery, driving while license suspended, and unauthorized use of a motor vehicle.
Sneed and his wife testified during the punishment phase regarding their
stability and plans for the future, Sneed’s alcoholism and parents’ alcoholism, and his
military history as a Navy Seal during punishment in an effort to mitigate the sentence.
In addition, no one was involved or injured in the accident other than Sneed. We
believe that there is some doubt that the same sentence would have been assessed
without the overruling of the objection to the improper argument.
When we balance the above factors, we cannot say that the trial court’s error in
overruling Sneed’s objection to the State’s improper argument was harmless; that is,
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that it did not have a substantial effect on the jury’s verdict. See TEX. R. APP. P. 44.2(b).
Issue two is sustained.
Conclusion
Because the trial court erred by overruling Sneed’s objections to the State’s
improper jury argument and the error was harmful, we reverse the judgment of the trial
court and remand to that court for a new trial on punishment.
TOM GRAY
Chief Justice
Before Chief Justice Gray,
Justice Davis, and
Justice Scoggins
Affirmed
Opinion delivered and filed July 12, 2012
Do not publish
[CRPM]
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