Kyle Nathan Ward v. State

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-13-00296-CR
KYLE NATHAN WARD APPELLANT
V.
THE STATE OF TEXAS STATE
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FROM CRIMINAL DISTRICT COURT NO. 4 OF TARRANT COUNTY
TRIAL COURT NO. 1285530D
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MEMORANDUM OPINION1
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A jury convicted Appellant Kyle Nathan Ward of criminal mischief and, after
finding the enhancement allegations true, assessed his punishment at
confinement in the penitentiary for eleven years and a fine of $5,000. Appellant
brings this appeal complaining in two issues about the admission of his prior
convictions during the punishment trial. We affirm.
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See Tex. R. App. P. 47.4.
I. Background
The State indicted Appellant for the offense of criminal mischief with a
pecuniary loss of $1,500 or more but less than $20,000 that was committed on or
about June 18, 2012. Tex. Pen. Code Ann. § 28.03(a)(1) (West 2011). The
offense was a state jail felony. Tex. Pen. Code Ann. § 28.03 (b)(4)(A). The
punishment range for a state jail felony is confinement in a state jail for any term
of not more than two years or less than 180 days and a fine not to exceed
$10,000. Tex. Pen. Code Ann. § 12.35(a), (b) (West Supp. 2014). A jury found
Appellant guilty of the offense as charged. Appellant raises no complaint as to
his trial on guilt/innocence.
The State also alleged Appellant was finally convicted of the felony offense
of robbery in the 195th District Court of Dallas County, Texas, in cause number
F05-51748N, on March 3, 2006, and, prior to the commission of that offense,
Appellant had been finally convicted of the felony offense of unlawful possession
of a firearm by a felon in the 203rd District Court of Dallas County, Texas, in
cause number F-0256674-QP on February 14, 2004. If found true, these
convictions raised the punishment range for his current offense to that of a
second degree felony. Tex. Pen. Code Ann. § 12.425(b) (West Supp. 2014). A
second degree felony is punishable for any term of not more than twenty years or
less than two years and a fine not to exceed $10,000. Tex. Pen. Code Ann.
§ 12.33 (West 2011). The jury found the enhancements true and assessed
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Appellant’s punishment at confinement in the penitentiary for eleven years and a
fine of $5,000.
II. The Record
Appellant asserts two issues regarding the admission of his prior
convictions. To understand his complaints, we first set out the relevant exhibits,
which are State’s Exhibits 24, 24A, and 25. State’s Exhibit 24 is an unredacted
version of four Dallas County convictions, including the two that were used for
enhancement purposes. The trial court admitted State’s Exhibit 24 for record
purposes only. State’s Exhibit 24A is the redacted version of the four Dallas
County convictions that the trial court actually admitted for the jury’s
consideration. State’s Exhibit 25 contains a misdemeanor conviction out of
Tarrant County.
III. Appellant’s First Issue
In his first issue, Appellant asserts the trial court erred by admitting State’s
Exhibits 24A and 25 because the prior convictions were not in proper form and
were, therefore, inadmissible.2 Appellant raises two complaints. First, he
complains that the district clerk’s certificates to the judgments appear on
separate, blank pages that do not reference any other pages. Next, he
2
In his brief, Appellant refers to State’s Exhibits 24 and 25. We construe
Appellant’s complaint to address the admission of State’s Exhibit 24A, as that
was the exhibit the jury considered when assessing punishment.
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complains that the documents fail to show that a district judge reviewed and
approved the magistrates’ findings.
State’s Exhibit 25
To the extent Appellant complains about State’s Exhibit 25 in his first
issue, State’s Exhibit 25 contains a county court misdemeanor conviction out of
Tarrant County, the county court clerk’s certificate appears on each page of the
document, the judgment is signed by the county judge, and there is nothing
suggesting a magistrate was involved. We overrule any complaint as to State’s
Exhibit 25.
State’s Exhibits 24 and 24A—Authentication
In his brief, Appellant refers to the composite exhibits “24 and 25.” As
described above, State’s Exhibit 24 is the unredacted version of the four Dallas
County convictions that the trial court admitted for record purposes only. State’s
Exhibit 24A is the redacted version of the same four convictions that the trial
court admitted for the jury’s consideration. Unlike the Tarrant County County
Clerk, the Dallas County District Clerk did not place a certification on each page
of the document but, instead, placed the certification on a separate, blank page
behind each judgment. In conjunction with the judgment in F05-51748N,
Appellant’s trial counsel stated, “[I]t’s all stapled together.” Later Appellant’s trial
counsel, when discussing the redactions, stated he wanted the original exhibit,
which contextually appears to be State’s Exhibit 24, to be kept in exactly the
same form with a single staple in it. The exhibit itself shows the documents
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presented in a fixed order. The certificates affirm: “I, Gary Fitzsimmons, District
Clerk of Dallas County, Texas, do hereby certify that the foregoing is a true and
correct copy as the same appears on record now on file in my office.” State’s
Exhibit 24A contains the same four judgments but not the separate sheets
containing the district clerk’s certificates. To the extent Appellant refers to a
composite of State’s Exhibits 24 and 25, he appears to be referring to a
composite of State’s Exhibits 24 and 24A, because the only way to understand
his complaint regarding the clerk’s certificates is to refer to State’s Exhibit 24.
Appellant relies on Blank v. State, 172 S.W.3d 673 (Tex. App.—San
Antonio 2005, no pet.). The court in Blank specifically stated that a prior
conviction may be proven by certified copies of a judgment and sentence. Id. at
675. In Blank, there was a clerk’s certification of a “Case Synopsis.” Id. The
court concluded a case synopsis was not a judgment and sentence, reversed the
judgment, and remanded the case for a new trial on punishment. Id. at 675–76.
We find Blank distinguishable because Blank does not question the certification
but, rather, the underlying certified document. Appellant’s complaint goes to the
certification, not the underlying document.
Appellant also relies on Martinez v. State, 754 S.W.2d 831 (Tex. App.—
Houston [14th Dist.] 1988, no pet.). There the State tried to prove up a prior
conviction with a mandate of affirmance from a court of appeals. Id. at 833. The
attempted authentication came not from the clerk of the appellate court but from
a Walker County notary public who had received a copy of the appellate court’s
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mandate. Id. Because there was nothing showing the notary public was the
custodian of the original document, the court ruled the document was not
properly authenticated and reversed the judgment for a new trial on punishment.
Id. at 834–35. We hold Martinez is distinguishable as well. Appellant’s complaint
is not that the wrong clerk attempted to authenticate the judgments and
sentences; rather, Appellant’s complaint is the manner by which the proper clerk
authenticated the judgments and sentences—by placing the certificate on a blank
page following the judgments and sentences and by having the certificate refer
back to the preceding documents.
In Alvarez v. State, twenty-eight pages of a document were stapled
together as one unit with a certification appearing on the back of the last page.
536 S.W.2d 357, 361 (Tex. Crim. App.), cert. denied, 429 U.S. 924 (1976). The
court held the certification was sufficient. Id. Here, the certificates referenced
the “foregoing,” that is, the preceding documents are true and correct; the four
judgments and supporting documents precede each of the four certificates; and
the record shows the documents were stapled together sequentially, so there is
no ambiguity regarding which preceding documents the certificates were in
reference to. We find no merit in Appellant’s authentication complaint. See Tex.
R. Evid. 902(1), (4).
State’s Exhibits 24 and 24A—the Magistrate Issue
Regarding Appellant’s complaints that the judgments failed to show the
district judges reviewed and approved the magistrates’ findings, three of the four
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judgments in State’s Exhibits 24 and 24A either expressly or implicitly show both
a magistrate’s and a presiding judge’s involvement. The judgment for cause
number F-0256674-QP identifies Terrie McVea as the magistrate and Lana
McDaniel as the judge and is signed by Judge McDaniel. The second judgment,
F05-51748N, identifies Terrie McVea (ostensibly the same Terrie McVea
identified as a magistrate in judgment F-0256674-QP) as the judge but is signed
by John Nelms, “Judge, 195th District Court.” The third judgment, F01-57673-S,
identifies Stephen Halsey as the magistrate and Karen Greene as the judge and
is signed by Karen Greene, “Judge Presiding.”
Regarding the fourth judgment, F-0859342-X, it identifies Jeanine Howard
as the judge and is signed by Jeanine Howard. There is no suggestion of a
magistrate in F-0859342-X, and Appellant does not appear to include this
judgment within his magistrate complaint but, instead, appears to limit his
complaints as to F-0859342-X to the certification issue. We do not construe
Appellant’s magistrate complaint to encompass this judgment, and to the extent it
does, the record does not support his contention that a magistrate was involved.
Appellant complains there is nothing showing the district judges reviewed
the magistrates’ evidentiary findings. A presumption of regularity applies to court
proceedings. Christian v. State, 865 S.W.2d 198, 202 (Tex. App.—Dallas 1993,
pet. ref’d). A defendant has the burden of overcoming the presumption of
regularity by presenting a record affirmatively showing the irregularity about
which he complains. Id. The judgment in F-0256674-QP affirmatively recites the
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judge reviewed the magistrate’s findings and approved them. The judgments in
F05-51748N and F01-57673-S do not affirmatively show the judges reviewed
and approved the magistrates’ findings, but they do not affirmatively show the
contrary either. Absent the record affirmatively showing the trial judges did not
review the magistrates’ actions, we have no authority to reverse a judgment.
See id.
Furthermore, Appellant’s complaints go to the procedures followed or, as
he argues, not followed by the district judges before signing the judgments of
conviction. Appellant’s complaints are impermissible collateral attacks. Only
void convictions are subject to collateral attack. Id. at 201. Appellant is not
arguing the convictions are void. Noncompliance with procedural requirements is
not fundamental error subject to collateral attack. Id. (relying on Armstrong v.
State, 805 S.W.2d 791, 793 n.3 (Tex. Crim. App. 1991)). Any alleged procedural
error would render the convictions voidable, not void. Cobbins v. State, Nos. 05-
92-02463-CR, 05-92-0264-CR, 1996 WL 404001, at *2 (Tex. App.—Dallas July
15, 1996, no pet.) (not designated for publication). Even assuming Appellant’s
complaints had merit, the errors would render the judgments voidable, not void.
See Christian, 865 S.W.2d at 201. Because Appellant has not affirmatively
shown error and because any error would be an impermissible collateral attack,
we hold that there is no merit in Appellant’s magistrate complaints and overrule
his first issue. Id. at 203.
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IV. Appellant’s Second Issue
In his second issue, Appellant argues that the State failed to prove that any
of the judgments in State’s Exhibits 24A and 25 were final convictions as alleged
in the indictment.3 Appellant correctly asserts that for enhancement purposes,
the convictions in F05-51748N and F-0256674-QP were required by statute to be
final. See Tex. Pen. Code Ann. § 12.425(b). Appellant complains there is
nothing in the record showing whether these convictions were appealed and,
therefore, whether they were final for enhancement purposes. Appellant
contends his punishment range should thus have remained that of a state jail
felony with a maximum of two years’ confinement.
The crux of Appellant’s complaint is the enhancement of the range of his
punishment from a state jail felony to a second degree felony. The only two
convictions pertinent to that complaint are F05-51748N and F-0256674-QP found
in State’s Exhibit 24A. Those were the two convictions alleged for enhancement
purposes in the State’s indictment. Accordingly, to the extent Appellant’s brief
complains about State’s Exhibit 25 pertaining to the misdemeanor conviction, we
overrule his complaint, as the conviction in State’s Exhibit 25 had no bearing on
the range of his punishment. Similarly, to the extent Appellant complains about
3
Here, again, Appellant’s brief refers to State’s Exhibit 24. For the reasons
explained earlier, we construe his brief to reference State’s Exhibit 24A, which
was the redacted version the jury actually considered.
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the other two convictions in State’s Exhibit 24A, we overrule his complaint as to
them because they also had no bearing on the range of his punishment. We limit
our remaining discussion to the convictions in cause numbers F05-51748N and
F-0256674-QP found in State’s Exhibit 24A.
The State carries its burden by introducing copies of the judgment and
sentence for each enhancement and connecting each one to the defendant.
Tinney v. State, 578 S.W.2d 137, 139 (Tex. Crim. App. [Panel Op.] 1979). In
Tinney, the court held the judgments were admissible provided they were
properly certified and provided they were connected to the defendant through
fingerprint evidence. Id. We held in Appellant’s first issue that the exhibits were
properly certified. Additionally, a fingerprint expert testified that he had compared
Appellant’s known fingerprints to those in the judgments and had concluded they
were the same. Under Tinney, these convictions were admissible. See id.
Once the State shows a prior conviction, the burden shifts to the defendant
to show the judgment was not final. Id.; Hamlin v. State, 632 S.W.2d 203, 206
(Tex. App.—Fort Worth 1982, no pet.). Appellant’s brief does not specify where
he complained at trial about the State’s failure to prove the judgments were final.
Appellant directs us to trial counsel’s objections to these documents, but our
review of these objections does not show any such complaint. We hold the State
carried its burden of making a prima facie case, and in the absence of any
objection or evidence to the contrary, we hold the judgments were final. We
overrule Appellant’s second issue.
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V. Conclusion
Having overruled Appellant’s two issues, we affirm the trial court’s
judgment.
/s/ Anne Gardner
ANNE GARDNER
JUSTICE
PANEL: DAUPHINOT, GARDNER, and GABRIEL, JJ.
DO NOT PUBLISH
Tex. R. App. P. 47.2(b)
DELIVERED: November 13, 2014
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