William Geoffrey Thacker v. State

COURT OF APPEALS
EIGHTH DISTRICT OF TEXAS
EL PASO, TEXAS
WILLIAM GEOFFREY THACKER, § No. 08-18-00085-CR
Appellant, § Appeal from the 205th
v. § Judicial District Court
STATE OF TEXAS, § of El Paso County, Texas
Appellee. § (TC#20170D02483)
OPINION
A jury found Appellant William Geoffrey Thacker guilty of two counts of sexual assault
of a child, and one count of trafficking a child for sexual assault.1 The trial court sentenced
Appellant to a life sentence based on a finding that he had been convicted of a prior sexual offense
in 2008 in North Carolina. Appellant raises six issues on appeal. Three issues pertain to a
confession that he made shortly after his arrest. Three additional issues contend that his sentence
was improperly enhanced with a prior conviction from North Carolina. Because we sustain
Appellant’s last issue--a claim that the State failed to meet its burden of proving the finality of
1
A person commits the offense of “trafficking of persons,” if, among other things, the person “traffics a child and by
any means causes the trafficked child to engage in, or become the victim of, conduct prohibited by . . . Section 22.011
(Sexual Assault).” TEX.PENAL CODE ANN. § 20A.02(7)(C).
1
Appellant’s prior conviction--we remand for a new sentencing hearing. But we overrule
Appellant’s other issues and affirm the judgment of conviction on the issue of Appellant’s guilt.
I. FACTUAL BACKGROUND
A. Events Leading to Appellant’s Arrest
Sometime in early 2016, Appellant (who was 27 years old) met K.S. (who was 16 years
old) at a carnival in Burlington, North Carolina. Appellant and K.S. thereafter developed a
friendship over the course of the next several months. On May 17, 2016, after being suspended
from school, K.S. snuck out of the house where she lived with her adoptive parents, and contacted
Appellant, informing him that she wanted to attend a party with some friends in Virginia Beach,
Virginia. After Appellant agreed to take her to Virginia Beach, K.S. voluntarily entered
Appellant’s vehicle. As they were driving, K.S. fell asleep and when she awoke, they were driving
through Georgia. She immediately told Appellant that she wanted to return home. According to
K.S., Appellant refused her requests to return home, and thereafter held her against her will for the
next two weeks, as they traveled West, crossing several state lines, and ultimately ending their
travels in Texas.
According to K.S., during the two weeks they traveled together, Appellant threatened to
harm her if she told anyone that she was being held against her will, and made her pretend to be
his pregnant wife when they were in public. K.S. testified that during the first week of their
journey, they slept in Appellant’s truck, and Appellant forced her to have both vaginal and anal
sex with him multiple times a day, against her will, both in the truck, as well as on the side of the
road. Subsequent testing on the cloth seats of Appellant’s truck revealed a sperm-cell DNA sample
containing a mixed DNA sample from Appellant and K.S.
2
During the second week of their travels, and after driving into New Mexico and Arizona,
Appellant turned around and began driving East into Texas.2 Appellant’s truck suffered a flat tire
and damaged the rim several miles outside of El Paso. A Good Samaritan assisted them by giving
Appellant a temporary job so that he could earn enough money to repair the wheel. Appellant and
K.S. thereafter stayed in a motel in El Paso for approximately a week, and throughout that time,
Appellant worked during the day for the Good Samaritan’s landscaping business, while K.S. spent
the day with the Good Samaritan’s wife and two daughters at their house.3 K.S. testified that while
staying in the motel, Appellant continued to force her to engage in nonconsensual sexual activities,
including vaginal, oral, and anal sex multiple times a day.
With the truck repaired, Appellant and K.S. left El Paso heading East on Interstate 10. The
next morning, Appellant was spotted speeding near Van Horn, Texas, by a State Trooper. A
license plate check turned up a warrant for Appellant’s arrest. After a failed traffic stop, followed
by a high-speed chase, officers were finally able to stop Appellant’s truck by shooting out his tires.
Upon exiting the truck, K.S. informed the officers that she was a 16-year-old runaway from North
Carolina.4
2
K.S. testified that at various times, Appellant told her that he wanted to drive them either into Mexico or Canada, so
that they could not be found.
3
Although K.S. spent the day with the Good Samaritan’s wife and children, she did not reveal to anyone in the family
that she was being held against her will. At trial, the Good Samaritan and his wife both testified that they observed
Appellant and K.S. act lovingly toward each other. K.S. claimed that she did not reveal her plight to them because
she did not want to upset the couple’s teenage daughters, and because she believed Appellant would become angry or
violent with her if she did.
4
After Appellant was taken into custody, K.S. made conflicting statements to law enforcement officers regarding
whether Appellant had held her against her will, initially stating that she did not want them to think that she “didn’t
want to be with [Appellant] because [she] did.” However, K.S. later told the officers that although she initially left
North Carolina with Appellant on a voluntary basis, she later informed him that she wanted to return home, but he
forced her to stay with him throughout the next two weeks.
3
Appellant was placed under arrest and read his Miranda rights at the scene by the arresting
officer. Appellant was thereafter transported to Van Horn, Texas, where he was interrogated by
the Texas Rangers in a recorded interview.
B. The Custodial Interrogation
During the interrogation, Appellant informed the Rangers that K.S. contacted him on
May 17, 2016, while he was in the process of planning a trip to Mississippi to visit his sister, and
she agreed to join him on the trip. According to Appellant, however, shortly after leaving, the
phone charger in his vehicle stopped working, and he threw his phone out the truck’s window in
anger, leaving him unable to navigate to his sister’s house. Appellant claimed that he and K.S.
agreed to continue driving West on Interstate 10, so that they could explore Texas and its
neighboring states.
Appellant initially informed the Rangers that he and K.S. did not engage in sexual
intercourse at any time during their travels, as he knew K.S. was 16 years old, and that he therefore
could not have sexual relations with her. However, as explained in more detail below, Appellant
eventually confessed that he had engaged in sexual intercourse with K.S. on an almost-daily basis
during their two weeks together. Appellant repeatedly claimed, however, that the intercourse was
consensual at all times, and that K.S. was a willing participant in everything they did.
II. PROCEDURAL BACKGROUND
Appellant was indicted on two counts of sexual assault of a child younger than 17 years of
age, and one count of trafficking a child younger than 18 years of age, with the intent that the
victim “engage in or become the victim of sexual assault.”
Prior to trial, Appellant moved to suppress his confession, arguing, among other things,
that the confession was “involuntary,” as it was the result of “coercion, intimidation, and/or
4
promises made by the State and its investigative agents.” In addition, Appellant argued that he
invoked his right to counsel during the interrogation, but the interrogating officers failed to honor
that request, and continued to interrogate him in violation of his rights under Miranda and the
Texas Code of Criminal Procedure. Following a hearing, the trial court denied the motion to
suppress, and at trial, excerpts of the recorded interview were admitted into evidence.
Following trial, the jury convicted Appellant of all three counts as charged in the
indictment. He elected to have the trial court sentence him. After conducting two hearings on the
issue, the trial court found that Appellant had been previously convicted in 2008 of a second-
degree forcible sexual offense in North Carolina, and the trial court used that prior conviction, over
Appellant’s objections, to impose a mandatory sentence of life in prison, pursuant to Article 12.42
of the Texas Code of Criminal Procedure.
III. ISSUES ON APPEAL
We consider Appellant’s first three issues in reverse order, first addressing Appellant’s
contention that the trial court erred in denying his motion to suppress his confession, and then
addressing his argument that the trial court gave an erroneous or defective charge to the jury
regarding the admissibility of his confession. We then consider Appellant’s next three issues
regarding whether the trial court erred in using the prior conviction from North Carolina to enhance
his sentence.
IV. THE DENIAL OF THE MOTION TO SUPPRESS
A. Standard of Review
We review a trial court’s ruling on a motion to suppress a confession under a bifurcated
standard of review. See Weems v. State, 493 S.W.3d 574, 577 (Tex.Crim.App. 2016); see also
State v. Alderete, 314 S.W.3d 469, 472 (Tex.App.--El Paso 2010, pet. ref’d). Under this bifurcated
5
standard, we afford almost total deference to the trial court's determination of historical facts,
especially when those determinations are based on assessments of witness credibility and
demeanor. See Furr v. State, 499 S.W.3d 872, 877 (Tex.Crim.App. 2016); see also Brodnex v.
State, 485 S.W.3d 432, 436 (Tex.Crim.App. 2016). However, we conduct a de novo review of
mixed questions of law and fact that do not hinge on credibility or demeanor, as well as the trial
court's application of the law to the facts. Brodnex, 485 S.W.3d at 436. Additionally, we conduct
a de novo review with regard to pure questions of law. State v. Woodard, 341 S.W.3d 404, 410
(Tex.Crim.App. 2011). Where, as here, a videotape exists of the defendant’s confession, and no
credibility issues exist, the court’s review is entirely de novo. See Herrera v. State, 194 S.W.3d
656, 658 (Tex.App.--Houston [14th Dist.] 2006, pet. ref'd).
B. Whether Appellant Invoked his Right to Counsel
In his second issue, Appellant argues that despite invoking his right to counsel, the Rangers
continued to question him. The issue turns on the initial premise of his argument that he invoked
the right to counsel.
1. The Davis bright-line test
Because an accused is entitled to the assistance of counsel during custodial interrogation,
he must be informed of his right to counsel at the start of the interrogation; further, if the accused
invokes the right to counsel at any time during the interrogation, the officers must cease their
questioning until counsel has been provided, or until the suspect voluntarily reinitiates dialogue.
See Davis v. United States, 512 U.S. 452, 458 (1994), citing Miranda v. Arizona, 384 U.S. 436
(1966); see also State v. Gobert, 275 S.W.3d 888, 892 (Tex.Crim.App. 2009). This secondary
Miranda right is “designed to prevent police from badgering a defendant into waiving his
previously asserted Miranda rights[.]” Davis, 512 U.S. at 458.
6
In order to address the difficulties of proof in determining whether an accused has invoked
the right to counsel during an interrogation, as well as to provide guidance to officers conducting
such interrogations, the United States Supreme Court established an objective “bright line” rule
for determining when a suspect’s statements were sufficient to invoke the right to counsel. Id. at
458-59. This test distinguishes between situations in which an accused might be asking for a
lawyer from those in which the accused actually asks for one. Thus, in order to find that an accused
invoked the right to counsel, there must be evidence that the accused made an unambiguous and
unequivocal statement that could reasonably be construed to be an actual expression of a desire
for the assistance of an attorney. Id. Conversely, if a suspect only makes an ambiguous or
equivocal reference to an attorney, which a reasonable officer in light of the circumstances would
not have understood to be an invocation of the right to counsel, the interrogating officers are not
required to cease questioning. Id.; see also Davis v. State, 313 S.W.3d 317, 339-41
(Tex.Crim.App. 2010) (recognizing that the test for determining whether a request for counsel was
made is objective, and is based on whether the suspect “articulate[d] his desire to have counsel
present sufficiently clearly that a reasonable police officer in the circumstances would understand
the statement to be a request for an attorney”). Therefore, under Davis, the mere mention of the
word “attorney” or “lawyer” by an accused during an interrogation, without more, does not invoke
the right to counsel. Gobert, 275 S.W.3d at 892-93, citing Dinkins v. State, 894 S.W.2d 330, 351
(Tex.Crim.App. 1995). Further, when an accused makes an ambiguous reference to an attorney,
although it may be good police practice to do so, interrogating officers are not required to seek
clarification of whether the accused truly wishes to invoke the right to counsel before continuing
their questioning. See Davis, 512 U.S. at 461
7
2. Appellant clarifying questions did not invoke the right to counsel
After asking Appellant a series of background questions, the lead interrogating officer,
Texas Ranger Roy McMullen, reminded Appellant that he had previously been read his Miranda
warnings at the time of his arrest, and then read Appellant those rights once again. Appellant
responded that he was willing to speak to the officers. However, later in the interview, and as the
Ranger focused on whether Appellant engaged in sex with K.S., Appellant made the following
statements, which he now claims were an invocation of his right to counsel:
[APPELLANT]: If I ask for a lawyer right now do you-all leave and then come
back or can you-all get me a lawyer in here right now?
[RANGER] MCMULLEN: I can get you a lawyer in here right now.
[APPELLANT]: I mean, is it possible to get a lawyer in here right now?
[RANGER] MCMULLEN: I’m not sure if it’s possible to get a lawyer right now.
Was it consensual or was it forced?
Citing pre-Davis authority, Appellant argues that the two questions he asked were
sufficient to invoke his right to counsel and that the Rangers were therefore required to cease
questioning him at that time.5 We disagree. Applying the bright-line test in Davis, Texas courts
have uniformly held that when a suspect asks a generalized question seeking to clarify the right to
counsel, this is not considered an unambiguous or unequivocal expression of a desire to invoke the
right to counsel. See, e.g., Dinkins, 894 S.W.2d at 352 (suspect’s question concerning what an
attorney would tell him to do under the circumstances did not rise to an invocation of the right to
counsel); Robinson v. State, 851 S.W.2d 216, 223-24 (Tex.Crim.App. 1991) (en banc) (suspect’s
question asking, “Do I need to talk to a lawyer before I sign?” was equivocal and did not invoke
the right to counsel); State v. Munoz, No. 08-16-00023-CR, 2018 WL 1517006, at *10 (Tex.App.-
5
As the State points out, the cases relied on by Appellant for this proposition predate the holding in Davis in which
the Court adopted the bright-line test we apply today. We therefore do not consider these cases in our analysis.
8
-El Paso Mar. 28, 2018, no pet.) (not designated for publication) (accused’s question, asking, “So
why can’t my lawyer be present?” was not an unequivocal or unambiguous invocation of his right
to counsel). The questions that Appellant asked during the interrogation were generalized
questions that, at most, sought to clarify whether it would be “possible” to have an attorney brought
in to assist him, which were too ambiguous to be considered an invocation of the right to counsel.
See, e.g., Gutierrez v. State, 150 S.W.3d 827, 832 (Tex.App.--Houston [14th Dist.] 2004, no pet.)
(suspect's question asking, “Can I have [a lawyer] present now?” was ambiguous and did not
clearly invoke the right to counsel); Loredo v. State, 130 S.W.3d 275, 284-85 (Tex.App.--Houston
[14th Dist.] 2004, pet. ref'd) (suspect's question asking, “Can I ask for a lawyer now?” was not an
unambiguous invocation of right to counsel).
Further, we find it significant that at other times during the interrogation, Appellant made
statements indicating that he did not intend to invoke his right to counsel, first expressing his
willingness to speak freely with the officers at the start of the interrogation after being read his
rights, and later stating during the midst of the interrogation: “I’m sitting here cooperating. I’m
actually answering these questions and talking to you without a lawyer of my own volition.”
Appellant’s expressed willingness to voluntarily speak with the Rangers, without the assistance of
counsel, bolsters our conclusion that a reasonable officer in Ranger McMullen’s position would
not have interpreted Appellant’s clarifying questions, as described above, to be an unambiguous
invocation of the right to counsel. See Davis, 313 S.W.3d at 341 (conclusion that defendant’s
statements were too equivocal and ambiguous to invoke the right to counsel was bolstered by the
fact that the defendant subsequently made statements to the officers signaling that the interview
should continue).
Appellant’s Issue Two is overruled.
9
C. Whether Appellant’s Confession was Involuntary as a Matter of Law
In his third issue, Appellant contends that the trial court erred by denying his motion to
suppress his confession, contending it was rendered involuntary based on the following four
statements Ranger McMullen made to Appellant during the interrogation:
“That’s what I’m here for. I’m going to help you out.”
“Well, and that’s what I’m here for again. I’m going to help you here. I’m going
to help you remember.”
“I’m trying to help you out here William.”
“I understand that, man. I understand that, but you’ve got to understand that we’re-
-we’re here to help you out. All right?”
In making this argument, Appellant relies on a line of cases, beginning with Dunn v. State,
in which the Court of Criminal Appeals held that a defendant’s confession was rendered
involuntary as a matter of law under the Code of Criminal Procedure, because it came after an
interrogating officer told the defendant during the midst of the interrogation that a confession could
be used “for or against him.” Dunn v. State, 721 S.W.2d 325, 341 (Tex.Crim.App. 1986) (en
banc). In reaching this conclusion, the court noted that the Code of Criminal Procedures requires
an interrogating officer to warn the suspect that his confession could be used “against” him, and
that the officer’s statement that the confession could be used “for or against” him was a
misstatement of the warnings set forth in the Code. Id.
The holding in Dunn, however, was abrogated in 1997 by the Court of Criminal Appeals’
opinion in Creager v. State, 952 S.W.2d 852, 856 (Tex.Crim.App. 1997) (en banc). In Creager,
the Court held that a confession was only rendered involuntary as a matter of law if the
interrogating officers made the “for or against” misstatement before the interrogation, but that
similar remarks made by the officers during the interrogation did not have this same effect. Id. at
10
856. Instead, the Court in Creager held that when such remarks are made during an interrogation-
-after proper statutory warnings have been given at the outset--a court must examine the nature of
the officers’ remarks under a “totality of the circumstances” test to determine if the remarks
rendered the defendant’s confession involuntary. Id., citing Armstrong v. State, 718 S.W.2d 686,
693 (Tex.Crim.App. 1985) (en banc); see also Delao v. State, 235 S.W.3d 235, 239
(Tex.Crim.App. 2007), citing Arizona v. Fulminante, 499 U.S. 279, 285-86 (1991) (in order to
determine whether a confession was made freely and voluntarily, a court must examine the totality
of the circumstances under which the confession was made).
When applying the totality of the circumstances test, we focus on whether the challenged
remarks were “calculated to produce an untruthful confession or was offensive to due process.”
Creager, 952 S.W.2d at 856; see also Wilson v. State, 311 S.W.3d 452, 461 (Tex.Crim.App. 2010);
Maynes v. State, No. 08-16-00024-CR, 2018 WL 1082245, at *5 (Tex.App.--El Paso Feb. 28,
2018, no pet.) (not designated for publication). In this case, and contrary to Appellant’s assertion,
none of the four remarks that he challenges informed Appellant, either directly or indirectly, that
a confession could be used “for or against” him, or that a confession would help his case.6 Instead,
at most, Ranger McMullen’s four statements could be categorized as general offers to “help” or
assist Appellant, with no specific indication of what form such “help” might take.
Courts have uniformly held that when, as here, an interrogating officer makes only a
generalized offer to help a defendant, such an offer is not likely to induce an accused to make an
6
Moreover, even if Ranger McMullen’s statements could be interpreted as informing Appellant that a confession
could help his case, courts have uniformly held that such statements are not likely to induce an accused to make an
untruthful statement, and therefore do not render a confession involuntary. See Dykes v. State, 657 S.W.2d 796, 796
(Tex.Crim.App. 1983) (en banc) (recognizing that a confession is not rendered inadmissible because it is made after
an accused has been told that it would be “best to tell the truth,” or “best for him to go ahead and make a statement.”);
see also Muniz v. State, 851 S.W.2d 238, 253-54 (Tex.Crim.App. 1993) (en banc) (statements made to a suspect
regarding how a confession can sometimes result in leniency do not render a confession involuntary); Drake v. State,
123 S.W.3d 596, 603 (Tex.App.--Houston [14th Dist.] 2003, pet. ref'd) (officer's assertion to defendant that she “could
help herself” by giving a statement did not render statement involuntary).
11
untruthful statement, and therefore will not typically invalidate a confession. See Garcia v. State,
919 S.W.2d 370, 388 (Tex.Crim.App. 1996); see also Vieira v. State, No. 08-16-00100-CR, 2018
WL 3084155, at *7 (Tex.App.--El Paso June 22, 2018, no pet.) (not designated for publication)
(recognizing that “unspecific offers to help” an accused during an interrogation are not likely to
induce a suspect to make an untruthful statement and will therefore not invalidate a confession).
Instead, in order for an offer of help to render a defendant’s statement involuntary, there must be:
(1) a specific promise of some benefit to the accused, (2) that is positive, (3) made or sanctioned
by someone in authority, and (4) of such an influential nature that it would cause a defendant to
speak untruthfully. Martinez v. State, 127 S.W.3d 792, 794 (Tex.Crim.App. 2004). As set forth
above, Appellant has not pointed to any specific promises made by Ranger McMullen in which he
agreed to provide a benefit to Appellant if he confessed. Accordingly, we conclude that Ranger
McMullen’s remarks were not likely to induce Appellant into making an untruthful statement, and
they did not render Appellant’s confession involuntary. See Garcia, 919 S.W.2d at 388.
Appellant’s Issue Three is overruled.
V. THE JURY CHARGE ERROR
In Issue One, Appellant contends that the jury charge misstated the law with regard to when
it could consider a defendant’s confession. In particular, he contends that the jury charge was
erroneous because: (1) it failed to instruct the jury that it could only consider an accused’s
confession made during a custodial interrogation if the interrogating officers honored the accused’s
right to counsel, and (2) it improperly instructed the jury that an accused has the burden of proving
that a confession was not made in compliance with the Code, when it should have placed the
burden on the State to prove that the confession was made in compliance with the Code.
12
A. Standard of Review
In a criminal case, the trial court is required to “deliver to the jury . . . a written charge
distinctly setting forth the law applicable to the case[.]” TEX.CODE CRIM.PROC.ANN. art. 36.14;
see also Mendez v. State, 545 S.W.3d 548, 551-52 (Tex.Crim.App. 2018). Because of this
requirement, an “alleged jury-charge error must be considered on appellate review regardless of
preservation in the trial court.” Kirsch v. State, 357 S.W.3d 645, 649 (Tex.Crim.App. 2012). We
therefore review complaints of jury-charge error under a two-step process, considering first
whether error exists; and if so, we then review the record to determine whether the error caused
sufficient harm to require reversal. Wooten v. State, 400 S.W.3d 601, 606 (Tex.Crim.App. 2013).
If the defendant preserved error by timely objecting to the charge, an appellate court will reverse
if the defendant demonstrates that he suffered some harm as a result of the error. Sakil v. State,
287 S.W.3d 23, 25-26 (Tex.Crim.App. 2009). If the defendant did not object at trial, we will
reverse only if the error was so egregious and created such harm that the defendant did not receive
a fair and impartial trial. Id. at 26. However, if the defendant was not entitled to the jury charge
in the first instance, any error in the charge is considered harmless and does not require reversal of
the defendant’s conviction. See, e.g., Torres v. State, No. 08-13-00027-CR, 2016 WL 5404773,
at *3 (Tex.App.--El Paso Sept. 28, 2016, pet. ref'd) (not designated for publication) (recognizing
that when a defendant was not entitled to an instruction, but the trial court nevertheless gives the
instruction, any error in the instruction is harmless), citing Hughes v. State, 897 S.W.2d 285, 301
(Tex.Crim.App. 1994).
B. The Defects in the Jury Charge
“No oral . . . statement of an accused made as a result of custodial interrogation shall be
admissible” unless the accused receives five specific warnings about his rights and the accused
13
then “knowingly, intelligently, and voluntarily waives” those rights. TEX.CODE CRIM.PROC.ANN.
art. 38.22, § 3. Further, Section 7 of Article 38.22 provides that when the issue is “raised by the
evidence, the trial judge shall appropriately instruct the jury, generally, on the law pertaining” to
when a statement may be considered to be in compliance with the Code. Id. art. 38.22, § 7. Thus,
when applicable, a defendant is entitled to a so-called Section 7 instruction, explaining that a
confession may not be considered unless the State establishes beyond a reasonable doubt, that the
warnings were properly administered in accordance with the Code, and that the accused knowingly
and voluntarily waived his rights as set forth in the warnings. Contreras v. State, 312 S.W.3d 566,
572, 580 (Tex.Crim.App. 2010); see also Oursbourn v. State, 259 S.W.3d 159, 174, 180-181
(Tex.Crim.App. 2008); Delao v. State, 235 S.W.3d 235, 237 n.2 (Tex.Crim.App. 2007) (burden is
on the State to prove a defendant’s statement was voluntarily made in compliance with defendant’s
rights). One of those warnings includes the right to counsel. TEX.CODE CRIM.PROC.ANN.
art. 38.22, § 2(a)(3)-(4).
The jury charge in the present case instructed the jury that:
No oral statement of an accused made as a result of custodial interrogation shall be
admissible against the accused in a criminal proceeding unless the accused received
from the person to whom the statement is made, a warning that: (1) he has the right
to remain silent and not make any statement at all and that any statement he makes
may be used against him at his trial; (2) any statement he makes may be used as
evidence against him in court; (3) he has the right to have a lawyer present to advise
him prior to and during any questioning; (4) if he is unable to employ a lawyer, he
has the right to have a lawyer appointed to advise him prior to and during any
questioning, and (5) he has the right to terminate the interview at any time.
While the charge included the five statutory warnings, the charge failed to also instruct the jury
that the confession could not be considered unless the accused knowingly, intelligently, and
voluntarily waived the rights set forth in those warnings. Further, as Appellant also points out,
and the State concedes, the jury charge erroneously placed the burden on Appellant to establish
14
that the confession was obtained in violation of the Code.7 Instead, that burden should have rested
with the State.
C. No Harm Resulted from the Defects in the Jury Charge
Although the parties disagree on whether this error was preserved by Appellant’s objection
and what standard of harm we should apply, we conclude that the error in the jury charge does not
require reversal of Appellant’s conviction regardless of whether the error was preserved or not, as
Appellant was not entitled to a Section 7 instruction in the first instance. A defendant is only
entitled to a Section 7 instruction when the issue of whether the interrogating officers complied
with the Code is “raised by the evidence,” and therefore there must be a “factual dispute” in the
evidence regarding whether a defendant’s confession was made in compliance with the
requirements of the Code before such an instruction will be given. See Oursbourn, 259 S.W.3d at
174, 176; Dinkins v. State, 894 S.W.2d 330, 354 (Tex.Crim.App. 1995), citing Hernandez, 819
S.W.2d 806, 812 (Tex.Crim.App. 1991) (en banc); see also Mendoza v. State, No. 13-09-0027-
CR, 2011 WL 2402045, at *6-8 (Tex.App.--Corpus Christi June 9, 2011, no pet.) (mem. op., not
designated for publication) (holding that defendant was not entitled to a Section 7 instruction,
where the evidence did not raise a fact issue as to whether he requested to terminate interrogation).
And we find no such factual dispute in this record.
As set forth above, the undisputed facts reflect that Appellant was read his Miranda
warnings both at the time of his arrest and prior to giving his confession, and that he voluntarily
waived those warnings when he agreed to speak with the Rangers. Further, we have already
determined, as a matter of law, that Appellant did not subsequently invoke his right to counsel
7
After explaining the requirements of the Code regarding the administration of the warnings, the jury charge then
stated: “If you believe beyond a reasonable doubt that the evidence was obtained in violation of the above-listed
provisions, then in such event, the jury shall disregard any such evidence obtained.”
15
during the interrogation. Accordingly, because there was no factual dispute on the issue of whether
Appellant invoked his right to counsel or whether he waived that right, there was no factual issue
for the jury to resolve, and Appellant was therefore not entitled to a Section 7 instruction on this
issue.8 See Dinkins, 894 S.W.2d at 354. Accordingly, we cannot conclude that he was harmed by
any error in the instruction. See, e.g., Torres, 2016 WL 5404773, at *3.
Appellant’s Issue One is overruled.
VI. THE PRIOR CONVICTION FROM NORTH CAROLINA
In his last three issues, Appellant contends that the trial court erred in using evidence of a
2008 judgment of conviction from North Carolina to enhance his sentence, contending that the
State failed to meet its burden of establishing that: (1) he was the person who was the subject of
the prior conviction, (2) the offense identified in the prior judgment was a qualifying offense under
Texas law for purposes of enhancement, and (3) the prior conviction was final under North
Carolina law.
A. Applicable Law
In Texas, a defendant convicted of a listed sex offense, including sexual assault of a child
and trafficking of a child, shall be punished by imprisonment in the Texas Department of Criminal
Justice for life, if he has “previously been finally convicted” of certain enumerated felony offenses
under Texas law. TEX.PENAL CODE ANN. § 12.42 (c)(1), (2)(A)(i), (B)(ii). The Code also provides
for a mandatory life sentence if the defendant has been previously convicted of an offense under
the laws of another state which contain elements that are substantially similar to the elements of
8
Because Appellant focuses solely on the question of whether the jury was properly instructed on the law as it pertains
to the waiver of his right to counsel in accordance with Section 7 of the Code, we limit our analysis to this aspect of
the jury charge.
16
certain enumerated qualifying prior offenses. See Fisk v. State, 574 S.W.3d 917, 919
(Tex.Crim.App. 2019), citing TEX.PENAL CODE ANN. § 12.42(c)(2)(B)(v).
In order to “establish that a defendant has been convicted of a [qualifying] prior offense,
the State must prove beyond a reasonable doubt that, (1) a prior conviction exists, and (2) the
defendant is linked to that conviction.” Flowers v. State, 220 S.W.3d 919, 921-22 (Tex.Crim.App.
2007); see also Henry v. State, 509 S.W.3d 915, 918 (Tex.Crim.App. 2016). In addition, the State
has the burden of establishing that the defendant’s prior conviction is a “final” judgment, before it
may be used to enhance the defendant’s current conviction. See, e.g., Fletcher v. State, 214 S.W.3d
5, 8 (Tex.Crim.App. 2007); see also Ex parte Pue, 552 S.W.3d 226, 230 (Tex.Crim.App. 2018)
(“It is well established that under Texas law only convictions that are ‘final’ can be used for
enhancement purposes”); Beal v. State, 91 S.W.3d 794, 796 (Tex.Crim.App. 2002) (recognizing
that a court may not use a prior conviction to enhance a defendant’s sentence until it has become
final).
In determining whether the State has met its burden of establishing these requirements, the
fact finder looks at the “totality of the evidence” admitted. See Flowers, 220 S.W.3d at 923; see
also Wood v. State, 486 S.W.3d 583, 589 (Tex.Crim.App. 2016). Although evidence of a certified
copy of a final judgment and sentence is “preferred,” the Court of Criminal Appeals has made it
clear that the State is not limited in its methods of proving the prior conviction, noting that, “[j]ust
as there is more than one way to skin a cat, there is more than one way to prove a prior conviction.”
Flowers, 220 S.W.3d at 922-23. Therefore, the State may use “[a]ny type of evidence,
documentary or testimonial” to meet its burden of proving the prior conviction. Id. at 922.
17
B. The State’s Evidence
Prior to trial, the State filed a notice of enhancement, alleging that Appellant had been
previously convicted on March 13, 2008 in Alamance County, North Carolina, of a second-degree
sexual offense. At Appellant’s punishment hearing, the State’s prosecutor presented evidence that
the El Paso District Attorney’s office had sent a letter to the records division for the superior court
in Alamance County, seeking certified judgments and sentencing information for William
Geoffery Thacker and/or William Geoffrey Thacker, with a date of birth of 10/17/1988. In
response, the court sent the district attorney’s office court documents for an individual named
“William Geoffery Thacker,” sharing that birth date, who had been found guilty and convicted of
one count of a “second degree sexual offense” on or about March 13, 2008, for an offense
committed on February 16, 2007.
Appellant objected to the use of the prior conviction, contending that the State had not met
its burden of establishing that the offense for which he was convicted was substantially similar to
a qualifying Texas offense, and that the State had failed to establish that he was the same individual
who had been convicted in North Carolina. Following two hearings on the issue, the trial court
ultimately made a written finding that North Carolina’s “second degree forcible sexual offense”
which served as the basis for the prior conviction, was “substantially similar” to the Texas offense
of Sexual Assault, as found in Section 22.011 of the Texas Penal Code, and could therefore be
used to enhance Appellant’s sentence.
C. Whether the North Carolina Offense was a Qualifying Offense Under Texas Law
In Issue Five, Appellant contends that the State failed to establish that the offense that was
the subject of the prior conviction--North Carolina’s second degree forcible sexual assault--could
18
be considered a qualifying offense under the Texas law for purposes of enhancing his sentence.
We disagree.
1. The substantial similarity test
In order to use a prior conviction from another state to enhance a defendant’s sentence
under Section 12.42 of the Texas Penal Code, the State must establish that the prior conviction
was for an offense that is “substantially similar” to any one of the qualifying offenses listed in that
Code provision. TEX.PENAL CODE § 12.42(c)(2)(B)(v); see also Fisk, 574 S.W.3d at 919. Until
recent changes in the law, Texas followed a two-prong test for determining whether an out-of-state
offense was substantially similar to one of the qualifying offenses listed in the Texas Code. Fisk,
574 S.W.3d at 920. The first prong of the test required that “the elements being compared . . .
must display a high degree of likeness, but may be less than identical.” Id. The second prong
required “that the elements must be substantially similar with respect to the individual or public
interests protected and the impact of the elements on the seriousness of the offenses.” Id.
However, in a recent decision, the Court of Criminal Appeals disavowed the second prong of that
test, i.e., the “seriousness of the offenses” prong, finding it to be “unworkable and unnecessary.”
Id. at 925. As such, the current test, and the one that we apply, is based solely on a comparison of
the elements of the out-of-state offense with the elements of the Texas offense to be used as a
qualifying offense, to determine whether they have a high degree of likeness. Id. Because the first
prong presents a pure question of law, our review is de novo. See Texas Dep't of Pub. Safety v.
Fowle, 581 S.W.3d 417, 419 (Tex.App.--Houston [14th Dist.] 2019, no pet.).
2. A comparison of the offenses
We previously granted the State’s unopposed motion to take judicial notice of North
Carolina’s statutes relevant to Appellant’s prior conviction, as well as an opinion issued by the
19
North Carolina Court of Appeals in State v. Thacker, 196 N.C. App. 512, 675 S.E.2d 670, 671
(2009), that appears to have affirmed Appellant’s conviction. See generally TEX.R.EVID. 202(a),
(b), (d) (appellate court may take judicial notice of court decisions and rules of another state); see
also Tompkins v. State, 774 S.W.2d 195, 215 (Tex.Crim.App. 1987) (recognizing that an appellate
court may take judicial notice of another state's law for the first time on appeal). We therefore
consider this information in determining the elements of the offense that formed the basis of
Appellant’s prior conviction.
Appellant was convicted in North Carolina of one count of “a second degree forcible sexual
offense” under Section 14-27.5 of the North Carolina General Statutes, now found at Section 14-
27, which provides in part that:
A person is guilty of second degree forcible sexual offense if the person engages in
a sexual act with another person:
(1) By force and against the will of the other person; or
(2) Who has a mental disability or who is mentally incapacitated or physically
helpless, and the person performing the act knows or should reasonably know
that the other person has a mental disability or is mentally incapacitated or
physically helpless.
N.C.GEN.STAT.ANN. § 14-27.27(a)(1)-(2). In turn, Section 14-27.1(4) of the North Carolina
statutes, now found at section 14-27.20, defines a sexual act as: “Cunnilingus, fellatio, analingus,
or anal intercourse,” but excludes vaginal intercourse.9 N.C.GEN.STAT.ANN. § 14-27.20(4).
Although the North Carolina statute sets forth a variety of ways of committing a second
degree forcible sexual offense, the opinion that affirmed Appellant’s conviction reveals that
Appellant was convicted under the first prong of the statute, based on the allegation that he forced
9
The offense of sexual assault by vaginal intercourse is located in another section of the North Carolina General
Statutes. See N.C.GEN.STAT.ANN. § 14-27.22 (known as Second-degree forcible rape).
20
another individual to have anal sex with him against her will. Thacker, 196 N.C. App. at 513, 675
S.E.2d at 671 (noting that the elements of the North Carolina statute under which Appellant was
convicted were: (1) a sexual act, (2) against the will and without the consent of another person,
and (3) using force sufficient to overcome any resistance of the other person). Because we are
aware of the particular portion of the North Carolina statute under which Appellant was convicted,
we consider only that portion of the statute in comparing the elements of the North Carolina offense
to the qualifying offense under Texas law. See Fisk, 574 S.W.3d at 922 (analyzing only that
portion of the statute under which the defendant was previously convicted for purposes of
determining whether it could be used to enhance the defendant’s current conviction under Texas
law).
The trial court here concluded that the North Carolina offense for which Appellant was
convicted was substantially similar to sexual assault under Section 22.011 of the Texas Penal
Code. We agree with this conclusion. Section 22.011 of the Texas Penal Code provides, among
other things, that a person commits the offense of sexual assault if:
(1) the person intentionally or knowingly:
(A) causes the penetration of the anus or sexual organ of another person by any
means, without that person's consent;
(B) causes the penetration of the mouth of another person by the sexual organ
of the actor, without that person's consent; or
(C) causes the sexual organ of another person, without that person's consent, to
contact or penetrate the mouth, anus, or sexual organ of another person,
including the actor.
TEX.PENAL CODE ANN. § 22.011(a)(1). The Texas Penal Code further provides that a sexual
assault is “without the consent” of the other person if, among other things, “the actor compels the
other person to submit or participate by the use of physical force, violence, or coercion.”
TEX.PENAL CODE ANN. § 22.011(b)(1).
21
Therefore, both the North Carolina statute and the Texas statute make it an offense for an
individual to force another person, against her will, to engage in anal or oral sex.10 Accordingly,
we conclude that the elements of the North Carolina statute share a high degree of similarity to
the elements set forth in the Texas sexual assault statute. Appellant’s Issue Five is Overruled.
C. Whether the State’s Evidence Linked Appellant to the Conviction
In Issue Four, Appellant contends that the State failed to present sufficient evidence in the
trial court to establish that he was the “same individual” who was convicted in North Carolina of
the second-degree forcible sexual offense.11
In support of his argument, Appellant correctly points out that a prior judgment of
conviction that contains the defendant’s name, although admissible at trial, is not sufficient,
standing alone, to link the defendant to the prior conviction. See generally Beck v. State, 719
S.W.2d 205, 210 (Tex.Crim.App. 1986) (en banc) (recognizing that a certified copy of a judgment
and sentence contained in a “pen packet,” which bears the defendant’s name, is generally
admissible to prove the existence of a prior conviction, but is normally insufficient standing alone
to prove that the defendant is the person who was previously convicted). Instead, “[i]t is incumbent
on the State to go forward and show by independent evidence that the defendant is the person so
previously convicted.” Id.; see also Cruz v. State, 346 S.W.3d 601, 602-03 (Tex.App.--El Paso
10
Appellant finds it significant that the Texas statute also sets forth other methods of committing sexual assault,
which are not included in the North Carolina statute, such as when a defendant has had sexual intercourse with a child
under the age of 17. However, the fact that the Texas statute includes additional methods of committing the offense
is irrelevant to our analysis. For comparison purposes, a court need only find that one of the statutory methods of
committing an offense is substantially similar to the offense for which the defendant was convicted in the other
jurisdiction. See, e.g., Fisk, 574 S.W.3d at 922.
11
The State asserts that Appellant did not make an adequate objection to preserve this issue for our review, and that
we should therefore decline to address this issue. The record indicates, however, that Appellant did object to the use
of the prior conviction on this basis. At the first punishment hearing, Appellant expressly asserted that “the proof of
[Appellant] being the same individual that was convicted under North Carolina law is insufficient for the Court to
sustain an enhanced punishment,” and at the second punishment hearing, he stated that he was re-urging all of his
prior objections. We therefore conclude that this issue was properly preserved for our review.
22
2009, no pet.) (“Properly authenticated copies of judgments and sentences are admissible at trial,
but the relevance of those records showing a prior conviction is conditioned upon the introduction
of evidence sufficient to support a finding that the defendant on trial is the person who was
previously convicted.”).
The State may link the defendant to a prior conviction in a number of different ways,
including, (1) an admission or stipulation by the defendant, (2) testimony of a person who was
present when the defendant was convicted of the specified crime and can identify the defendant as
that person, or (3) documentary proof (such as a judgment) that contains sufficient information to
establish the existence of a prior conviction and the defendant's identity as the person convicted.
Flowers, 220 S.W.3d at 921-22. As Appellant points out, the most common method of linking a
defendant to a prior conviction is to use expert witness testimony to establish that the defendant’s
fingerprints match that of the person convicted of the prior offense. Beck, 719 S.W.2d at 210; see
also Littles v. State, 726 S.W.2d 26, 28 (Tex.Crim.App. 1984) (en banc). That kind of evidence is
lacking here, and Appellant contends that the State failed to meet its burden of linking him to the
prior conviction.
Although fingerprint evidence may be a preferred method of linking a defendant to a prior
conviction, it is not necessary for the State to produce fingerprint evidence in all cases. Rather,
the State may rely on other “identifiers” in the prior judgment to link the defendant to a prior
conviction, such as the defendant’s date of birth, street address, and driver’s license number. See
e.g., Haas v. State, 494 S.W.3d 819, 824 (Tex.App.--Houston [14th Dist.] 2016, no pet.) (despite
lack of fingerprint evidence, defendant was adequately linked to prior judgment where the
defendant bore the same name and birthdate as the individual in the prior judgment, and had the
same driver’s license number); Billington v. State, No. 08-12-00144-CR, 2014 WL 669555, at *3-
23
4 (Tex.App.--El Paso Feb. 19, 2014, no pet.) (not designated for publication) (despite lack of
fingerprint evidence defendant was adequately linked to prior convictions where State introduced
evidence that Appellant had the same birth date as the person previously convicted, and the pen
packets relating to the prior convictions contained descriptions and photographs that matched
Appellant’s appearance); Goode v. State, No. 02-10-00465-CR, 2011 WL 4502333, at *1
(Tex.App.--Fort Worth Sept. 29, 2011, pet. ref'd) (not designated for publication) (despite lack of
fingerprint evidence, defendant was linked to prior convictions where the defendant had the same
full name and birth date as set forth in the prior convictions, and also had the same county
identification number (CID)--a unique, non-reusable number the jail gives to a person upon jail
booking); see also Dominguez v. State, No. 08-13-00143-CR, 2015 WL 1137742, at *5 (Tex.App.-
-El Paso Mar. 11, 2015, no pet.) (prior convictions had several identifiers independent of
fingerprint evidence, such as the defendant’s date of birth and a street address, which tied the
conviction to the defendant).
Here, the State presented evidence that Appellant’s full name and birth date matched that
of the person listed in the prior conviction. In addition, we find it significant that the prior
conviction originated in the superior court in Alamance County, and that Appellant previously
resided in Burlington, North Carolina, which is partially located in Alamance County.12 We find
it unlikely that there would be more than one “William Geoffrey Thacker” with the same birth
date, residing in or near Alamance County, who could have been the subject of the prior
conviction.13 See Richard v. State, No. 06-13-00068-CR, 2013 WL 6669388 (Tex.App.--
12
We take judicial notice that Burlington, North Carolina is located in both Alamance and Guilford Counties.
13
We also note that the trial court was privy to Appellant’s unredacted confession in which he admitted that he had
been previously convicted of a second-degree sexual assault offense in Alamance County in 2008. Although we do
not consider this to be a judicial admission, it supports a finding that Appellant was in fact the person listed in the
judgment of conviction introduced into evidence by the State.
24
Texarkana Dec. 17, 2013, pet. dism'd, untimely filed) (mem. op., not designated for publication)
(evidence was sufficient to link defendant to prior conviction where documents from prior
conviction included the defendant’s full name and date of birth, and indicated that both offenses
were committed in the same county, making it “unlikely” that the prior offense was committed by
someone else); see also Benton v. State, 336 S.W.3d 355, 359 (Tex.App.--Texarkana 2011, pet.
ref'd) (finding sufficient evidence to link the defendant to the prior conviction, noting that it was
unlikely that another individual by the name of Courtney Antoine Benton was convicted in Harris
County, Texas, within the time frames listed in the prior convictions). Accordingly, we conclude
that the State met its burden of proving beyond a reasonable doubt that Appellant was the same
person who was the subject of the prior conviction.
Appellant’s Issue Four is overruled.
D. Whether the State’s Established that Finality of the Prior Conviction
Finally, in Issue Six, Appellant contends that the State failed to meet its burden of
establishing the finality of the prior North Carolina conviction, and that the trial court therefore
erred in relying on the prior conviction to enhance his sentence. We are compelled to agree.
1. The State’s burden
A trial court may only use a prior conviction that has become “final” to enhance a
defendant’s sentence under Section 12.42 of the Penal Code, and it is the State’s burden to prove
the finality of the prior conviction. See Ex parte Pue, 552 S.W.3d at 230. And when the records
used to establish the defendant’s prior conviction demonstrate that the defendant filed an appeal
from that judgment of conviction, the burden is on the State to “prove the final disposition” of the
defendant's appeal. Fletcher, 214 S.W.3d at 8. Under Texas law, an appeal is not considered final
until a mandate has issued. Id. Therefore, in order to establish the finality of a prior conviction
25
that has been appealed in Texas, the State has the burden of providing evidence that a mandate has
issued before the conviction can be used to enhance the defendant’s sentence. Id.; see also
McKinney v. State, No. 04-17-00495-CR, 2018 WL 2943537, at *3 (Tex.App.--San Antonio June
13, 2018, no pet.) (mem. op., not designated for publication). Further, because the State shoulders
this burden in the trial court, an appellate court is not permitted to take judicial notice of the
mandate for the first time on appeal, even when that appellate court was the court that issued the
mandate. Fletcher, 214 S.W.3d at 8-9 (holding Dallas Court of Appeals committed error by taking
judicial notice of mandate it had issued from the prior conviction). As the Court of Criminal
Appeals has recognized, if an appellate court were permitted to take judicial notice of a mandate
for the first time on appeal, this would deprive the defendant of his “right to rebut the State’s prima
facie showing of finality,” and “circumvent [the State’s] burden at trial.” Id.
2. The State did not establish the finality of the North Carolina appeal
In the present case, the State presented documents in the trial court indicating that
Appellant had filed an appeal from his prior conviction in North Carolina, but admittedly failed to
present any evidence to establish the finality of the appeal. However, the State argues that we
should take judicial notice that under North Carolina law, a defendant’s judgment of conviction
automatically becomes “final” when the North Carolina Court of Appeals issues an opinion
affirming the defendant’s judgment of conviction, and that unlike Texas law, a mandate is not
required before the defendant’s judgment becomes final. The State then argues that because the
North Carolina Court of Appeals issued its opinion in 2009 affirming Appellant’s conviction--with
no subsequent history noted--we should take “judicial notice” that his case became final at that
time.
26
The State’s argument, however, is based on a misinterpretation of North Carolina law. The
question of when a defendant’s conviction becomes “final” under North Carolina law was
expressly addressed by the North Carolina Court of Appeals in State v. Simpson, 176 N.C. App.
719, 627 S.E.2d 271 (2006). In Simpson, the Court of Appeals held that when a defendant appeals
a judgment of conviction, the judgment only becomes final after the time expires for “seeking
discretionary review” of the Court of Appeals opinion. Id.; 176 N.C. App. at 722, 627 S.E.2d at
274. In discussing when that time period expires, the Court cited to Rule 15 of the North Carolina
Rules of Appellate Procedure, which provides that a party has 15 days after the Court of Appeals
issues its “mandate” to the trial tribunal, following its determination in the case, to file a petition
for discretionary review with the North Carolina Supreme Court.14 N.C.R.APP.P. 15(b). The
North Carolina rules further provide that unless the court orders otherwise, the “clerk shall enter
judgment and issue the mandate of the court twenty days after the written opinion of the court has
been filed with the clerk.” N.C.R.APP.P. 32(a). Therefore, as in Texas, it appears that in North
Carolina, a mandate must issue from the appellate court before the clock starts running on a party’s
time period for filing a petition for discretionary review with the North Carolina Supreme Court;
and since a judgment cannot become final until after that time period expires, the issuance of a
mandate is an integral and necessary step for a judgment to become final in North Carolina.
The burden in Texas is straightforward--when there is an indication there was an appeal
from a conviction, a Texas prosecutor is required to present evidence that a mandate has issued
before a Texas conviction can be considered final, and then used to enhance the punishment range.
14
The Court in Simpson also cited to a North Carolina Supreme Court opinion, which held that a defendant’s judgment
of conviction did not become final until after the “availability of appeal” had been exhausted, and after the United
States Supreme Court denied his petition for writ of certiorari. Id., citing to State v. Zuniga, 336 N.C. 508, 513, 444
S.E.2d 443, 446 (1994); see also State v. Coleman, 181 N.C. App. 568, 571, 640 S.E.2d 784, 786 (2007) (a judgment
of conviction is “final” when the availability of appeal has been exhausted, and the time for filing a petition for
certiorari elapsed or any such petition has been denied).
27
Fletcher, 214 S.W.3d at 8. And the Court of Criminal Appeals has held that the question of
whether a prior out-of-state conviction is “final” for purposes of habitual-offender sentence
enhancement is to be determined in accordance with Texas law. See, e.g., Ex parte Pue, 552
S.W.3d at 235 (holding that Texas law applies in determining the finality of an out-of-state
conviction). As hyper-technical as it might appear, the State was required to come forward with
evidence that a mandate issued from the North Carolina Court of Appeals in order to satisfy its
burden of establishing the finality of Appellant’s appeal from his prior conviction. Fletcher, 214
S.W.3d at 9.15
Because the State failed to present any such evidence in the trial court, Appellant is entitled
to a new punishment hearing to determine the finality of his conviction. Id.
Appellant’s Issue Six is sustained.
VII. CONCLUSION
We affirm the portion of the district court's judgment adjudicating Appellant’s guilt, but
reverse the portion of the judgment imposing punishment, and remand this cause for a new
punishment hearing to determine the finality of Appellant’s prior conviction.
JEFF ALLEY, Chief Justice
March 19, 2020
Before Alley, C.J., Rodriguez, and Palafox, JJ.
(Do Not Publish)
15
In Fletcher, the court of appeals had taken judicial notice of its own mandate from the prior conviction and reasoned
that remanding the case “would be useless” and the law does not require a useless thing. The Texas Court of Criminal
Appeals disagreed, noting that the defendant should have the opportunity to rebut any showing of finality. Fletcher,
214 S.W.3d at 8-9.
28