Elliot Ventura v. the State of Texas

In The
Court of Appeals
Seventh District of Texas at Amarillo
No. 07-22-00152-CR
ELLIOT VENTURA, APPELLANT
V.
THE STATE OF TEXAS, APPELLEE
On Appeal from the 100th District Court
Carson County, Texas
Trial Court No. 7100; Honorable Stuart Messer, Presiding
August 29, 2023
MEMORANDUM OPINION
Before QUINN, C.J., and DOSS and YARBROUGH, JJ.
A jury convicted Appellant Elliot Ventura of evading arrest in a motor vehicle.1 At
the punishment phase of trial, Appellant pled “true” to two prior felony convictions; the jury
assessed punishment at 30 years of confinement in the penitentiary. On appeal,
Appellant argues the record affirmatively shows that one of his prior convictions is not
1 See TEX. PENAL CODE ANN. § 38.04.
final under Texas law because he had received probation which has not been revoked.
Agreeing with Appellant, we reverse and remand the case for a new trial on punishment.
Background
An indictment charged that on May 3, 2021, Appellant committed the offense of
evading arrest or detention in a motor vehicle. Subsequently, in a notice to seek
enhanced punishment, the State alleged Appellant had two prior final felony convictions
in Wisconsin, what we will refer to as the “-404” case2 and the “-050” case.3 A jury
convicted Appellant of the charged offense and found he used or exhibited a deadly
weapon while committing the offense.
At punishment, the State introduced enhancement evidence of the Wisconsin
convictions in the -404 and -050 cases. Appellant pleaded true to both enhancement
offenses. The jury found both convictions true and assessed punishment at confinement
in prison for a term of thirty years. Thereafter, Appellant brought this appeal.
Analysis
In his sole issue, Appellant argues the prior conviction in the -050 case was a
judgment for probation and thus not a “final conviction” under the enhancement statute.
2 That is, Cause 2009CF000404: Wisconsin v. Ventura, in Circuit Court Branch #5 of Kenosha Co.,
Wis. Appellant was convicted for manufacture/delivery of cocaine of more than 5–15 grams, and sentenced
to five years in the Wisconsin Department of Corrections. It appears Appellant was confined in prison for
two-and-a-half years before he was released on parole for three-and-a-half years. This sentence was said
to run “consecutive” to Cause 2009CF372, wherein Appellant was found guilty of battery/threat to a witness.
The State did not seek to enhance based upon the 372 matter. Likewise, the State did not seek to enhance
Appellant’s sentence based upon his guilt in Cause 2013CM000646, for criminal trespass to a dwelling.
3 That is, Cause 2012CF00050: Wisconsin v. Ventura, in Circuit Court Branch #6 of Kenosha Co.,
Wis. Appellant was convicted of possession of THC (2nd offense). Appellant was placed on probation
“concurrent to” the -404 case.
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This is relevant because under section 12.42(d) of the Texas Penal Code, the Appellant
would be punished by imprisonment in the Texas Department of Criminal Justice for life,
or for any term of not more than 99 years or less than 25 years, if the evidence shows
Appellant previously had been “finally convicted of two felony offenses,” and the second
previous felony conviction is for an offense that occurred subsequent to the first previous
conviction having become final, on conviction. See TEX. PENAL CODE ANN. § 12.42(d).
Only convictions that are “final” can be used for enhancement purposes. Ex parte
Murchison, 560 S.W.2d 654, 656 (Tex. Crim. App. 1978). A probated sentence is not
“final” for enhancement purposes unless the probation has been revoked. Ex parte Pue,
552 S.W.3d 226, 230 (Tex. Crim. App. 2018); Ex parte Langley, 833 S.W.2d 141, 143
(Tex. Crim. App. 1992); Ex Parte Murchison, 560 S.W.2d at 656. We determine whether
Appellant’s conviction was “final” pursuant to Texas law, not the law of Wisconsin. See
Pue, 552 S.W.3d at 233.
It is ordinarily the State’s burden to prove Appellant’s convictions are final. Id. at
231. This burden is satisfied when, as here, the Appellant pleads “true” to the
enhancement paragraph. Harrison v. State, 950 S.W.2d 419, 421 (Tex. App.—Houston
[1st Dist.] 1997, writ ref’d) (citing Harvey v. State, 611 S.W.2d 108, 111 (Tex. Crim. App.
1981)). This does not end our analysis, however. Despite a plea of true, an Appellant
may challenge the finality of an offense used for enhancement if the record “affirmatively
reflects” that such offense was not, in fact, final. Mikel v. State, 167 S.W.3d 556, 559–60
(Tex. App.—Houston [14th Dist.] 2005, no pet.). See also Ex parte Rich, 194 S.W.3d
508, 513 (Tex. Crim. App. 2006); Sanders v. State, 785 S.W.2d 445, 448 (Tex. App.—
San Antonio 1990, no pet.).
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Appellant does not challenge consideration of his conviction in the -404 case for
enhancement purposes. However, he contends the conviction in -050 is not final because
he was put on probation, and it has not been revoked. State’s Exhibit 11 includes a
document from Wisconsin purporting to be a “Judgment of Conviction.” It indicates
Appellant received probation in the -050 case. A “comments” section states the probation
is “concurrent to” the -404 case.
In 2013, a “Revocation Order and Warrant” was signed by the Wisconsin
Department of Corrections “secretary’s designee.” It indicates Appellant’s probation was
revoked for the -404 case. The State reasons Appellant’s probation in the -050 case must
have been revoked, as well, given the earlier order’s reference to the two sentences being
concurrent. But that is not what the record states.
The revocation order only references the -404 case, not -050. A box is checked
beside the order’s language, “Not all Cases Revoked.” The order also makes no mention
of a jail time credit for the -050 case, which would have been required under Wisconsin
law. See State v. Lovell, 2018 WI App 8, 379 Wis. 2d 766, 909 N.W.2d 209, 2017 Wisc.
App. LEXIS 1048, at *11 (citing WIS. STAT. § 973.155(2) (sentence credit determination
must be included in the revocation order)).
The State relies on the Second Court of Appeals’ decision in Lugo v. State for its
argument that Appellant fails to show the record “affirmatively reflects” the offense in the
-050 case was not final. 299 S.W.3d 445 (Tex. App.—Fort Worth 2009, pet. ref’d). We
find Lugo distinguishable by its facts. In that case, after pleading true, Lugo argued on
appeal his conviction for DWI was not a felony. Rejecting his argument, the court of
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appeals relied in part on Lugo’s “pen packet,” which described the DWI offense as “driving
while intoxicated and felony repetition,” along with the range of punishment being
consistent with a felony. Lugo, 299 S.W.3d at 455–56. In this case, the record shows
without dispute that Appellant received probation in the -050 case. Moreover, despite
revocation of probation in -404, the revocation order’s omission of -050 and statement
that “Not all Cases Revoked” affirmatively shows Appellant’s probation in -050 had not
been revoked. Based on the record before us, Appellant’s conviction in the cause number
-050 was not final for enhancement purposes and could not, therefore, be used for that
purpose. We sustain Appellant’s issue.
Conclusion
We affirm Appellant’s conviction, but reverse that portion of the judgment
assessing punishment and remand for a new punishment hearing. See TEX. CODE CRIM.
PROC. ANN. art. 44.29(b).
Lawrence M. Doss
Justice
Do not publish.
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