Opinion
No. 05-09-01225-CR.
Opinion Filed January 31, 2011. DO NOT PUBLISH TEX. R. APP. P. 47
On Appeal from the 292nd Judicial District Court, Dallas County, Texas, Trial Court Cause No. F08-58640-QV.
Before Justices FITZGERALD, MURPHY, and FILLMORE.
MEMORANDUM OPINION
Michael Edward Childs appeals his conviction for unauthorized use of a motor vehicle and enhanced punishment of twenty years. In three issues, Childs challenges the sufficiency of the evidence for his conviction and subsequent enhancement of his sentence. We affirm the trial court's judgment.
Background
This case begins with the theft of a burgundy pickup truck and an alleged burglary of a building. John Vasquez, owner of the truck, testified he was leaving for work one morning when he could not locate his vehicle. He noticed broken glass in the location where he usually parked his truck, but he walked around his apartment building's parking lot to confirm he had not parked it elsewhere. Unable to find his truck, Vasquez called the police and reported it stolen. Approximately five hours later, and in response to a "suspicious person" report based on an alleged burglary of a building, Dallas police were searching for three individuals in a burgundy truck with the same license plate as Vasquez's. A police officer testified that approximately twenty minutes after receiving the report of a burglary, he located the truck exiting a scrap yard. The officer followed the truck into a parking lot and effected a stop, instructing the occupants to remain inside the vehicle. The two passengers attempted to flee but were apprehended. The driver, later identified as Childs, remained in the vehicle, where he was arrested. The arresting officer testified there was no key to the truck, the steering column had been taken apart, and wires were hanging from the column. From experience, these conditions indicated to the officer the vehicle had been stolen. The officer also testified there was damage to the door and windows, but he could not confirm which specific door or window; there were no pictures recording the damage. Vasquez testified the truck was in "mint condition" before the truck was stolen, but when he recovered the truck, the steering column was "busted out" with wires hanging and the passenger window was broken with glass inside the truck cab. Vasquez also testified the passenger door appeared as though it had been pried open and there were dents on both the passenger and driver doors. Vasquez confirmed he did not know Childs and had not given Childs consent to operate the truck. Childs did not testify at the guilt-innocence phase of the trial. The jury found Childs guilty of unauthorized use of a motor vehicle. For the punishment phase, Childs elected to proceed without a jury and pled "true" to two enhancement paragraphs for previous felony convictions that were included in the indictment for unauthorized use of a motor vehicle. The trial judge found both enhancement allegations true and sentenced Childs to twenty years' confinement.Standard
Childs challenges the legal and factual sufficiency of the evidence for his conviction and the enhancement of his sentence. The Texas Court of Criminal Appeals now requires us to analyze both legal and factual sufficiency challenges under the Jackson v. Virginia standard. See Brooks v. State, 323 S.W.3d 893, 895 (Tex. Crim. App. 2010) (plurality op.). Under that standard, we examine all the evidence in the light most favorable to the verdict and determine whether a rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979); Brooks, 323 S.W.3d at 894-95. We are required to defer to the jury's credibility and weight determinations, because the jury is the sole judge of the witnesses' credibility and the weight to be given their testimony. See Jackson, 443 U.S. at 326. The State was required to prove beyond a reasonable doubt that Childs intentionally or knowingly operated another's motor-propelled vehicle, a truck, without the effective consent of Vasquez, the owner. See Tex. Penal Code Ann. § 31.07(a) (West 2003). To enhance his conviction to a second-degree felony, the State was required to prove beyond a reasonable doubt that Childs "has previously been finally convicted of two felonies, and the second previous felony conviction is for an offense that occurred subsequent to the first previous conviction having become final. . . ." Tex. Penal Code Ann. § 12.42(a)(2) (West Supp. 2010); see also Campbell v. State, 49 S.W.3d 874, 876 (Tex. Crim. App. 2001) (section 12.42(a)(2) requires proof prior convictions occurred sequentially); Lugo v. State, 299 S.W.3d 445, 455 (Tex. App.-Fort Worth 2009, pet. ref'd) ("Before the State may use enhancement paragraphs to increase a defendant's range of punishment, it must prove that they are true beyond a reasonable doubt.").Discussion Sufficiency of the Evidence for Conviction
Childs argues the evidence is insufficient for his conviction of unauthorized operation of a motor vehicle because the State failed to prove that he "knew" the operation of the vehicle was without Vasquez's effective consent. Specifically, Childs asserts there was insufficient evidence of his knowledge of the lack of consent because: (1) he made no inculpatory statements at the time of his arrest; (2) he, as the driver of the truck, did not flee when police arrived, while the two passengers did; (3) the damage to the steering column did not necessarily support the conclusion the vehicle was being operated without Vasquez's consent; (4) the testifying police officers were unsure about the nature and extent of damage to the truck, and no pictures had been taken to preserve the extent of damage; and (5) there were no witnesses who identified Childs as one of the men involved in the burglary that precipitated the police search for the vehicle. The State may meet its burden of proving Childs's knowledge of lack of consent through circumstantial evidence. See McQueen v. State, 781 S.W.2d 600, 604 (Tex. Crim. App. 1989); Coleman v. State, 802 S.W.2d 394, 395 (Tex. App.-Dallas 1990, no pet.). It is unnecessary for every fact to point directly and independently to Childs's guilt; it is enough if the conclusion is warranted by the combined and cumulative force of all the incriminating circumstances. See Johnson v. State, 871 S.W.2d 183, 186 (Tex. Crim. App. 1993) (citing Russell v. State, 665 S.W.2d 771, 776 (Tex. Crim. App. 1983)). Because Vasquez testified he did not give Childs consent to operate the truck, the evidence is sufficient to prove Childs knew he did not have the owner's consent. See McQueen, 781 S.W.2d at 604-05 (owner's testimony he had not given consent to operate motorcycle sufficient proof of appellant's knowledge). Additionally, at the time of his arrest, Childs was driving the specific truck Vasquez reported stolen; Vasquez also testified as to the condition of the truck, both before he reported it stolen and after he recovered it from police. The jury was free to disregard the defense theory that damage to the steering column possibly resulted from the owner allegedly losing his key, particularly in light of the other evidence of broken glass in the parking lot, the broken window and glass inside the truck, the pried passenger door, and Vasquez's reporting the truck stolen. Examining the evidence in the light most favorable to the verdict, we conclude the evidence was sufficient for the jury to find Childs knew he was operating the truck without Vasquez's effective consent. See Coleman, 802 S.W.2d at 395 (obvious condition of car, such as driver's broken window, shattered glass on floorboards, appellant's lack of key, and ignition wires ripped and hanging from steering column, was sufficient to support finding appellant knew he lacked owner's effective consent). Viewing the evidence in the light most favorable to the verdict, we conclude any reasonable fact finder could have found the essential elements of the offense beyond a reasonable doubt. We overrule Childs's sufficiency issues as to his conviction.Sufficiency of the Evidence for Enhancement
Childs also challenges the legal sufficiency of the evidence to enhance his punishment to a second-degree felony. See Tex. Penal Code Ann. § 12.42(a)(2). Specifically, Childs argues the evidence was insufficient to establish the second alleged offense was committed after the first alleged conviction became final. Childs pled "true" to the enhancement allegations as contained in his indictment, which read as follows:And it is further presented to said Court that prior to the commission of the aforesaid offense set forth in the first paragraph above, the said defendant was convicted of a felony offense of POSSESSION OF A CONTROLLED SUBSTANCE, on the 26TH day of SEPTEMBER, 1986, A.D., in Case Number F8684097 on the docket of 282ND JUDICIAL DISTRICT COURT, of DALLAS County, Texas under the name of MIICHAEL [sic] EDWARDS CHILDS and said conviction was a final conviction,
And it is further presented to said Court that prior to the commission of the aforesaid offense set forth in the first paragraph above, the said defendant was convicted of a felony offense of ROBBERY, on the 3RD day of FEBRUARY, 1983, A.D., in Case Number F8397511 on the docket of CRIMINAL DISTRICT COURT NO. 1, of DALLAS County, Texas under the name of MICHAEL EDWARDS CHILDS and said conviction was a final conviction[.]During the punishment phase, the State introduced penitentiary packets, although the portions admitted into evidence did not include documentation or evidence as to the two offenses described in the indictment. The record also shows the trial court advised Childs specifically regarding the effect of having the enhancement paragraphs found true:
THE COURT: . . . [Y]ou have been indicted with two enhancement paragraphs with two sequential trips to the penitentiary.
So if the State proves you guilty of either of the offenses charged and they can prove both of the enhancement paragraphs in each of the two indictments, the applicable punishment range is confinement in the penitentiary for not less than 2 years, nor more than 20 years, and a fine of up to $10,000. . . . You understand that, sir?
CHILDS: Yes.Again, in response to a question from Childs, the trial court explained the enhancement provisions:
THE COURT: You understand, if the State can prove up these two prior convictions, then your penalty range changes from that of a state jail felony to a second-degree felony, 2 to 20. That would be the penalty range. Do you understand that?
CHILDS: Yes, sir.The trial court then described in detail various enhancements under the penal code and again asked Childs if he understood. Childs responded, "Okay. So-yeah. So I'm understanding you right, that it doesn't have-it doesn't have to be state jail felonies, previous convictions, to be enhanced?" The trial court told Childs he was correct, adding "[a]ny felony convictions can be used to enhance a state jail, if it's commission, conviction, commission, conviction." After admonishing Childs on the sequentiality requirement for enhancement of his punishment to a second-degree felony, Childs pled true to both enhancement paragraphs:
THE COURT: . . . Now, Mr. Childs, on the first enhancement paragraph, that's the one that alleges the prior conviction for possession of a controlled substance, how do you plead to that, true or not true?
CHILDS: True.
THE COURT: All right. And the second enhancement paragraph that alleges you have been previously convicted of the offense of robbery, how do you plead to that, true or not true?
. . .
CHILDS: True.The State had the burden of proving beyond a reasonable doubt Childs committed two previous felonies, the second of which was committed after his first previous felony conviction became final. Jordan v. State, 256 S.W.3d 286, 291 (Tex. Crim. App. 2008). Here, however, Childs pled "true" to the enhancement allegations as contained in his indictment. "[P]leas to enhancement allegations are different from pleas to the guilt-innocence phase of trial because a plea of `true' does constitute evidence and sufficient proof to support the enhancement allegation." Wilson v. State, 671 S.W.2d 524, 526 (Tex. Crim. App. 1984) (emphasis in original). As a result, the general rule is that a plea of "true" satisfies the State's burden of proof for enhancement allegations. Id. It is also well-settled law that "an accused, having entered a plea of `true' to an enhancement paragraph of the indictment, cannot be heard to complain that the evidence is insufficient to support same. In fact, if an indictment contains two enhancement allegations and the accused pleads `true' to the allegations concerning the prior convictions, the punishment is absolutely fixed by law. . . ." Harvey v. State, 611 S.W.2d 108, 111 (Tex. Crim. App. 1981) (citing Tex. Penal Code Ann. § 12.42(d)). Despite the broad language in Harvey prohibiting challenges to the legal sufficiency of enhancement evidence when a defendant pleads "true" to the enhancement paragraphs, Childs nevertheless asserts that because the indictment contained no specific allegations regarding the sequence of his previous felony convictions, his plea of "true" did not judicially admit this statutorily-required fact. Childs primarily relies on Jordan v. State to argue the State failed in its burden of proving sequentiality beyond a reasonable doubt, making his punishment improperly enhanced. In Jordan, however, the defendant did not plead "true" to his enhancement allegations. Jordan, 256 S.W.3d at 288. Here, the trial court explained the statutory requirement of sequentiality to Childs, and Childs repeatedly indicated he understood the effect of the enhancement allegations and then pled "true." To the extent the indictment does not contain specific allegations regarding the sequence of Childs's prior felony convictions, specificity is not required. See Jingles v. State, 752 S.W.2d 126, 129 (Tex. App.-Houston [14th Dist.] 1987, pet. ref'd) (concluding section 12.42(d) does not require State to allege sequentiality in indictment); Fitzgerald v. State, 722 S.W.2d 817, 822 (Tex. App.-Tyler 1987) (indictment without allegations of sequentiality not defective), aff'd, 782 S.W.2d 876 (Tex. Crim. App. 1990). Thus, courts have concluded a defendant's plea of "true" relieves the State of its burden of proof and forfeits the defendant's right to challenge the evidentiary sufficiency supporting enhancement even when the enhancement paragraph contained no allegations as to that statutory requirement. One exception exists: when "the record affirmatively reflects" the enhancement is itself improper. Ex parte Rich, 194 S.W.3d 508, 513-14 (Tex. Crim. App. 2006). Under this exception, the record must affirmatively show the commission of Child's second prior conviction of possession of a controlled substance occurred before his first prior conviction of robbery became final. See Lugo, 299 S.W.3d at 455-56; see also Williams v. State, 309 S.W.3d 124, 131 (Tex. App.-Texarkana 2010, pet. ref'd) (appellant permitted to challenge enhancement because record affirmatively reflected prior conviction not final and State offered no contrary proof). Childs has failed to point to any evidence affirmatively showing the enhancement is improper, instead arguing the record fails to show the sequence of convictions beyond a reasonable doubt. Because Childs has not shown the exception under Ex parte Rich applies to him, we must follow Harvey and conclude Childs forfeited his right to contest the evidentiary sufficiency of his sentence by pleading "true" to the enhancement paragraphs in the indictment, especially considering the trial court's extensive explanation of enhanced punishments. See Harvey, 611 S.W.2d at 111; see also Harris v. State, No. 10-05-00227-CR, 2006 WL 3438523, at *2 (Tex. App.-Waco Nov. 29, 2006, no pet.) (mem. op., not designated for publication) (concluding appellant waived enhancement-sufficiency challenge by pleading "true" to prior felony convictions and stipulating to admission of penitentiary packets even though packets did not show sequentiality); see also Humble v. State, No. 13-05-214-CR, 2006 WL 786901, at *2 (Tex. App.-Corpus Christi Feb. 9, 2006, no pet.) (mem. op., not designated for publication) ("This plea, coupled with the judicial admonishments establishing the plea's veracity, is sufficient to serve as evidence of the enhancement offense. The lack of additional specificity about the prior offense by Humble and the absence of additional evidence by the State does not alter the effect of Humble's plea in providing sufficient evidence.") (internal citations removed).