Burns Tilton Boyd v. State

In The Court of Appeals Ninth District of Texas at Beaumont ____________________ NO. 09-03-116 CR ____________________ BURNS TILTON BOYD, Appellant V. THE STATE OF TEXAS, Appellee On Appeal from the 1-A District Court Tyler County, Texas Trial Cause No. 9540 MEMORANDUM OPINION A jury convicted Burns Tilton Boyd of burglary of a habitation. The jury further found the allegations of at least two of the enhancement paragraphs to be true and assessed punishment at seventy years' confinement in the Texas Department of Criminal Justice, Institutional Division. Boyd appeals claiming there was error in the charge on punishment. Appellate counsel contends the jury was instructed in such a way as to allow Boyd to be sentenced contrary to Texas law, as a habitual felony offender, if the jury found enhancement paragraphs two and three to be true, because they are not sequential. The trial court instructed the jury: "If you find the allegation in Enhancement Paragraph Two and Enhancement Paragraph Three of the indictment true, you will assess punishment of the Defendant at confinement in the institutional division of the Texas Department of Criminal Justice for not less than 25 years nor more than 99 years of [sic] life. . ." The record reflects that the conviction alleged in Enhancement Paragraph Two is not subsequent to the conviction alleged in Enhancement Paragraph Three because the conviction alleged in Enhancement Paragraph Three did not become final until March 6, 1974, the same date as the conviction alleged in Enhancement Paragraph Two. Accordingly, the trial court did err in instructing the jury. (1) However, because no objection was raised the harm must be egregious for the error to be reversible. See Shavers v. State, 985 S.W.2d 284, 291 (Tex. App.--Beaumont 1999, pet. ref'd) (citing Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1984) (op. on reh'g)). We have held the error is reversible only if the record establishes the defendant did not receive a fair and impartial trial. See Cucancic v. State, 997 S.W.2d 396, 398 (Tex. App.--Beaumont 1999, pet. ref'd) (citing Ewing v. State, 971 S.W.2d 204 (Tex. App.--Beaumont 1998, pet. ref'd)). In accordance with section 12.42 of the Texas Penal Code, the State was only required to prove the defendant had previously been convicted of two felonies, and the first became final before the second occurred, to authorize sentencing Boyd as a habitual offender. See Tex. Pen. Code Ann. §12.42 (Vernon Supp. 2004). The conviction alleged in Enhancement Paragraph One is clearly subsequent to either the conviction alleged in Enhancement Paragraph Two or Three having become final. The charge therefore permits the jury to find the proper sequence of the prior convictions to meet the requirements of section 12.42 in assessing punishment. We do not find fundamental error in the charge. See Howell v. State, 795 S.W.2d 27, 29 (Tex. App.--El Paso 1990, pet. ref'd). Boyd's points of error are overruled. The judgment of the trial court is AFFIRMED. PER CURIAM Submitted on February 6, 2004 Opinion Delivered February 18, 2004 Do not publish Before McKeithen, C.J., Burgess, and Gaultney, JJ. 1. The trial court further erred in instructing the jury it might assess a fine in any amount not to exceed $10,000.