Date: 08-16-2017

Case Style: Damiend Lavar Sullivan v. State of Texas

Case Number: 07-16-00227-CR

Judge: Brian Quinn

Court: Texas Court of Appeals, Seventh District on appeal from the 108th District Court, Potter county

Plaintiff's Attorney: John L. Owen

Defendant's Attorney: Hillary Netardus

Description: Damiend Lavar Sullivan (appellant) appeals, through three issues, his conviction
for possessing a controlled substance. The first involves the denial of his motion to
suppress evidence. The second and third concern the State’s proof of the
enhancement allegations and an inaccurate judgment, respectively. We modify the
judgment and affirm it as modified.
Background
An officer testified that he stopped appellant after witnessing him commit a traffic
violation. The violation consisted of appellant’s failing to stop at the designated stop line
appearing before a crosswalk at an intersection. According to the officer, the front tires
of appellant’s car encroached upon the stop line which resulted in the front end of the
vehicle protruding into the crosswalk. Upon the officer detaining and walking up to
appellant’s car, he smelled a faint odor of marijuana. So too did he see what appeared
to be a partially smoked marijuana cigarette in the vehicle’s ashtray. Appellant admitted
to having smoked the controlled substance earlier. He also disclosed that a pipe lay in
his lap after the officer asked appellant to exit the car. A search of the vehicle ensued,
resulting in the discovery of the contraband for which appellant was prosecuted and
convicted.
Issue One – Motion to Suppress Overruled
Appellant initially contends that the “trial court erred in denying [his] Motion to
Suppress because the objective evidence demonstrates [that the officer] did not have
an objectively reasonable basis for believing appellant committed a traffic offense.” “A
fair reading of the record [allegedly] demonstrates [that the officer] did not possess
sufficient knowledge of the offense he claimed to be investigating when he stopped
appellant’s vehicle.” So, the officer “could not have formed a ‘reasonable’ suspicion that
appellant had been, was, or was about to be engaged in criminal activity.” We overrule
the issue.
The standard of review obligates us to defer to the trial court’s interpretation of
historical fact. Valtierra v. State, 310 S.W.3d 442, 447 (Tex. Crim. App. 2010). That
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means we must defer to its resolution of both factual and credibility issues. Id. And, the
duty to afford such deference results in our affirmance of the trial court’s decision here.
Appellant questions the legitimacy of the original stop. Though he could not
recall the particular section number of the traffic statute violated by appellant, the officer
nevertheless attested appellant failed to stop at the designated point at the intersection.
The designated point was the white line preceding the crosswalk. The front edge of
appellant’s tires touched the line while portions of the car protruded into the crosswalk
north of the line.
Statute provides that a vehicle approaching an intersection “with a stop sign shall
stop . . . before entering the crosswalk on the near side of the intersection.”1 TEX.
TRANSP. CODE ANN. § 544.010(a), (c) (West 2011). “In the absence of a crosswalk, the
operator shall stop at a clearly marked stop line.” Id. at § 544.010(c). Here, evidence
revealed that appellant halted his vehicle slightly on the stop line. That resulted in a
portion of the car protruding into the crosswalk, which in turn afforded a reasonable
officer witnessing the circumstances reasonable suspicion to believe appellant violated
§ 544.010(c) of the Transportation Code. Having such suspicion enabled the officer to
lawfully detain appellant. See Haines v. State, No. 04-16-00410-CR, 2017 Tex. App.
LEXIS 3673, at *4–5 (Tex. App.—San Antonio Apr. 26, 2017, no pet.) (mem. op., not
designated for publication) (holding that, because the evidence showed appellant failed
to stop before entering the crosswalk, the officer had reasonable suspicion to believe
that Haines violated § 544.010(c) of the Transportation Code). It may well be that the
officer did not know the actual section number of the statute violated or that his
1
We do not address whether a stoplight at an intersection falls within the category of a “stop sign”
for no one raised the matter.
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testimony was contradictory at times. Those matters tended to affect his credibility,
which was a matter for the trial court to weigh. Having implicitly accepted the officer’s
version of events revealing a breach of § 544.010(c), the trial court’s resolution of the
matter is entitled to both deference and affirmance.
Issue Two – Enhancement
Appellant next contends that the evidence is insufficient to support the jury’s
finding of true to the enhancement paragraphs. We overrule the issue.
The first subpart of the argument involves appellant’s Wichita County, Texas
conviction back in 2008 for possessing a controlled substance. Though initially
convicted and sentenced in 2006, he was granted probation. Thereafter, the State
successfully moved to revoke that probation, which resulted in the 2008 judgment.
“Because there is no evidence that appellant did not appeal the [2008] judgment . . . ,
the record has not made a prima facie showing that the conviction was final,” according
to appellant. We disagree.
In Davy v. State, Nos. 07-16-00262-CR, 07-16-00263-CR, 2017 Tex. App. LEXIS
4122 (Tex. App.—Amarillo May 5, 2017, pet. filed), we addressed the same contention
raised here. There, we held that (1) a conviction is final on the date sentence is
imposed, absent a notice of appeal; (2) introduction of the prior judgment and sentence
is prima facie proof of a prior conviction; and (3) once the State offers such prima facie
proof of the conviction, the latter is presumed final unless the record shows otherwise or
the defendant presents evidence to the contrary. See id. at *7–8. As appellant
acknowledges in his brief, the record contains the 2008 judgment illustrating appellant’s
sentence after having his probation revoked. That is prima facie evidence of finality per
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Davy. Similarly acknowledged by appellant is the absence of any evidence of an
appeal from that edict. So, sufficient evidence appears of record illustrating the finality
of the 2008 Wichita County conviction.
The second subpart of appellant’s argument deals with sequencing. That is, he
believes the “evidence is . . . insufficient to support the jury’s finding regarding the
sequencing of convictions for purposes of enhancing appellant’s range of punishment to
that of a habitual offender under section 12.42(d).” The argument is based upon the
assumption that a hypothetically correct jury charge would somehow require the jury to
find that a 1998 felony conviction used for enhancement purposes occurred after the
aforementioned 2008 Wichita County felony conviction. Appellant suggests that,
because the 1998 conviction could not occur after the 2008 conviction, the jury’s finding
that both allegations were true lacked evidentiary support. We again disagree
Statute provides that:
if it is shown on the trial of a felony offense . . . that the defendant has
previously 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 the
defendant shall 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.
TEX. PENAL CODE ANN. § 12.42(d) (West Supp. 2016). Furthermore, a hypothetically
correct punishment charge, see Young v. State, 14 S.W.3d 748, 750 (Tex. Crim. App.
2000) (requiring that the sufficiency of the evidence underlying a finding of true to an
enhancement allegation to be measured against a hypothetically correct jury charge),
would aver that the oldest conviction alleged for enhancement purposes was final
before the more recent one. Derichsweiler v. State, 359 S.W.3d 342, 350 (Tex. App.—
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Fort Worth 2012, pet. ref’d) (wherein the indictment alleged that a 1998 conviction
occurred after one finalized in 2003 and stating that “[t]he hypothetically correct
punishment charge would have alleged that the 1998 conviction was final before
Derichsweiler committed the 2003 offense”).
So, in determining whether the elements of § 12.42(d) were established here, the
hypothetical punishment charge would have averred that the 1998 conviction became
final before the 2008 conviction, not vice versa as suggested by appellant. And, in so
reading the hypothetically correct charge on punishment, we cannot but find sufficient
evidence appearing of record to prove the elements of § 12.42(d) beyond reasonable
doubt.
Issue Three – Inaccurate Judgment
In his final issue, appellant contends that (1) the final judgment inaccurately
reflects that he pled “guilty” to the indictment and (2) the edict should be reformed to
correct the mistake. The State agrees. Accordingly, we sustain the issue and will
reform the judgment to accurately reflect the record. See Ramirez v. State, 336 S.W.3d
846, 852 (Tex. App.—Amarillo 2011, pet. ref’d) (stating that an appellate court “has the
power to modify the judgment of the court below to make the record speak the truth
when we have the necessary information to do so”).

Outcome: The judgment of the trial court is reformed to express that appellant pled “Not
Guilty” to the “Plea to the Offense.” As reformed, the judgment is affirmed.

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Defendant's Experts:

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