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Date: 03-04-2020

Case Style:

David Phelps v. The State of Texas

Case Number: 05-18-00977-CR

Judge: David Evans

Court: Court of Appeals Fifth District of Texas at Dallas

Plaintiff's Attorney: Rebecca Ott Labardini
John Creuzot

Defendant's Attorney:


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On May 31, 2017 at 4:46 a.m., video surveillance in the parking garage of the Slate at Cole
apartments recorded appellant and another man entering the garage on bicycles and “door
checking” the cars until they found an unlocked vehicle. The video showed the men removing
golf clubs and other items from the trunk of a car. Shortly after this incident, Dallas police were


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dispatched for a suspicious person or burglary of a motor vehicle at the apartment complex. Police
detained two suspects, one of whom was appellant who was carrying golf clubs. Phelps was
arrested for burglary of a vehicle.
Appellant’s indictment included references to two prior burglary of a vehicle convictions:
That DAVID PHELPS, hereinafter called Defendant, on or about the 31st day of May, 2017 in the County of Dallas, State of Texas, did break into and enter a vehicle, without the effective consent of MCKINLEY TOPP, the owner thereof, with the intent to commit theft, And further, prior to the commission of the aforesaid offense alleged in the first paragraph above, the said defendant had been at least twice previously duly, legally and finally convicted of the following burglary of vehicle offenses: I. The State of Texas v. DAVID GARCIA PHELPS, in the COUNTY CRIMINAL COURT NO.4 in Cause Number MA1561961, in Dallas County, Texas, on or about the 24TH day of NOVEMBER, A.D. 2015. II. The State of Texas v. DAVID GARCIA PHELPS, in the 282ND JUDICIAL DISTRICT COURT in Cause Number F-9031029, in Dallas County, Texas, on or about the 24TH day of APRIL, A.D. 1991. The indictment also included two enhancement paragraphs:
And it is further presented to said Court that prior to the commission of the offense or offenses set out above, the defendant was finally convicted of the felony offense of BURGLARY HABITATION, in the 282ND JUDICIAL DISTRICT COURT of DALLAS County, Texas, in Cause Number F-9005078, on the 24TH day of APRIL, A.D. 1991, And that prior to the commission of the offense or offenses for which the defendant was convicted as set out above, the defendant was finally convicted of the felony offense of ROBBERY, in the 194TH JUDICIAL DISTRICT COURT of DALLAS County, Texas, in Cause Number F-8584736, on the 12TH day of APRIL, A.D. 1985, Appellant originally pled not guilty to the charge. Following voir dire, however, appellant
decided to plead guilty and have the jury assess punishment. The trial court did not admonish
appellant concerning the range of punishment prior to accepting appellant’s guilty plea. Appellant
entered a plea of true as to each of the enhancement paragraphs. They jury found appellant guilty


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and sentenced appellant to fifteen years’ confinement in the Institutional Division of the Texas
Department of Criminal Justice.
ANALYSIS
A. Failure to Admonish In the first issue, appellant argues the trial court erred when it failed to admonish appellant about the punishment range. 1. Standard of review Article 26.13 of the Texas Code of Criminal Procedure provides before a court accepts a
guilty plea, it must admonish a defendant about the range of punishment attached to the offense.
See TEX. CODE CRIM. PROC. § 26.13(a)(1). A trial court’s failure to give a proper admonition
under Article 26.13 is subject to a Rule 44.2(b) harm analysis. See Aguirre-Mata v. State, 992
S.W.2d 495, 499 (Tex. 1999) (“[A]ppellant claimed a violation of article 26.13(a)(1). Therefore,
consistent with our reasoning and holding in Carranza, we conclude the error was subject to a
harm analysis under Rule 44.2(b) because it is statutory, not constitutional.”). Pursuant to Rule
44.2(b), any error, defect, irregularity, or variance must be disregarded unless it affected the
defendant’s substantial rights. See TEX. R. APP. P. 44.2(b). A defendant’s substantial rights are
affected when the error had a substantial and injurious effect or influence in determining the jury’s
verdict. Anderson v. State, 182 S.W.3d 914, 919 (Tex. 2006). In applying Rule 44.2(b), we
consider the record as a whole to determine whether the error affected the appellant’s substantial
rights. See Valdez v. State, 326 S.W.3d 348, 351 (Tex. App.—Fort Worth 2010, no pet.). 2. Analysis Appellant argues his substantial rights were affected because the trial court failed to admonish him concerning his specific range of punishment. As appellant concedes, however, a
defendant is usually deemed to have notice of the punishment range if the range of punishment is


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explained during voir dire and defendant is present. Id. In this case, appellant was present in the
courtroom when the trial court advised the potential jurors about the range of punishment in this
case:
And this offense is in a way a unique offense. As it is filed and returned in the grand jury indictment, it is a felony offense, a state jail felony offense, range of punishment 180 days up to two years confinement in a state jail facility. Now, as I said, that’s if the State proves the two additional allegations of burglary of a vehicle. Now, if they do not to your satisfaction, this offense then becomes a Class A misdemeanor offense, where the range of punishment is up to a year in the county jail and an optional fine not to exceed $4,000. Now, this may be a little bit confusing, but under certain circumstances, this offense could be classified as a second-degree felony, where the punishment range is a minimum two-years confinement in the Institutional Division of the Texas Department of Criminal Justice or to a maximum of 20 years, in that facility, which is the same as penitentiary or prison. And an optional fine not to exceed $10,000. Okay. So potentially starting out, we have three ranges of punishment. It starts out as a state jail felony, 180 days to two years in a state jail facility, and an optional fine not to exceed $10,000. If the jury does not find for the two prior allegations of burglary of a habitation, it is a misdemeanor offense up to one year in county jail. Under additional circumstances, it could be a second-degree felony, two to 20 years, and an optional fine not to exceed $10,000. Okay. In addition, during voir dire both the prosecution and the defense attorneys noted to the potential
jurors the sentencing range went up to twenty years.1 Finally, the jury charge advised appellant of
the punishment range of two to twenty years. This jury charge was read into the record—in
appellant’s presence—after the court accepted his plea but before the jury found him guilty and
before any evidence of punishment was offered. See Luckett v. State, 394 S.W.3d 577, 581 (Tex.
App.—Dallas 2012, no pet.) (despite trial court’s failure to admonish as to the range of punishment
if enhancements were proven, appellant knew of range of punishment because State served a
Notice of State’s Intention to Seek Enhancement of the Range of Punishment, notice was read into
1 During voir dire, the prosecution mentioned the sentencing range going “all the way over here to twenty years” and defense counsel noted the “maximum being 20 years” in several interactions with prospective jurors.


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record, and appellant failed to “object to the surprise of an enhanced range of punishment.”). Here,
appellant did not object at any point to the surprise of an enhanced range of punishment.2 For all
of these reasons, we conclude the trial court’s failure to admonish, although erroneous, constituted
harmless error. We overrule appellant’s first issue. B. Jury Charge Error In the second issue, appellant argues the punishment charge contained error because the
trial court failed to instruct the jury to find appellant’s second previous felony conviction used for
enhancement was committed after his first previous felony conviction became final. 1. Standard of Review When we review claims of jury charge error, we first decide whether there was error in the
charge. Ferguson v. State, 335 S.W.3d 676, 684 (Tex. App.—Houston [14th Dist.] 2011, no pet.).
If there was error and appellant objected to the error at trial, then only “some harm” is necessary
to reverse the trial court’s judgment. See Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App.
1985) (op. on reh’g). If, however, the appellant failed to object at trial—as here—then the
appellant will obtain a reversal “only if the error is so egregious and created such harm that he ‘has
not had a fair and impartial trial’—in short ‘egregious harm.’” Id. Egregious harm is the type and
degree of harm that affects the very basis of the case, deprives the defendant of a valuable right,
or vitally affects a defense theory. Allen v. State, 253 S.W.3d 260, 264 (Tex. Crim. App. 2008).
In making an egregious harm determination, “the actual degree of harm must be assayed in light
of the entire jury charge, the state of the evidence, including the contested issues and weight of
2 During the punishment hearing, defense counsel again referenced the range of punishment twice during his closing: (1) “He is going to prison, we know that. You don’t have an option in that jury charge. It says how many years and what find. Okay. But you do get to decide the full range of punishment. That range of punishment is two years minimum to 20 years maximum.” (2) “That full range of punishment is two to 20.”


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probative evidence, the argument of counsel and any other relevant information [revealed] by the
record of the trial as a whole.” Trejo v. State, 280 S.W.3d 258, 261 (Tex. Crim. App. 2009)
(quoting Almanza, 686 S.W.2d at 171). Egregious harm is a difficult standard to meet and must
be determined on a case-by-case basis. See Ellison v. State, 86 S.W.3d 226, 227 (Tex. Crim. App.
2002).
2. Analysis Assuming we found error in the jury charge, appellant is unable to demonstrate harm.
Generally, if the State seeks to enhance a defendant’s sentence under Section 12.42(d) of the Penal
Code, the State must prove the following sequence of events: (1) the first conviction becomes
final; (2) the offense leading to a later conviction is committed; (3) the later conviction becomes
final; and (4) the offense for which defendant presently stands accused is committed. See Jordan
v. State, 256 S.W.3d 286, 290–91 (Tex. 2008); TEX. PENAL CODE §12.42(d). The State carries the
burden of proving beyond a reasonable doubt a defendant’s second felony conviction was
committed after the defendant’s first previous felony conviction became final. Id. at 291.
However, this burden was removed from the State when appellant pleaded true to the enhancement
allegations. See Harvey v. State, 611 S.W.2d 108, 111 (Tex. Crim. App. 1981) (“Where the state
alleges, for enhancement of punishment purposes, a prior conviction, it, of course, has the burden
of proof to prove the prior conviction was a final conviction under law. Here, however, appellant
himself, by pleading “True,” removed this burden from the state.”). Thus, the validity of an
enhancement allegation need not be submitted to the jury when there is no dispute concerning its
validity. See Vance v. State, 970 S.W.2d 130, 133 (Tex. App.—Dallas 1998, no pet.). In this case,
appellant pleaded true to the enhancement allegations. As there was no issue of validity in this
case, the trial court had no reason to instruct the jury to find appellant’s second conviction was


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committed after his first previous felony conviction became final. Accordingly, we cannot
determine appellant suffered egregious harm and we overrule appellant’s second issue.

Outcome: On the record of this case, we affirm the trial court’s judgment.

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