Karr v. State

685 S.W.3d 206

Bradley Earl KARR, Appellant

v.The STATE of Texas

No. 02-23-00220-CR

Court of Appeals of Texas, Fort Worth.

Delivered: February 8, 2024

On Appeal from the 396th District Court, Tarrant County, Texas, Trial Court No. 1729404D, HON. GEORGE WILLIAM GALLAGHER, Judge

ATTORNEY FOR APPELLANT: BRYANT FRANCIS CABRERA, CABRERA LAW FIRM, P.L.L.C., ARLINGTON, TEXAS.

ATTORNEYS FOR STATE: PHIL SORRELLS, CRIMINAL DISTRICT ATTORNEY; STEVEN W. CONDER, ASSISTANT CRIMINAL DISTRICT ATTORNEY CHIEF, POSTCONVICTION; VICTORIA A. FORD OBLON, SARAH BRUNER, ASSISTANT CRIMINAL DISTRICT ATTORNEYS FOR TARRANT COUNTY, FORT WORTH, TEXAS.

Before Bassel, Womack, and Wallach, JJ.

OPINION

Opinion by Justice Wallach

A jury found appellant Bradley Earl Karr guilty of failure to register as a sex offender, a third-degree felony. See Tex. Code Crim. Proc. Ann. art. 62.102(b)(2). The trial court found two enhancement paragraphs true and assessed Karr’s punishment at 15 years’ confinement.

On appeal, Karr raises two issues:

• the trial court erred by admitting, over his hearsay objection, a Department of Public Safety (DPS) document that identified which offenses under the Uniform Code of Military Justice corresponded to Texas offenses requiring registration; he maintains that this document was the only evidence showing that he had a conviction from another jurisdiction that required him to register in Texas; and

• the evidence was insufficient to prove that he was a habitual offender because the two prior convictions used to enhance his punishment were not sequential but contemporaneous; he asserts that to qualify as a habitual offender, the convictions had to be sequential.

As for Karr’s first issue, we hold that the DPS document was admissible as a public record because DPS prepared it for purposes unrelated to any specific litigation. We thus overrule Karr’s first issue.

Regarding Karr’s second issue, we hold that the trial court did not use the two prior convictions to punish Karr as a habitual offender. Rather, it erroneously used one conviction to enhance Karr’s offense, thereby improperly making it a second-degree felony, and then erroneously used the second conviction to enhance Karr’s punishment to that of a first-degree felony. Although the trial court assessed a punishment within the range of a second-degree felony, we nevertheless hold that the error was harmful. We thus sustain Karr’s second issue, reverse the trial court’s judg- ment, and remand the case to the trial court for a new trial on punishment.

I. BACKGROUND

Karr was convicted in 2007 of an offense under the Uniform Code of Military Justice at the Mountain Home Air Force Base in Idaho that required him to register in Idaho as a sex offender. Specifically, Karr was convicted for possessing child pornography. When Karr moved to Texas in 2015, DPS determined that the elements of his military-justice offense were substantially similar to the elements of a Texas offense requiring registration. Karr thus had to register as a sex offender in Texas as well.

Thereafter, the State indicted Karr twice for not registering as a sex offender—once in 2016 and once in 2018. Karr was convicted of both offenses on the same date in 2018.¹ He received concurrent three-year sentences.

In February 2022, Karr called the police because he feared his home was being burglarized. The police responded but did not find a burglar. During their investigation, the police determined that Karr had not registered as a sex offender.

In May 2022, the State indicted Karr for failing to register as a sex offender. The State structured the indictment to use one of Karr’s prior convictions to enhance his offense and the other prior conviction to enhance his punishment.

During the jury trial on guilt or innocence, to prove that Karr had an offense from another jurisdiction that required him to register as a sex offender in Texas, the State relied on a DPS document that listed offenses under the Uniform Code of Military Justice that corresponded to Texas offenses requiring registration. See Tex. Penal Code Ann. § 12.42(g)(2).

After the jury found Karr guilty, Karr went to the court for punishment. During the bench trial on punishment, the trial court used Karr’s two prior convictions for failure to register in the same manner that the State had used them in its indictment. The trial court used one to enhance Karr’s offense from a third-degree to a second-degree felony offense and the other to enhance Karr’s punishment range from that of a second-degree to that of a first-degree felony.

The difference in punishment ranges for second- and first-degree felonies is substantial. For a second-degree felony, the punishment range is any term of years of not more than 20 years or less than 2 years and a fine not to exceed $10,000. Id. § 12.33. For a first-degree felony, the punishment range is life or any term of years of not more than 99 years or less than 5 years and a fine not to exceed $10,000. Id. § 12.32.

The trial court sentenced Karr to fifteen years in prison. This sentence thus fell within the punishment ranges of both a first- and second-degree felony.

II. FIRST ISSUE

In Karr’s first issue, he contends that the trial court erred by admitting, over his hearsay objection, the DPS document. See id. § 12.42(g)(2). Karr contends that the DPS document was the only evidence showing that his military-justice conviction shared the same elements as a Texas offense requiring registration; therefore, he concludes, its admission was harmful.

A. Standard of Review

[1–3] When the trial court admits evidence, we review its ruling for an abuse of discretion. Wright v. State, 618 S.W.3d 887, 890 (Tex. App.—Fort Worth 2021, no pet.). Under this standard, we will uphold the trial court’s decision so long as it was within the zone of reasonable disagreement. Id. We will not disturb the trial court’s ruling if it was correct under any legal theory. Id.

B. The DPS Document

[4] DPS had a legal duty to compile the document. Tex. Code Crim Proc. Ann. art. 62.003(a). It must annually prepare a document determining which convictions from other jurisdictions correspond to Texas offenses requiring registration. Id. art. 62.003(a), (b). This document is the only means that the State may use to prove that a defendant has a conviction from another jurisdiction requiring him to register in Texas. See Crabtree v. State, 389 S.W.3d 820, 832 (Tex. Crim. App. 2012).

C. Public Records

[5] Karr maintains that the DPS document was inadmissible hearsay. We disagree.

One basis for admitting the document was under the public records exception to hearsay:

The following are not excluded by the rule against hearsay, regardless of whether the declarant is available as a witness:

….

(8) Public Records. A record or statement of a public office if:

(A) it sets out:

(i) …;

(ii) a matter observed while under a legal duty to report, but not including, in a criminal case, a matter observed by law-enforcement personnel; or

(iii) …; and

(B) the opponent fails to demonstrate that the source of information or other circumstances indicate a lack of trustworthiness.

Tex. R. Evid. 803(8)(A)(ii), (B).

DPS personnel, Karr asserts, are law-enforcement personnel. See Martinez v. State, 22 S.W.3d 504, 508 (Tex. Crim. App. 2000) (citing Cole v. State, 839 S.W.2d 798, 803 (Tex. Crim. App. 1990), op. on reh’g, 839 S.W.2d 806 (Tex. Crim. App. 1992)).² Karr maintains that the DPS document was not admissible under this exception because it contained matters "observed by law-enforcement personnel." See Tex. R. Evid. 803(8)(A)(ii).

Whether DPS employees are law-enforcement personnel is not dispositive; the nature of their work is. In Cole, a DPS chemist worked on a specific criminal investigation; his report was inadmissible under Rule 803(8)(B) for lack of trustworthiness because it was prepared as part of the adversarial process in a specific case. Cole, 839 S.W.2d at 804, 809–10. The court in Cole distinguished the chemist’s reports from other types of reports: "[T]he [chemist’s] reports were not prepared for purposes independent of specific litigation, nor were they ministerial, objective observations of an unambiguous factual nature." Id. at 805, 810.

[6] This distinction is dispositive. Rule 803(8)(A)(ii) allows the admission of law-enforcement reports that

• are prepared in a nonadversarial setting,

• are unrelated to any specific litigation, and

• record objective, neutral observations.

Emich v. State, No. 02-18-00059-CR, 2019 WL 311153, at *5 (Tex. App.—Fort Worth Jan. 24, 2019, pet. ref'd) (mem. op., not designated for publication); see Pondexter v. State, 942 S.W.2d 577, 585 (Tex. Crim. App. 1996) (citing United States v. Quezada, 754 F.2d 1190, 1193–94 (5th Cir. 1985)); Cole, 839 S.W.2d at 804, 810. The rule excludes the admission of law enforcement’s crime-scene or investigation observations because such observations, opinions, and narrations are made while the officer is "engaged in the often competitive enterprise of ferreting out crime" and are thus inherently adversarial and less reliable than other types of public records. Emich, 2019 WL 311153, at *5 (citing Fischer v. State, 252 S.W.3d 375, 382 (Tex. Crim. App. 2008) (quoting Johnson v. United States, 333 U.S. 10, 14, 68 S. Ct. 367, 369, 92 L.Ed. 436 (1948))). In Karr’s case, the DPS document was prepared independently of any one criminal case. Therefore, the exception to the exception on which Karr relies does not apply.

Karr does not argue that the DPS document was otherwise untrustworthy under Rule 803. See Tex. R. Evid. 803(8)(B). We hold that the trial court did not abuse its discretion by admitting the DPS document as a public record under Rule 803.

We overrule Karr’s first issue.

III. SECOND ISSUE

In Karr’s second issue, he argues that the evidence was insufficient to prove the State’s habitual offender allegation under Section 12.42(d) of the Texas Penal Code. See Tex. Penal Code Ann. § 12.42(d)....