author: PER CURIAM. WOMACK, J.,

text:
    Ex Parte James Otis BROWN, Applicant.
    No. AP-73932.
    Court of Criminal Appeals of Texas, En Banc.
    Jan. 12, 2005.
    Rehearing Denied March 23, 2005.

      Hervey, J., dissented.
    Keller, P.J., filed dissenting opinion in which Hervey, J., joined.
    Womack, J., filed dissenting opinion.
    Keasler, J., filed dissenting opinion in which Keller, P.J., and Hervey, J., joined.
    John Tatum, Richardson, for appellant.
    Kathi Drew, Assist. DA, Dallas, Matthew Paul, State’s Attorney, Austin, for State of Texas.
   OPINION

PER CURIAM.

In this post-conviction application for a writ of habeas corpus, applicant asserts that Judge Baraka, the original trial court judge, violated his right to due process because he refused to consider the full range of punishment at the hearing on the State’s motion to adjudicate. We agree with applicant and therefore grant relief.

I.

Applicant was charged with robbery. He pleaded guilty on July 12, 1989, and Judge Baraka deferred any finding of guilt and placed him on probation for four years. Shortly thereafter, applicant violated the conditions of his probation by failing to report to the probation officer in August, September, and October, and by failing to pay his probation fees, fine, and restitution. At the adjudication hearing, applicant pleaded “true” to the allegations and testified:

Defense: What can you tell the Judge, for what good reason can you give him for having not [abided by the probation conditions]?
Applicant: There was really no good reason, Your Honor.
Court: You’re not asking me to do anything but what I said, aren’t you. I told you what I was going to do if you did this, didn’t I?
Applicant: Yes, sir. Your Honor.
Court: So tell me what it is that you’re going to ask me to do.
Applicant: I’m going to ask you to reinstate me.
Court: Go on. I’m listening.
Applicant: I’m just going to ask you to reinstate me.
Court: Remember that long conversation I had when I put you on probation?
Applicant: Yes, sir, Your Honor.
Court: And you can look me in the eye, and you’re actually going to ask me that?
Applicant: Yes, sir.
Court: Okay. Anything else?
Defense: Anything else you want to add?
Applicant: The reason why I didn’t report [was] because I had a lot of problems since day one when I got out of jail. I was smoking crack.
Court: That is strong.
Applicant: It’s terrible.
Court: What did I tell you when you got out and you had some problems?
Applicant: To come see you.
Court: Some [sic ] and see me. If you had a drug problem, I’d help resolve that for you. .Didn’t I tell you that?
Applicant: Yes, sir.
Court: If you needed a job, come to me, I’d find you a job. Didn’t I tell you that?
Applicant: Yes, sir, Your Honor.
Court: If you need a place to live, come to me. I’ll find you a place to live. Didn’t I tell you that.
Applicant: Yes, sir.
Court: But I said, sir, don’t fail to report. Don’t ever do it. Didn’t I tell you that?
Applicant: Yes, sir.
Court: I told you what I’d do about it if you did.
Applicant: You said you’d give me twenty years.
Court: Watch me. Pay attention. Any- • thing further?
There was nothing further, and Judge Baraka sentenced applicant to twenty years in prison, the maximum punishment. Applicant did not object. His conviction was affirmed on appeal.
Applicant then filed a writ of habeas corpus alleging that: 1) the trial judge denied him due process of law by prejudging his punishment; 2) his trial counsel rendered ineffective assistance of counsel by failing to object to the trial court’s sentencing procedure; and 3) his appellate counsel rendered ineffective assistance of counsel by filing an Anders brief which stated that there were no grounds that would warrant reversal.

At the time applicant filed his habeas writ, Judge Baraka was no longer the presiding judge of the convicting court. He had been succeeded by Judge King who made factual findings, including one that:

there are a number of cases on the books which remanded cases back to the Criminal District Court No. 2 due to Judge Baraka’s promises made at the time the defendant was placed on probation. [footnote: See, Jefferson v. State, 803 S.W.2d 470 (TexApp.-Dallas 1991, pet. ref d); Earley v. State, 855 S.W.2d 260, 262 (Tex.App.-Corpus Christi 1993, pet. dism’d); Howard v. State, 830 S.W.2d 785 (Tex.App.-San Antonio 1992, pet. ref d).] For a period of time when Judge Baraka would place a defendant on probation he told them if they “messed up” he would give them the maximum sentence at the revocation hearing. The statement of facts attached to the application for writ of ha-beas corpus indicated] that this case is another example of Judge Baraka prejudging punishment. The court finds that the record supports Applicant’s claim that he was promised the maximum sentence in this case if he messed up on probation and at the revocation hearing Judge Baraka imposed the promised sentence without consideration of any evidence. The court finds that Applicant is entitled to a new revocation hearing.

After reviewing the writ application, attached materials, and Judge King’s Findings of Fact and Conclusions of Law, this Court remanded to the trial court for further findings and conclusions. First, we asked the trial court to consider whether applicant’s due-process claim could be brought for the first time on a writ of habeas corpus when other probationers, as noted by Judge King, had brought this same claim by direct appeal. Normally, the writ of habeas corpus cannot be used to litigate matters that could have, and therefore should have, been raised on direct appeal. Second, we asked the trial court to give Judge Baraka an opportunity to testify or otherwise explain on the record whether he had, in fact, prejudged applicant’s punishment. Although the bare record could support a finding of punishment prejudgment — that Judge Baraka was simply carrying out the “promise” he made when he placed applicant on probation to give him the maximum punishment if he violated any condition of probation — there might also be other reasons, not apparent on the record, which would explain Judge Baraka’s sentence.

II.

On remand, a new district court judge, Judge Stricklin, found that applicant could not raise his due-process claim by writ of habeas corpus. Noting that the issue of prejudgment of punishment is an issue that can be appealed, the trial court found that the record did not justify applicant’s failure to raise the issue on appeal. Thus, the trial judge concluded, as a matter of law, that applicant was procedurally barred from raising the issue on a writ.

This is a conclusion of law that we review de novo. Although no appeal may be taken from a trial court’s decision to proceed with adjudication of guilt, the deferred-adjudication statute expressly permits a defendant to appeal the assessment of punishment. Article 42.12, section 5(b) states: “After an adjudication on guilt, all proceedings, including assessment of punishment, pronouncement of sentence, granting of community supervision, and defendant’s appeal continue as if the adjudication of guilt had not been deferred.” Because applicant could have raised his due-process claim of prejudgment of punishment on direct appeal, he ordinarily would not be entitled to raise the issue by writ.

However, this particular case demonstrates an exception in which a habeas applicant may raise his due-process claim for the first time by writ of habeas corpus. As with the vast majority of claims of ineffective assistance of counsel, the trial record is insufficient to allow an appellate court to resolve the issue. Judge Baraka’s admonition — that he would impose the maximum sentence if applicant violated his probation — does not, by itself, show prejudgment of punishment. In the absence of other evidence or indications of prejudgment in the trial record, an appellate court could not resolve this claim. Two types of extra-record evidence, in pai'ticular, are useful to the resolution of a due-process issue of prejudgment of punishment.

First, a court could examine other cases from Judge Baraka’s court to determine what types of cases, and how often, the judge threatened to impose the maximum sentence, and how often he actually did assess such a sentence. That is the evidence that Judge King relied upon in finding that Judge Baraka did prejudge the sentence in this case. That pattern of prejudging punishment could not be shown by looking only to the trial court record in applicant’s case. But that was the only extra-record evidence that Judge King relied upon.

A second, even more important, type of relevant information not contained in the trial record would be Judge Baraka’s testimony or statements on this issue. Because applicant could not provide such evidence without going outside the trial record, he, like those defendants claiming ineffective assistance of counsel, may raise his due-process claim by writ of ha-beas corpus.

Therefore, we cannot adopt Judge Stricklin’s conclusion of law that applicant waived his due-process claim by failing to raise it on direct appeal.

III.

Judge Stricklin also found that Judge Baraka did not prejudge applicant’s punishment and concluded that applicant had failed to prove a due-process violation. Based on testimony offered at the hearing on remand, the trial court found that Judge Baraka imposed the maximum sentence based on what he “learned about the applicant from what was before him during the original plea and revocation hearing.” We conclude that the habeas record does not support the trial court’s conclusion.

In McClenan v. State, , we noted, in dictum, that “[a] court’s arbitrary refusal to consider the entire range of punishment would constitute a denial of due pro-eess[.]” Texas trial courts have wide discretion in determining the proper punishment in a revocation hearing, but due process guarantees a defendant the right to a hearing before a “neutral and detached hearing body.” One federal court has stated, in holding that Judge Baraka prejudged a probationer’s punishment:

[A] defendant is entitled to a probation revocation hearing before a judicial officer who has not predetermined that probation should be revoked or that a particular punishment should be imposed.

In supervising a probationer, a trial judge must “constantly remember that he may one day be cast in the role of trier of fact in a revocation proceeding, and that in that event he will be required to disqualify himself unless he has refrained from prejudgment.”

In this case, the habeas judge, Judge Stricklin, noted that “Judge Baraka testified that the lack of mitigating evidence at the adjudication hearing led him to impose the maximum sentence.” Judge Baraka did testify that he would have considered any mitigating evidence:

Q: (by the State’s attorney) If he had presented any substantial excuse or some substantial mitigating evidence, would you have taken that into consideration?
A: Sure, always. You never know. Sometimes, as they say, truth is stranger than fiction. I have had— for instance, it was known that if you failed to report, you are absolutely going to the penitentiary. Well, in 99.2 percent of the time, it was probably true; but I have had some people who come forth and based on all the facts and circumstances, I could put myself in the place of a person who may be distraught, not thinking right, making the right choices; and if those are giving me the options, I probably would not send them to the pen; but, you know, my main thing oftentimes was just to try to get their attention.
Q: You wanted to impress upon them the seriousness of the situation?
A: If it was with him, him, and whoever was watching that was ready to come before me.

Here, Judge Baraka testified that he would have considered mitigating evidence in deciding whether to revoke probation. He would, he said, consider the fact that a person was “distraught, not thinking right, making the right choices.” In that case he might not revoke probation and “send them to the pen.” That testimony tells us nothing, however, about whether Judge Baraka carried through on his original promise to applicant to impose the maximum sentence if he did, in fact, revoke probation.

Judge Baraka forthrightly acknowledged that he could not remember anything about this case; he was basing his testimony on nothing more than his usual routine and his review of the statement of facts in this case. From that review it looked to him as if he was simply making good on a promise he had made during the original plea hearing:

Q: (By applicant’s attorney) And it is my understanding that after reviewing the information that was provided to you that you have no personal recollection of this gentleman who is sitting next to me as James Otis Brown?
A: No, I do not.
Q: And — but you don’t remember the circumstances of why he appeared before you on the original plea or his revocation?
A: I haven’t a clue. Even now, to be honest with you, I don’t know.
Q: Okay. You made the statement that, “Based upon my reading and interpretation, it would appear that I had advised Mr. Brown that he would receive a 20-year sentence if he violated the terms and conditions of his probation.”
And that was a statement you made after reading the transcript of the original plea; is that correct?
A: Correct.
Q: And you also state, “Upon revocation, I apparently sentenced Mr. Brown to 20 years.”
Fulfilling that promise is a reasonable interpretation of what could be made from that; is that correct?
A: Correct.
Q: Okay. But other than the interpretation that there was a prejudgment because he did receive what he was promised, you don’t have any specific recollection as to why him particularly one way or another?
A: No, not with him particularly.
Q: Or what facts went into your judgment in setting the sentence at that point?
A: With regard to him specifically, no.
Further, Judge Baraka, responding to applicant’s counsel’s question about trial counsel’s performance, said:
A: ... Sometimes mitigating evidence is nothing, just a guy giving me an excuse. Sometimes it has a value. Q: It could have a value?
A: Correct. But, as I said, in interpreting his case, I don’t know him personally. I don’t know all the things I said to him.
In writing the affidavit, I tried to be as honest and straight with it, and give him the benefit of the doubt, in fact; and by reading it, I have interpreted that I could have very well told him, in advance, that if I saw you again, you are going to get 20 years, and gave it to him, because generally, if I said I was going to do something — probably until the time that the Court of Criminal Appeals told me that I can’t do it; but generally when I told a person that I was going to do something, I rarely failed to do it.

Judge Baraka’s testimony does not support the conclusion that he did not prejudge applicant’s punishment Although he testified that he did not remember applicant at all, he normally — or as he put it, in 99.2% of the cases — followed through on the punishment he had promised a defendant at the time of placing a defendant on probation. There is nothing in this record to suggest that applicant’s case falls into the .8% of the cases in which Judge Bara-ka did not follow his normal routine.

Judge Baraka promised applicant at the original plea hearing that he would impose the maximum punishment of 20 years if applicant failed to report to his probation officer. He reminded applicant at the adjudication hearing of this earlier colloquy, and applicant agreed “You said you’d give me twenty years” if applicant failed to report to his probation officer. Judge Baraka then sentenced applicant to 20 years imprisonment, exactly as he had previously promised. There is nothing in the habeas record on remand which contradicts this promise of 20 years’ imprisonment and its imposition should applicant fail to report to his probation officer.

As noted above, a trial court’s arbitrary refusal to consider the entire range of punishment in a particular case violates due process. A trial judge may certainly impress upon a prospective probationer the seriousness of the possible consequences of a failure to abide by the terms and conditions of probation, but it is an altogether different thing to promise to impose the maximum punishment if a prospective probationer fails to abide by the terms of probation and then carrying through on that promise without “actually consider[ing] the evidence presented at the revocation hearing.”

Given the state of this record, we conclude that the record continues to support Judge King’s original habeas finding- — also based on a reading of the very same statement of facts from the original plea hearing — that “this case is another example of Judge Baraka pre-judging punishment.”

Although we adopt the trial court’s finding that applicant failed to show that Judge Baraka prejudged the decision of whether to revoke probation, we find that the record does not support the further finding that Judge Baraka did not prejudge the punishment to be assessed once he did decide to revoke probation.

For this reason, we grant relief and remand this case to the trial court at the point immediately after the adjudication of guilt. The trial court should re-assess an appropriate sentence within the entire punishment range. Copies of this opinion shall be sent to the Texas Department of Criminal Justice, Institutional Division.

HERVEY, J., dissented.

KELLER, P.J., joined by HERVEY, J., filed a dissenting opinion.

WOMACK, J., filed a dissenting opinion.

KEASLER, J., joined by KELLER, P.J. and HERVEY, J., filed a dissenting opinion.

KELLER, P.J., dissenting in which HERVEY, J. joined.

In Hull v. State, we held that a defendant who failed to object to the imposition of “zero tolerance” probation forfeited his right to complain about it on appeal. In that case the defendant made no objection at the time of the imposition of probation, when the remarks were made, or at the time of revocation. In this case, applicant likewise failed to object at trial. He has, therefore, forfeited his right to complain that Judge Baraka pre-judged his punishment.

Applicant, however, also raises an ineffective assistance of counsel claim, claiming that trial counsel’s failure to object, and appellate counsel’s failure to complain about the failure to object, constitute deficient performance.

If Judge Baraka did not pre-judge applicant’s punishment, then counsel was not ineffective for failing to object. We have before us findings of fact from the original habeas judge and the subsequent habeas judge. The original habeas judge — Judge King — found that applicant was entitled to relief. The subsequent judge — Judge Stricklin — found that applicant was not entitled to relief. Judge King based his recommendation on the record without a hearing. Judge Stricklin held a hearing at which Judge Baraka testified. To the extent that there is a difference of opinion between the two habeas judges, and that difference rests upon a determination of Judge Baraka’s credibility, we should defer to the judge who heard Judge Baraka’s testimony.

Judge Stricklin found that Judge Baraka would have permitted applicant to explain why he violated the conditions of his probation, but applicant failed to do so. Judge Stricklin also found that bias, if any, came from what Judge Baraka learned about applicant from the original plea and the revocation hearing. The record supports these findings, as well as Judge Stricklin’s finding that Judge Baraka did not violate applicant’s constitutional rights. Because there was no violation of applicant’s constitutional rights, trial counsel’s failure to object did not constitute ineffective assistance of counsel.

I respectfully dissent.

WOMACK, J.,

dissenting.

Although I agree with the court’s opinion (Parts I and II, ante) that the applicant’s failure to appeal does not prevent his seeking relief by the writ of habeas corpus, I would defer to the district judge’s factual conclusion that the applicant failed to prove that Judge Baraka prejudged his punishment. I agree with the “Burden of Proof’ portion of Judge Keasler’s opinion (post, at 461-62).

When a judge grants probation and warns the defendant that the court will impose the maximum sentence if the defendant violates the conditions of probation, the judge could be stating for the record a plan to prejudge the outcome of a subsequent hearing of a motion to revoke probation. Or the judge’s statement may be a rhetorical device to impress on the defendant the importance of complying with the conditions. The appellate record of that proceeding may not, and probably will, not show whether the judge’s statement was one or the other.

If, in any such case, the court did impose the maximum sentence when a defendant was proved to have violated the conditions, the sentence does not, by itself, show that there was a prejudgment of punishment. Other facts in the appellate record might call for an appellate court to vacate the sentence and remand the case to the trial court. But if there were no other indications of prejudgment in the appellate record, the question could not be resolved in the appellant’s favor. In such a case, the writ of habeas corpus would be the procedure by which a defendant could go outside the record for additional evidence.

Two types of evidence, in particular, would be useful to the resolution of the issue. First, an examination of other cases could show in what types of cases, and how often, the judge threatened to impose the maximum sentence, and in what types of cases, and how often, the judge actually assessed that punishment. A second source of relevant information beyond the appellate record could be the judge’s own testimony on the issue.

In the convicting court, a successor judge found that Judge Baraka exhibited a pattern of prejudgment of punishment. The judge noted that in several cases, Judge Baraka had told defendants, when placing them on probation, that if they “messed up” he would impose the maximum sentence at their revocation hearing, and that he did so. But from evidence introduced at the hearing, the court found that in this case Judge Baraka imposed the maximum sentence based on what he “learned about the applicant from what was before him during the original plea and revocation hearing.” I believe the record supports the judge’s conclusion.

KEASLER, J., dissenting in which KELLER, P.J., and HERVEY, J., joined.

Brown’s due process claim fails for three reasons: (1) he forfeited any claim of error by his failure to object at trial; (2) he forfeited his claim by failing to raise it on direct appeal; and (3) he fails to satisfy his burden of proof. Because the majority holds otherwise, I dissent.

Preservation of Error

Brown forfeited this claim of error by failing to object at trial. Just three years ago, in Hull v. State, this Court made clear that a claim that a trial judge prejudged the defendant’s sentence is forfeited by the failure to object at trial. Hull was a direct appeal case, but we have indicated that rules regarding preservation of error apply on habeas as well. The majority attempts to distinguish this case from Hull on the grounds that, in Hull, the defendant “was fully aware of the court’s policy ... and did not object,” while in this case, the judge imposed the maximum sentence “without any explanation for its basis.”

But the majority itself disagrees with this statement. Later in its opinion, the majority summarizes the facts as follows: “Judge Baraka promised applicant at the original plea hearing that he would impose the maximum punishment of 20 years if applicant failed to report to his probation officer. He reminded applicant at the adjudication hearing of this earlier colloquy, and applicant agreed “You said you’d give me twenty years’ if applicant failed to report to his probation officer. Judge Bara-ka then sentenced applicant to 20 years imprisonment, exactly as he had previously promised.” Based on this rendition of the record, Brown was “fully aware” that Judge Baraka was sentencing him to 20 years because of an earlier promise. As a result, he could have objected.

Indeed, Brown himself recognizes this. He contends that the trial court violated his due process rights “by failing to and/or refusing to consider the full range of punishment by sentencing petitioner using a predetermined sentencing procedure.” He quotes pages from the record where Judge Baraka says such things as, “You’re not asking me to do anything but what I said, aren’t you? I told you what I was going to do if you did this, didn’t I? You remember that long conversation I had when I put you on probation? I told you what I’ll do about it if you did.” Brown argues that this record “reflects Judge Baraka made good on a promise in which petitioner did not have anything to say about the punishment. Without considering any evidence, not considering the full range of punishment.” He also complains that counsel failed to object to the court’s predetermined sentencing procedures, “especially when Judge Baraka repeatedly made it clear that he would sentence petitioner according to a promise he made in 1989.” There is no reason why Brown could not have objected.

The majority also finds that an objection was not necessary because in this case, “as with many ineffective assistance of counsel claims, the trial record, by itself, is not necessarily adequate for the defendant to object and present a valid constitutional claim at the time of the conduct.” With this statement, the majority confuses two different points of law. We have held that, when a defendant argues that he received ineffective assistance of counsel, the trial record may be inadequate to resolve his claim. This is not the same as holding that the defendant need not object to errors occurring at trial. Regardless of whether a record is adequate to resolve a claim, objections are still required to preserve trial errors. Of course, a defendant need not object to receiving ineffective assistance of counsel, since that would be impossible — it would require a deficiently-performing lawyer to lodge an objection against his own performance. A claim of prejudgment of sentence is obviously different. It is not impossible to object to this error.

Finally, excusing Brown’s failure to object creates an odd loophole in the law.’ If litigants have to object to obtain relief on direct appeal, but do not have to object to obtain relief on habeas, then those who fail to object will simply bypass direct appeal and seek relief on habeas. But if the claim need not be raised on direct appeal, then Hull’s holding requiring an objection becomes meaningless.

I believe an objection was required to preserve this error and Brown’s failure to do so waived it.

Appellate Remedy

Brown also forfeited this claim by fading to raise it on direct appeal. We have long held that “[t]he Great Writ should not be used to litigate matters which should have been raised on appeal.” We recently reiterated in Ex parte Townsend that “even a constitutional claim is forfeited if the applicant had the opportunity to raise the issue on appeal” and failed to do so.

The majority concludes that this case qualifies as an “exception in which a habe-as applicant may raise his due process claim for the first time by writ of habeas corpus. As with the vast majority of ineffective assistance of counsel claims, the trial record is insufficient to allow an appellate court to resolve the issue.” With this, the majority creates an exception that swallows the rule.

The exception to which the majority refers was first articulated in Ex parte Torres., We were addressing the rule that “a claim which was previously raised and rejected on direct appeal is not cognizable on habeas corpus.” We concluded that “this doctrine should not be applied where direct appeal cannot be expected to provide an adequate record to evaluate the claim in question, and the claim might be substantiated through additional evidence gathering in a habeas corpus proceeding.”

We then explained in some detail why a claim regarding ineffective assistance of counsel came within this exception:

In most instances, the record on direct appeal is inadequate to develop an ineffective assistance claim. Moreover, the inadequacy of the appellate record in these situations is due to the inherent nature of most ineffective assistance claims. The very ineffectiveness claimed may prevent the record from containing the information necessary to substantiate such a claim. Moreover, the trial record ordinarily does not reflect counsel’s reasons for doing or failing to do actions of which the defendant complains. While expansion of the record may be accomplished in a motion for new trial, that vehicle is often inadequate because of time constraints and because the trial record has generally not been transcribed at this point. Further, mounting an ineffective assistance attack in a motion for new trial is inherently unlikely if trial counsel remains counsel during the time required to file such a motion. Hence, in most ineffective assistance claims, a writ of habeas corpus is essential to gathering the facts necessary to adequately evaluate such claims.

Since then, we have only applied the Torres exception to claims regarding ineffective assistance of counsel, although we have expanded it to include situations in which the applicant fails to raise the claim on direct appeal.

The majority applies the Torres exception to this case because, according to the majority, in this case “the trial record is insufficient to allow an appellate court to resolve the issue.” The problem with this rationale is that it considers this case individually instead of considering prejudgment claims generally. That is, the Torres exception should not be applied every time a particular litigant is unable to prove his claim on direct appeal. Instead, it should be limited to categories of claims which, as a whole, may not be proved on direct appeal. Otherwise, it will be applied whenever a defendant has a claim which is not supported by the trial record, and the Torres exception will completely swallow the Banks and Acosta rules.

Our courts of appeals have made clear that a claim regarding prejudgment of sentence, even one concerning Judge Baraka himself, may be considered (and found meritorious) on direct appeal. If those records were adequate to evaluate a prejudgment claim, then this one is, too. As a result, the Torres exception should not apply to a claim regarding prejudgment of sentence. Therefore, Brown procedurally defaulted his claim by failing to raise it on direct appeal.

Burden of Proof

Finally, Brown fails to satisfy his burden of proof. We have repeatedly held that the burden of proof in a habeas application is on the applicant to prove his factual allegations by a preponderance of the evidence. But today, the majority puts the burden of proof on the State to show that Judge Baraka did not prejudge the sentence. The majority presumes that prejudgment occurred in the face of no evidence to the contrary. But it is Brown’s job to produce evidence that demonstrates prejudgment by a preponderance of the evidence. It is not the State’s job to prove that no prejudgment occurred.

The majority concedes that, when we remanded this application, “the bare record could [have] supported] a finding of punishment prejudgment ... [but] there might also [have] be[en] other reasons, not apparent on the record, which would [have] explained] Judge Baraka’s sentence.” So at that time, Brown had not satisfied his burden of proof. He had shown a possibility of prejudgment, but he had not shown prejudgment by a preponderance of the evidence. Then, at the evidentiary hearing on remand, the majority concedes, “Judge Baraka forthrightly acknowledged that he could not remember anything about this case.” Obviously, then, Brown was still unable to satisfy his burden of proof after the remand.

The majority finds significance in the fact that Judge Baraka testified that he “would have considered mitigating evidence in deciding whether to revoke probation.” The majority says that this testimony “tells us nothing ... about whether Judge Baraka carried through on his original promise to applicant to impose the maximum sentence....” This is true. And as a result, Brown fails to satisfy his burden of proof. As noted, Judge Baraka remembered nothing about this particular case. The fact that Judge Baraka testified that he “would have considered mitigating evidence in deciding whether to revoke probation” does not mean that Judge Bar-aka would not have considered mitigating evidence in deciding what sentence to impose. Nothing in Judge Baraka’s testimony demonstrates that he prejudged Brown’s sentence.

Brown fails to satisfy his burden of proof, and the majority errs in placing the burden of proof on the State instead of Brown.

Conclusion

Brown forfeited any claim of error by failing to object at trial. He forfeited his claim by failing to raise it on direct appeal. And he fails to satisfy his burden of proof. Because the majority holds otherwise, I dissent. I also note that, despite the majority’s reference to ineffective assistance claims, the majority does not reach Brown’s claims of ineffective assistance of counsel. Neither do I. The majority grants Brown relief on his prejudgment claim, and I dissent to that holding.

      . Brown v. State, No. 05-90-003 06-CR (Tex. App.-Dallas, filed February 26, 1991, pet. ref'd).

      . See Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967).

      . Applicant also failed to object to Judge Bar-aka’s sentence in the trial court. In Hull v. State, 67 S.W.3d 215 (Tex.Crim.App.2002), we held that a defendant who failed to object to the imposition of "zero tolerance” probation forfeited his right to complain about that condition on appeal. In that case, the defendant did not object at the time the trial judge orally imposed the "zero tolerance” probation condition, and he did not object at the time his probation was revoked. In Hull, unlike the present case, the trial "record reflects that appellant understood the 'zero tolerance’ policy to be overriding and controlling.... Appellant was fully aware of the court’s policy toward his probation and did not object.” Id. at 218. In the present case, the record shows that applicant was aware that the trial judge had "promised” to revoke his probation if he violated any of the probation conditions and that he had "promised” to impose the maximum prison sentence if applicant violated those conditions. Here, however, Judge Baraka imposed the maximum sentence without any explanation for its basis. He might have imposed that sentence for very good reasons, based upon applicant's underlying robbery offense and because of the seriousness of the probation violations. In this particular situation, as with many ineffective assistance of counsel claims, the trial record, by itself, is not necessarily adequate for the defendant to object and present a valid constitutional claim at the time of the conduct.

      . 661 S.W.2d 108 (Tex.Crim.App.1983), overruled on other grounds by De Leon v. Aguilar, 127 S.W.3d 1 (Tex.Crim.App.2004).

      . Id. at 110.

      . Gagnon v. Scarpelli, 411 U.S. 778, 782, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973).

      . Gonzales v. Johnson, 994 F.Supp. 759, 762 (N.D.Tex. 1997).

      . United States v. Sciuto, 531 F.2d 842, 846 (7th Cir.1976).

      . The statement was made in an affidavit admitted as an exhibit at the hearing. That affidavit read, in its entirety:
      I, Larry W. Baraka, swear that the foregoing statement is true and correct.
      I have no personal recollection of Mr. James Otis Brown, nor the circumstances of his appearance before me.
      I have read the statement of facts. Based upon my reading and interpretation, it would appear that I had advised Mr. Brown that he would receive a 20 year sentence if he violated the terms and conditions of his probation.
      Upon revocation, I apparently sentenced Mr. Brown to 20 years in the Texas Department of Corrections.

      . Judge Baraka's testimony, that if a defendant provided particularly persuasive mitigating evidence then he might back away from his original "promise” to revoke probation and send the probationer to the penitentiary, does not detract from the force of his original promise that he would, if he did revoke probation, sentence applicant to 20 years.

      . Gonzales, 994 F.Supp. at 764.

      . At the hearing on remand, applicant also called a Dallas County criminal defense attorney who had investigated numerous cases in which defendants had alleged prejudgment of punishment by Judge Baraka. This attorney claimed that the judge maintained a "hit list” with which he would keep track of the sentences he had "promised” defendants and he would assess those “promised” sentences upon revocation of probation. This attorney stated that there were “hundreds” of cases in which Judge Baraka had prejudged punishment.

      . Hull v. State, 67 S.W.3d 215 (Tex.Crim.App. 2002).

      . See McClenan v. State, 661 S.W.2d 108, 110 (Tex.Crim.App.1983); see also Earley v. State, 855 S.W.2d 260, 262-63(Tex.App.-Cor-pus Christi 1993), peí. dism'd, 872 S.W.2d 758 (Tex.Crim.App.1994) (concluding that Judge Baraka prejudged punishment when adjudi-eating defendant); Jefferson v. State, 803 S.W.2d 470, 472 (Tex.App.-Dallas 1991, pet. ref’d) (same); see also Gonzales v. Johnson, 994 F.Supp. 759, 762 (N.D.Tex.1997) (granting federal habeas relief after concluding that Judge Baraka prejudged punishment when adjudicating defendant; stating that "[a] 'neutral and detached’ decisionmaker does not prejudge evidence he has not seen.... Thus, a defendant is entitled a probation revocation hearing before a judicial officer who has not predetermined that probation should be revoked or that a particular punishment should be imposed”) (citations omitted). tradicts this promise of 20 years punishment and its imposition ... ”).

      . 67 S.W.3d 215 (Tex.Crim.App.2002).

      . Ex parte Pena, 71 S.W.3d 336, 337 (Tex. Crim.App.2002).

      . Ante, op. at 453 n. 3.

      . Id. at 456.

      . Writ record at 4.

      . Id.

      . Id. at 452.

      . Ante, op. at 453 n. 3.

      . Ex parte Torres, 943 S.W.2d 469, 475 (Tex. Crim.App.1997).

      . Ex parte Banks, 769 S.W.2d 539, (Tex. Crim.App.1989); Ex parte Groves, 571 S.W.2d 888, 890 (Tex.Crim.App.1978).

      . 137 S.W.3d 79, 81 (Tex.Crim.App.2004).

      . Ante, op. at 453.

      . 943 S.W.2d at 475.

      . Ex Parte Acosta, 672 S.W.2d 470, 472 (Tex. Crim.App.1984).

      . Torres, 943 S.W.2d at 475.

      . Id. (internal citations omitted).

      . Ex Parte White, 160 S.W.3d 46, 49, n. 1, 2004 WL 2179272 *1 n. 1 (Tex.Crim.App. 2004); Ex parte Nailor, 149 S.W.3d 125, 130-31 (Tex.Crim.App.2004); Ex parte Varelas, 45 S.W.3d 627, 630 (Tex.Crim.App.2001); Thompson v. State, 9 S.W.3d 808, 813-14 (Tex.Crim.App. 1999).

      . White, 160 S.W.3d at 49, n. 1, 2004 WL 2179272 *1 n. 1.

      . Arafó, op. at 453.

      . Howard v. State, 830 S.W.2d 785 (Tex. App.-San Antonio 1992, pet. ref’d).

      . Earley v. State, 855 S.W.2d 260 (Tex.App.Corpus Christi 1993, pet. dism’d); Jefferson v. State, 803 S.W.2d 470 (Tex.App.-Dallas 1991, pet. ref d).

      . Ex parte Thomas, 906 S.W.2d 22, 24 (Tex. Crim.App.1995); see also Ex parte Cruz, 739 S.W.2d 53, 59 (Tex.Crim.App. 1987); Ex parte Salinas, 660 S.W.2d 97, 101 (Tex.Crim.App. 1983); Ex parte McWilliams, 634 S.W.2d 815, 818-19 (Tex.Crim.App.1980); Ex parte Alexander, 598 S.W.2d 308, 309 (Tex.Crim.App. 1980); Ex parte Sanders, 588 S.W.2d 383, 385 (Tex.Crim.App.1979); Ex parte Rains, 555 S.W.2d 478, 481 (Tex.Crim.App.1977).

        .Ante, op. at 456 (“Judge Baraka’s testimony does not support the conclusion that he did not prejudge applicant’s punishment.”; "There is nothing in this record to suggest that applicant’s case falls into the .8% of the cases that Judge Baraka did not follow his normal routine.”); at 456 ("There is nothing in the habeas record on remand which con-

      . Id. at 452.

      . Id. at 455.

      . Id.

      . Id.


source: Caselaw Access Project

author: KELLER, P.J., JOHNSON, J.,

license: Public Domain

text:
    Rodney Camile SMITH, Appellant, v. The STATE of Texas.
    No. 0755-04.
    Court of Criminal Appeals of Texas, En Banc.
    Feb. 2, 2005.
    Stephen Christopher Taylor, Humble, for Appellant.
    Jeffrey L. Van Horn, First Asst. State Atty., Matthew Paul, State’s Atty., Austin, for State.
   OPINION

KELLER, P.J.,

delivered the opinion of the Court

in which PRICE, WOMACK, KEASLER, HERVEY, HOLCOMB, and COCHRAN, JJ., joined.

When a defendant stipulates to the two prior convictions necessary to establish the predicate for felony DWI, can an appellate court properly hold the evidence legally insufficient on the ground that one of the prior convictions is too remote in time and the record contains no evidence of an intervening conviction? We hold that the answer is “no” and reverse the judgment of the Court of Appeals.

I. BACKGROUND

A. Trial

Appellant and the State stipulated to the two prior convictions needed to raise a Driving While Intoxicated (DWI) offense from a misdemeanor to a felony. The written stipulation provided:

I, Rodney Camile Smith, am the identical person named in the indictment in the above styled and numbered cause; and I have read the same and hereby agree and confess that:
“On February 28, 1983, in the County Criminal Court at Law No. 4 of Harris County, Texas, in cause No. 685-779, I was convicted of the offense of Driving While Intoxicated; and
“On April 24, 1990, in the 258th District Court of Polk County, Texas, in Cause No. 12,255, I was convicted of the offense of Driving While Intoxicated.”

At the beginning of the guilt-innocence stage of trial, the following colloquy took place between appellant and his counsel:

[DEFENSE COUNSEL]: Mr. Smith, the trial has not started yet this morning; but we have talked today about the advisability of stipulating to two prior DWI convictions rather than have the State prove up the DWI convictions and running the risk of other things coming in that would be counter productive to our position. Do you agree with that?
[APPELLANT]: Yes, sir.
[DEFENSE COUNSEL]: And by signing this, you’re admitting that they don’t have to prove up these two things; and we don’t get into the issue of your priors at this trial, okay?
[APPELLANT]: Okay.
[DEFENSE COUNSEL]: Is that your agreement?
[APPELLANT]: Yes, sir.

No other evidence of any prior conviction was admitted during the guilt-innocence stage of trial.

B. Appeal

The Court of Appeals found that the evidence conclusively established that more than ten years elapsed between the date the 1983 offense was committed and the date of the primary offense, September 4, 1999. The Court of Appeals further concluded that the State did not prove the date on which the 1990 conviction was committed (April 24, 1990 being the date of judgment), and therefore, the State did not prove that the 1990 conviction was a qualifying intervening conviction (one that was committed within ten years of the primary offense), as required to establish felony DWI by the DWI enhancement scheme in effect in appellant’s case. The intermediate appellate court quoted our pronouncement from Weaver v. State that “[t]he State must, however, at some point during its case-in-chief, submit proof of the intervening conviction to the trial court.” The Court of Appeals held that, by falling to show that the 1990 conviction was a qualifying intermediate conviction, the State failed to prove that the 1983 offense could be used as a prior conviction for enhancement under Penal Code § 49.09(e). The Court of Appeals reversed the conviction and rendered a judgment of acquittal.

Chief Justice Gray dissented, stating that he could not “agree to reverse a conviction because of something the defendant wanted.” The dissent pointed out that appellant admitted on the record that the State would not have to prove up the prior convictions and that appellant would avoid a discussion of his priors. As a result of this state of affairs, the dissent concluded, appellant “cannot now complain that one of those .convictions was too remote to use.” The dissent cited Weaver for the proposition that the “remoteness” provision, § 49.09(e), “is not an element of felony DWI ... [but] is more like a rule of admissibility.” .

II. ANALYSIS

In Weaver, the prior convictions element of felony DWI was contested. It was this contested context that prompted our remark that a qualifying intervening conviction must be presented to the trial court during the State’s case-in-chief. Even so, we specifically held that the existence of a qualifying intervening conviction was not an element of the offense of felony DWI but more akin to a rule of admissibility, and therefore, the qualifying intervening conviction did not need to be submitted to the jury.

In this case, the prior convictions element was not contested but was instead confessed to by stipulation. Under these circumstances, appellant has lost the ability to complain about the remoteness of the prior conviction.

The judgment of the Court of Appeals is reversed, and the case is remanded to that court to address appellant’s remaining points of error.

JOHNSON, J., filed a concurring opinion.

MEYERS, J., did not participate.

JOHNSON, J.,

a concurring.

I concur in the judgment of the Court. However, I believe that the advice of counsel, which resulted in the stipulation at issue here, may sink to the level of ineffective assistance of counsel, depending on the date of the commission of the 1990 conviction. Neither the indictment nor the record, including the stipulation, aids us in determining that date.

The instant offense occurred on September 4, 1999. The conviction date for the next previous offense is April 24, 1990. Given that there is always a period of time between commission of an offense and a resulting conviction, it is at least conceivable that the commission of the offense, which is the critical date, occurred before September 4, 1989, and thus falls outside the statutory limitation of ten years. Tex. Penal Code, § 49.09(e)(1999). Appellee, in his brief, asserts that the date in question is September 3, 1989, one day beyond the ten-year limit. That, however, is an issue to be raised on an application for habeas corpus.

      . See TEX. PEN. CODE § 49.09

      . Smith v. State, 135 S.W.3d 198, 201 (Tex. App.-Waco 2004).

      . 87 S.W.3d 557 (Tex.Crim.App.2002).

      . Smith, 135 S.W.3d at 201 (quoting Weaver, 87 S.W.3d at 561).

      . Id.

      . Id. at 202.

      . Id. (Gray, C.J., dissenting).

      . Id.

      . Id.

      . Id. (citing Weaver, 87 S.W.3d at 561).

      . 87 S.W.3d at 558-559.

      . See Id. at 561.

      . Id.

      . Indeed, stipulating to the priors to avoid the introduction of damaging evidence (i.e. under Tamez v. State, 11 S.W.3d 198 (Tex. Crim.App.2000)) arguably rises to the level of estoppel, when it comes to challenging the legitimacy of using those priors. See Arroyo v. State, 117 S.W.3d 795, 798 (Tex.Crim.App.2003)(discussing State v. Yount, 853 S.W.2d 6, (Tex.Crim.App.1993) and Prystash v. State, 3 S.W.3d 522 (Tex.Crim. App.1999)).


author: WOMACK, J.,

text:
    The STATE of Texas v. Michael Doyle GRAY, Appellee.
    No. PD-0586-04.
    Court of Criminal Appeals of Texas, En banc.
    Feb. 16, 2005.

      Brian M. Schmidt, Athens, for Appellant.
    Shawn McDonald, Asst. District Atty., Athens, Matthew Paul, State’s Atty., Austin, for State.
    Before the court en banc.
   WOMACK, J.,

delivered the opinion for a unanimous Court.

In this case, the defendant moved to suppress evidence on the ground that officers did not have reasonable suspicion to seize him. The only evidence was the uncontradicted testimony of the officers. The trial court granted the motion to suppress. The State appealed. The Twelfth Court of Appeals reversed the decision of the trial court. We granted review to consider whether the appellate court gave proper deference to the trial court’s findings of fact.

In a similar case, State v. Ross, we have held that the trial court’s decision should have been affirmed because of the deference due its fact-findings. We explained:
In a motion to suppress hearing, the trial court is the sole trier of fact and judge of the credibility of the witnesses and the weight to be given their testimony. Accordingly, the judge may believe or disbelieve all or any part of a witness’s testimony, even if that testimony is not controverted. This is so because it is the trial court that observes first hand the demeanor and appearance of a witness, as opposed to an appellate court which can only read an impersonal record.

Furthermore, when the trial court fails to file findings of fact, we view the evidence in the light most favorable to the trial court’s ruling and assume that the trial court made implicit findings of fact that support its ruling as long as those findings are supported by the record. If the trial judge’s decision is correct on any theory of law applicable to the case, the decision will be sustained.

While discussing the appropriate level of appellate review, we stated in Guzman v. State:

[T]he appellate courts, including this Court, should afford almost total deference to a trial court’s determination of the historical facts that the record supports especially when the trial court’s fact findings are based on an evaluation of credibility and demeanor. [2] The appellate court should afford the same amount of deference to trial courts’ rulings on “application of law to fact questions,” also known as “mixed questions of law and fact,” if the resolution of those ultimate questions turns on an evaluation of credibility and demeanor. [3] The appellate courts may review de novo “mixed questions of law and fact” not falling within this category.

A difference between this case and Ross is that the trial court granted Ross’s motion without making specific findings of fact, while this trial court granted Gray’s motion and made specific findings of fact. We think those findings permitted the court of appeals to review the ruling without infringing on the trial court’s discretion to determine the facts.

Evidence and Findings

Michael Doyle Gray was indicted for possessing methamphetamine in the amount of at least 4 grams, but less than 200 grams, on or about April 3, 2003. He filed a “Motion to Suppress Illegally Seized Evidence,” which the district court granted after hearing evidence.

The only witness at the hearing on the motion to suppress evidence was Sergeant Tony Duncan, a deputy sheriff. He had been told by Investigator Parker that a confidential informant said that Gray would be transporting “narcotics” in a certain area of the county. Duncan and another deputy drove to a parking lot from which they could see an intersection at which they expected Gray to appear. Gray drove up to the intersection, stopped at the stop sign, and turned right without signaling his intention to turn. Duncan decided to stop Gray. Gray consented to two searches of his vehicle. After the first search found nothing, a drug dog was called to the scene from another police agency 16 miles away, and the dog alerted to the truck. The officers searched it again, and found nothing. The searches consumed an hour.

The officers decided to make a custodial arrest of Gray for failing to signal a turn. The six bases of the decision to arrest were that Gray appeared surprised when he saw the officers, he raised up off the seat and did a lot of wiggling before he pulled over for the traffic stop, he was nervous instead of being cocky as usual, he walked “kind of squinched up” as though something was between his buttocks, the drug dog alerted to the presence of drugs yet none were found in searching the vehicle without searching Gray, and after being told that he would be arrested he offered to cooperate by being an informant.

The trial court entered a written ruling:
The facts are not disputed:
1. Based upon a tip that Gray possessed drugs, the Sheriffs Department engineered a pretext detention of Gray.
2. Gray failed to signal at a stop sign.
3. Sheriffs Department made a stop and detained Gray.
4. Gray gave consent to search his vehicle.
5. The vehicle was searched twice.
6. After an hour detention, Sheriffs Department arrested Gray for the traffic violation; but, the reason for the traffic arrest related back to the pretext, namely drug possession. See the Exhibit attached hereto.
7. After Gray’s arrest, drugs were found on this person
It appears to the Court that the State wants its cake and wants to eat it too. The State wants to hide behind the non-relevance of the pretext for the stop but, then use the pretext offensively to continue to detain Gray for an hour after the grounds for the arrest (the traffic violation) were perfected.
There is no evidence in the record to support the “probable cause” of the pretext.
Duncan answered, "Due to the way he was acting, the movement in the vehicle prior to the stop, the dog alerting on the vehicle without anything being found, we went ahead — I went ahead and arrested him for the fail to signal turn.”
There is no evidence in the record to support Gray having committed any offense independent of the pretext that could justify the continued detention.
The Court grants Gray’s Motion to suppress.
The Court directs [defense counsel] to prepare the proper order and submit it to the Court.
Court of Appeals’ Opinion
The court of appeals said:
To determine whether an investigative detention is reasonable under the Fourth Amendment, we make the following two inquiries:
1) Whether the officer’s action was justified at its inception; and
2) Whether it was reasonably related in scope to the circumstances which justified the interference in the first place.
Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968).
With reference to the second inquiry under Terry, we review the record to determine whether there is sufficient evidence in the record to support Gray’s continued detention.

The court of appeals found “at least six articulable facts and circumstances stated by [the officers]” as reasonable suspicion for a continued detention; these were the six bases for the decision to arrest Gray for the traffic offense. “Therefore we hold that the second inquiry under Terry must also be answered in the affirmative.”

Discussion

Gray argues:
In reaching its decision, the Court of Appeals engaged in their own factual review in determining the credibility of the witnesses and their testimony and did not view the evidence in the light most favorable to the court’s ruling. The six factors that were relied on by the Court of Appeals were never mentioned by the trial court’s [ruling] stating that it was granting the Motion to Suppress. Furthermore, the trial court had previously held that there was no evidence in the record to support the probable cause of the pretext nor evidence in the record to support Gray having committed any offense independent of the pretext that could justify the detention.

We think the court of appeals correctly interpreted the trial court’s ruling and gave proper deference to its findings of historical fact. The trial court’s first finding is important: “The facts are not disputed.”

Gray misreads the trial court’s “never mentioning]” the six articulable circumstances, and its ruling, “There is no evidence in the record to support the ‘probable cause’ of the pretext.” There certainly was evidence in the record that, if believed, showed (1) that Gray committed a traffic offense, and (2) that the six bases, or articulable circumstances, had been observed by the deputies. If the trial court had not found these were facts, we do not think it would have said, “The facts are not disputed.”

We think the correct reading of the ruling, “There is no evidence in the record to support the ‘probable cause’ of the pretext,” is that, although the facts were as the deputy testified, they did not amount to probable cause to arrest. That is a question of application of law to facts which, as we said in Guzman, an appellate court may make de novo if it respects the trial court’s findings of the historical facts. The court of appeals did respect the trial court’s findings in this regard, although it differed with the trial court (as it was authorized to do) on the legal consequences of the facts.

The court of appeals’ opinion mentioned some legal consequences of investigative detentions, and there are others that further buttress its decision. The undisputed fact that an officer saw Gray commit the offense of turning without signaling his intention gave the officer probable cause to believe he had committed an offense under the Rules of the Road statutes. Code of Criminal Procedure Article 14.01(b) says, “A peace officer may arrest an offender without a warrant for any offense committed in his presence or within his view.” More specifically, Section 543.001 of the Transportation Code says, “Any peace officer may arrest without warrant a person found committing a violation of this [Rules of the Road] subtitle.” Such an arrest for a minor traffic offense is not an unreasonable seizure under the Fourth Amendment. The fact that the officer may have had another subjective motive for seizing Gray would not have made an objectively reasonable seizure unlawful under the constitutions of the United States or of this state. The officer lawfully arrested Gray at that point. Incident to such an arrest the officer could have lawfully searched Gray’s person and the passenger compartment of Gray’s vehicle and the containers in it. The officer who had arrested Gray had discretion to transport him to a magistrate or to release him with a notice to appear in court.

The court of appeals’ decision did not trespass on the trial court’s discretion in finding facts. The judgment of the Twelfth Court of Appeals is affirmed.

      . State v. Gray, 157 S.W.3d 1 (Tex.App.-Ty-ler2004).

      . 32 S.W.3d 853 (Tex.Cr.App.2000).

      . Id., at 855—56 (footnotes omitted) (quoting, and adding bracketed numbers to, Guzman v. State, 955 S.W.2d 85, 89 (Tex.Cr.App.1997)).

      .Attached to the ruling were two pages from Sergeant Duncan's testimony. The prosecutor asked, "What did you base your arrest on?”

      .157 S.W.3d at 6.

        .Id., at 4.

      . Brief, at 5.

      . See Tex. Transp. Code, Title 7, Subtitle C ("Rules of the Road”) § 545.104(a) ("An operator shall use the signal authorized by Section 545.106 to indicate an intention to turn ...”).

      . See Atwater v. City of Lago Vista, 532 U.S. 318, 121 S.Ct. 1536, 149 L.Ed.2d 549 (2000).

      . See Whren v. United States, 517 U.S. 806, 116 S.Ct. 1769, 135 L.Ed.2d 89 (1996).

      . See Crittenden v. State, 899 S.W.2d 668 (Tex.Cr.App.1995).

      . See New York v. Belton, 453 U.S. 454, 101 S.Ct. 2860, 69 L.Ed.2d 768 (1981).

      . See Tex Transe. Code § 542.002 (a person arrested for violating a section of the Rules-of-the-Road subtitle "shall be taken immediately taken before a magistrate” in only three circumstances: the person is arrested on a charge of failure to stop in the event of an accident causing damage, or the person demands an immediate appearance before a magistrate, or the person refuses to make a written promise to appear); id., § 543.003 ("An officer who arrests a person for a violation of this subtitle and who does not take the person before a magistrate shall issue in duplicate a written notice to appear in court ...”); id., § 543.004 (issuance of such a notice is mandatory only if the person charged is a resident of this state and is operating a vehicle that is not registered elsewhere, and the offense charged is speeding or a violation of the open container law).


author: COCHRAN, J.,

text:
    Ronnie HALL, Appellant, v. The STATE of Texas.
    No. PD-0277-04.
    Court of Criminal Appeals of Texas.
    Feb. 16, 2005.

      Nelda Williams, Huntsville, for Appellant.
    Melinda Mayo, special Prosecution Unit, Amarillo, Matthew Paul, State’s Atty., Austin, for State.
   OPINION

COCHRAN, J.,

delivered the opinion of the Court

in which KELLER, P.J., MEYERS, PRICE, WOMACK, JOHNSON, HERVEY and HOLCOMB, JJ., joined.

Appellant, a prison inmate, approached Correctional Officer Mark Enloe in the hallway outside the prison cafeteria. During a heated argument, Officer Enloe pushed appellant towards his cell, and appellant retaliated by punching Enloe in the face. Appellant was charged with the felony of assault on a public servant. At trial, appellant admitted hitting Enloe, but contended that he offered some evidence that Enloe was not “lawfully discharging” his official duties as a correctional officer when he pushed appellant. Therefore, appellant argues, the trial court erred in refusing his request for a jury instruction on the lesser-included offense of misdemeanor assault. The court of appeals affirmed and stated that because Enloe was on duty and acting within his official capacity, appellant failed to offer evidence “that would allow a rational jury to convict Hall of only the lesser-included offense of assault.”

We must decide whether the court of appeals erred in finding that appellant was not entitled to a charge on the lesser-included offense of misdemeanor assault. We agree with appellant that if there is record evidence that demonstrates a public officer is unlawfully discharging his official duties at the time a person assaults him, the defendant is entitled to a lesser-included charge. But because appellant did not offer evidence that Officer Enloe acted “unlawfully,” we affirm the judgment of the court of appeals.

I.

On March 7, 2001, Mark Enloe, a correctional officer at the Ferguson Unit of the Texas Department of Criminal Justice (TDCJ), filed a disciplinary report accusing appellant and his cell-mate, Michael Rocha, of having tobacco in their cell. Approximately one week later, Officer Enloe was on duty near the cafeteria, supervising the inmates’ return to their cells from dinner. Appellant and Rocha approached Enloe and asked him about the “bogus” disciplinary report. According to inmate witnesses, none of whom heard the exact words, appellant and Enloe got into a heated argument. It appeared to the inmates that Enloe did not want to talk and instead wanted appellant to return to his cell block. One inmate testified that he heard Enloe tell appellant to “go on.”

When appellant refused to move, Officer Enloe pushed appellant in the direction of his cell. At trial, a warden testified for the State that if an inmate refuses to enter a cell block, a push towards that block “would be exactly what the employee is supposed to do.” However, other correctional officers testified that this behavior violates TDCJ policy that forbids officers from touching inmates except when necessity dictates. Here, the push was hard enough that appellant stumbled and may have hit his head on a nearby brick wall. In response to what appellant viewed as a personal, “man-to-man” attack, appellant punched Officer Enloe in his face with such force that Enloe collapsed to the ground. At this point, someone yelled “fight,” and other guards came running. By the time these guards reached Enloe, another prisoner had joined in the melée and both were hitting and kicking the unconscious officer. The guards quickly broke up the fight and took Officer Enloe to the infirmary.

Officer Enloe suffered numerous injuries: his eyes were so swollen that he could not see, his lip required sutures, and his mouth was so swollen that he could not eat and had difficulty drinking. He did not return to work for about two weeks.

The trial judge instructed the jury on the general law of self-defense and set out a self-defense application paragraph tailored to the specific situation, but he declined to give an additional instruction on the lesser-included offense of misdemeanor assault. The jury rejected appellant’s self-defense argument and convicted him of the third-degree felony of assault on a public servant. After finding that appellant was an habitual felon, the jury sentenced him to ninety-nine years’ imprisonment.

On appeal, appellant claimed that the trial court erred by refusing to charge the jury on the lesser-included offense. He contended that because Officer Enloe shoved him, Officer Enloe was not “lawfully” discharging his official duties as a public servant. The court of appeals held that, although misdemeanor assault is a lesser-included offense of assault of a public servant, a rational jury could not have found that Officer Enloe was not discharging his duties as a public servant at the time of the assault. The court of appeals stated that:

[A]t the time of the attack, Enloe was on-duty, in uniform, and supervising inmates, Le., acting within his official capacity. Even if Enloe had violated a TDCJ policy, it would not mean that he was not performing an official duty as a public servant for the purposes of this statute.

The court of appeals therefore concluded that the trial court properly refused appellant’s request for the lesser-included charge.

II.

In making the decision on whether a jury should be instructed on a lesser offense, courts apply the two-prong Aguilar/Rousseau test. The first step requires a court to determine whether the lesser offense actually is a lesser-included offense of the offense charged as defined by article 37.09.

Assault of a public servant, as alleged in this case, requires proof of misdemeanor assault plus proof of four additional elements:

1) the person assaulted was a public servant;
2) the actor knew that the person he assaulted was a public servant;
3) the person assaulted was discharging official duties at the time of the assault;
4)the person assaulted was lawfully discharging official duties.

Because the offense of assault of a public servant differs from misdemeanor assault only because it requires proof of additional facts, the first prong of the Aguilar/Rousseau test is satisfied.

However, simply because a lesser offense is included within the proof of a greater offense does not necessarily mean that a jury charge on the lesser offense is warranted. The second prong of the Aguilar/Rousseau test asks whether the record contains some evidence that would permit a rational jury to find that the defendant is guilty only of the lesser-included offense. In other words, there must be some evidence from which a rational jury could acquit appellant of assault on a public servant while convicting him of the lesser-included offense of misdemeanor assault. In making this decision, the court evaluates the evidence in the context of the entire record, but does not consider whether the evidence is credible, controverted, or in conflict with other evidence.

III.

In this case, we must decide whether a rational jury could find appellant guilty of only misdemeanor assault, not assault of a public servant. If there is affirmative evidence in the record that negates one of the four additional elements of assault on a public servant, yet admits the underlying assault, appellant would be entitled to a lesser-included charge of misdemeanor assault. The only element of assault of a public servant that appellant claims that he has affirmatively negated is the element that Officer Enloe was in the “lawful discharge” of his official duties. He asserts that he offered some evidence that Officer Enloe acted “unlawfully” when he pushed appellant in the direction of his cell, and the officer therefore stepped outside the lawful performance of his official duties. Appellant argues that the obvious intent of the legislature “is to allow enhancement only if the public servant is not a wrongdoer, abusing the power of his position at the time of the offense.” In theory, appellant is correct. A correctional officer who tortures, sexually harasses, mutilates or otherwise violates the civil rights of prisoners within his charge while on official duty is not acting in the “lawful discharge” of those duties.

This Court has addressed the general issue of a police officer’s “lawful discharge” of official duties as it relates to a lesser-included charge on several occasions. In doing so, we have repeatedly stated that “as long as the officer was acting within his capacity as a peace officer, he was acting within the lawful discharge of his official duties.” In particular, we have looked at the details of the encounter, such as whether the police officer was in uniform, on duty, and whether he was on regular patrol at the time of the assault. The issue has arisen most frequently in the context of whether the officer was making a “lawful” arrest. As we have concluded in those cases, the “lawful discharge” of official duties in this context, does not mean that the officer has crossed every “t” and dotted every “I” of every duty that relates to his public office. The legislature surely did not intend that a defendant is entitled to a lesser-included instruction of misdemeanor assault if he punches the interrogating police officer because that officer failed to read him his Miranda rights. Or that a defendant is entitled to a lesser-included instruction of misdemeanor assault if he punches a trial judge in the face because the judge failed to admonish him of the maximum range of punishment and therefore was acting “unlawfully” in taking his plea. Rather, the “lawful discharge” of official duties in this context means that the public servant is not criminally or tortiously abusing his office as a public servant by acts of, for example, “official oppression” or “violations of the civil rights of a person in custody” or the use of unlawful, unjustified force.

Furthermore, the Texas Penal Code provides guidelines for when a correctional officer’s use of force is considered “lawful.” Knowing the innate danger in maintaining a correctional facility, the legislature grants correctional officers the right to use reasonable force against an inmate to maintain their own safety, the safety of others, or the security of the prison as a whole. Section 9.53 of the Code states:

An officer or employee of a correctional facility is justified in using force against a person in custody when and to the degree the officer or employee reasonably believes the force is necessary to maintain the security of the correctional facility, the safety or security of other persons in custody or employed by the correctional facility, or his own safety or security.

Thus, if a correctional officer’s use of force falls within the above definition, he is lawfully discharging his official duties, and, if assaulted at this time, the actor is guilty of assault of a public servant rather than mere misdemeanor assault.

rv.

In this case, only if there were some record evidence, from any source, that would show that Officer Enloe was criminally or tortiously abusing his status as a public servant at the time of the assault, would appellant be entitled to a lesser-included instruction. There is no such evidence.

Here, appellant and his cell-mate, upset about what they claim was a “bogus” disciplinary writeup, approached Officer Enloe, who was standing alone in the hall. The discussion quickly turned into a heated argument. Officer Enloe, attempting to end this encounter, told appellant to “move on.” When a verbal warning failed, Enloe pushed appellant towards his cell. Because appellant refused to comply with the verbal order to leave and instead continued to argue, this situation could have easily escalated into a physical fight as, in fact, it did. Officer Enloe’s shove — an attempt to move appellant toward his cell and preserve his own and others’ safety— was well within the scope of his lawful duties. It is clear that section 9.53, justifying the use of force by correctional officers, was intended to prevent precisely what occurred here — Officer Enloe was punched in the face, knocked unconscious, suffered multiple injuries, and was then encircled by other inmates, at least one of whom, Michael Rocha, punched and kicked him until other guards rescued him.

Appellant points to his own testimony that he thought Officer Enloe was not acting within his job description as a correctional officer when Enloe pushed him. He also offered his own testimony and that of other inmates and some guards, of their “understanding” of the “minimum use of force” policy at the prison. But evidence of the violation of internal prison policies and procedures does not suffice to raise a valid, rational conclusion that Officer En-loe was criminally or tortiously abusing his official office or duties at the time of the assault. There is no record evidence that Officer Enloe unjustifiably or maliciously hauled off and pushed or punched a quietly passing inmate who was minding his own business. Appellant instigated the confrontation, and he refused to obey a legitimate order by a correctional officer. Regardless of whether he considered his punch a Hemingway-esque “man-to-man” reaction to Officer Enloe’s push, there is no evidence that would support a rational conclusion that Officer Enloe was not lawfully discharging his official duties at the time appellant punched him.

From an evaluation of the facts in this case, it is clear that the second prong of the Aguilar/Rousseau test is not satisfied. Thus, appellant was not entitled to a lesser-included offense instruction. We affirm the decision of the court of appeals.

KEASLER, J., concurred.

      . Tex. Pen.Code § 22.01(b)(1).

      . Hall v. State, No. 10-02-156-CR, slip op. at 8, 2004 WL 177895, 2004 Tex.App. LEXIS 944 * 11 (Tex.App.-Waco, Jan. 28, 2004) (emphasis in original).

      . Specifically, we granted appellant's two grounds of review:
      (1) The court of appeals erred in finding that the trial court properly refused to give a jury charge on the lesser-included offense of assault: there was evidence that the officer was not "lawfully” discharging his duties at the time of the offense.
      (2) The court of appeals erred in not addressing petitioner’s argument that previous interpretations of penal code section 22.01(b)(1) render a portion of that statute superfluous and fail to effectuate the intent of the legislators.

      . Officer Enloe testified that he never had any argument or conversation with either appellant or Michael Rocha on this day, that he did not push appellant, and would not recognize either man. However, he also testified that he suffered a severe head injury and did not regain consciousness until hours later when he awoke in the prison hospital. It was the testimony of several prisoners and one prison guard that filled in the holes. In particular, Officer Brown, the only guard to see the attack, testified that he heard loud footsteps and turned to see appellant attack Officer Enloe.

      . Hall, slip op. at 8, 2004 WL 177895, at *4, 2004 Tex.App. LEXIS 944 * 10 (citing Sherman v. State, 20 S.W.3d 96, 103 (Tex.App.-Texarkana 2000, no pet.)).

      . Feldman v. State, 71 S.W.3d 738, 750 (Tex. Crim.App.2002).

      . Tex.Code Crim. Proc. art. 37.09; see Feldman, 71 S.W.3d at 750; Rousseau v. State, 855 S.W.2d at 672; Aguilar v. State, 682 S.W.2d 556, 558 (Tex.Crim.App. 1985).

      . Section 22.01(b)(1) provides two statutorily distinct ways of committing felony assault on a public servant, assault while the public servant is performing an official duty or assault in retaliation for the performance of an official duty. Tex. Pen.Code § 22.01(b)(1).

      . Tex. Pen.Code § 22.01(b)(1).

      . Aguilar, 682 S.W.2d at 558.

      . Schweinle v. State, 915 S.W.2d 17,18 (Tex. Crim.App.1996); Rousseau, 855 S.W.2d at 672; Royster v. State, 622 S.W.2d 442, 444 (Tex.Crim.App.1981).

      . Bignall v. State, 887 S.W.2d 21, 23 (Tex. Crim.App.1994).

      . Havard v. State, 800 S.W.2d 195, 216 (Tex. Crim.App.l990)(op. onreh'g).

        . Guerra v. State, 771 S.W.2d 453, 461 (Tex. Crim.App.1988); Montoya v. State, 744 S.W.2d 15, 29 (Tex.Crim.App.1987), overruled on other grounds by Cockrell v. State, 933 S.W.2d 73, 89 (Tex.Crim.App.1996). In Montoya, the defendant argued that, because the evidence showed that the police officer was not making a lawful arrest, the officer was not acting in the lawful discharge of his official duty. However, the Court held that the requirement of a lawful arrest was not required to demonstrate that the officer was acting within the lawful discharge of his official duties. Id.

      Using similar reasoning in Hughes v. State, 897 S.W.2d 285, 298 (Tex.Crim.App.1994), we held that whether the officer’s traffic stop of appellant was constitutionally reasonable "is not relevant to determining if [the police officer] was acting in the lawful discharge of his duties.” Id. at 298 (quoting Montoya 744 S.W.2d at 29).

      . See Hughes, 897 S.W.2d at 297-98; Guerra, 111 S.W.2d at 460-61.

      . See Montoya, 744 S.W.2d at 29-30 (even if police officer was making an "unlawful” arrest at the time defendant shot him, no evidence supported submission of lesser-included offense of murder in capital-murder prosecution; concluding that "evidence that the peace officer was making an arrest which was in excess of his authority does not dispute or challenge the allegation that the officer was acting in the lawful discharge of an official duty”).

      . With respect to appellant’s self-defense instruction, the conscientious trial judge instructed the jury that " 'unlawful' means criminal or tortious or both and includes what would be criminal or tortious but for the defense not amounting to justification or privilege.”

      . See Tex Pen.Code §§ 39.03, 39.04.

      . Johnson v. Peterson, 799 S.W.2d 345, 347 (Tex.App.-Houston [14th Dist.] 1990, no writ).

      . Tex. Pen.Code § 9.53.

      . The trial judge appropriately included a jury instruction on section 9.53.

      . See, e.g., Sherman v. State, 20 S.W.3d 96, 102-03 (Tex.App.-Texarkana 2000, no pet.) (defendant charged with assault on a correctional officer was not entitled to submission of lesser-included charge on misdemeanor assault based upon testimony that prison officer repeatedly cursed defendant and that use of profanity by a guard against an inmate violates TDC policy; concluding that "[e]ven if [officer] violated a TDC policy, this does not mean that he was not performing an official duty as a public servant for the purpose of this statute”).


author: PRICE, J.,

text:
    Shantee D. HAYWARD, Appellant, v. The STATE of Texas.
    No. PD-2081-03.
    Court of Criminal Appeals of Texas.
    March 2, 2005.

      Jerome Godinich, Jr., Houston, for Appellant.
    Donald W. Rogers, Jr., Asst. District Atty., Houston, Matthew Paul, State’s Atty., Austin, for State.
   OPINION

PRICE, J.,

delivered the opinion of the Court,

in which MEYERS, WOMACK, JOHNSON, KEASLER, HERVEY, HOLCOMB, and COCHRAN, JJ., joined.

The State charged the appellant with committing murder by stabbing the victim. The appellant requested a lesser-included offense instruction for assault because she said in a statement that she had only hit the victim with her fists and wrestled with him. We hold that the trial court did not err in denying the appellant’s request because an assault using fists is not a lesser-included offense of murder by stabbing.

I. Pacts

Jonas Onwuchuruba, the appellant’s ex-husband, was found stabbed to death in his home. The appellant’s car fit the description of the car that a witness saw speeding away from the scene of the killing. The police arrested the appellant on a parole violation and questioned her about the stabbing.

At first, the appellant claimed that she did not know of the victim’s whereabouts or when she had seen him last. Later, she admitted that she, her boyfriend, and a man known to her as Chop had been at his home on the day that he was killed. When the victim refused to give the appellant money for drugs, she wrestled with him and hit him with her fists. The appellant’s boyfriend also wrestled with him. The appellant said that, when the victim got away from them, Chop attacked him with a knife. According to the appellant, she and her boyfriend left the scene while Chop was still stabbing the victim.

The State indicted the appellant for the murder. At the end of the guilt phase of the trial, the appellant requested that a lesser-included offense instruction for assault be included in the jury charge. The trial court denied the request.

On direct appeal, the appellant complained that the trial court erred in failing to give the lesser-included offense instruction for assault. The Court of Appeals reversed the conviction, holding that assault is a lesser-included offense of murder under Code of Criminal Procedure Article 37.09 and that the record contained evidence that, if the appellant was guilty, she was guilty only of assault. We granted the State’s petition for discretionary review.

II. The Law

Upon request, a lesser-included offense instruction should be included in the jury charge if (1) the requested charge is for a lesser-included offense of the charged offense and (2) there is some evidence that, if the defendant is guilty, she is guilty only of the lesser offense.

Lesser-included offenses, in this context, are defined in Code of Criminal Procedure Article 37.09. That provision defines lesser-included offenses in terms of the offense charged.

(1) it is established by proof of the same or less than all the facts required to establish the commission of the offense charged;
(2) it differs from the offense charged only in the respect that a less serious injury or risk of injury to the same person, property, or public interest suffices to establish its commission;
(3) it differs from the offense charged only in the respect that a less culpable mental state suffices to establish its commission; or
(4) it consists of an attempt to commit the offense charged or an otherwise included offense.

When we review a trial court’s decision to deny the request, we consider the charged offense, the statutory elements of the lesser offense, and the evidence actually presented at trial. More specifically, we examine the statutory elements of the charged offense as modified by the indictment. Next, we examine the elements of the offense claimed to be a lesser-included offense to see if the elements are functionally the same as or less than those required to prove the charged offense. Then we examine the evidence actually presented to prove the elements of the charged offense to see if that proof also shows the lesser-included offense.

In Campbell v. State, we elaborated and explained that double-jeopardy principles are applicable in the context of a lesser-included offense analysis. The critical elements of the charging instrument, including time, place, identity, and manner and means, are relevant to the inquiry of whether one offense includes another for double jeopardy purposes and for purposes of lesser-included offense instructions.

III. Analysis

In this case, the appellant was charged with murder. The relevant part of the statute requires that the State prove that a person intended to cause serious bodily injury and committed an act that was clearly dangerous to human life and caused the death of the victim. The indictment alleged that the appellant intentionally caused serious bodily injury and caused the death of the victim by stabbing him with a knife or a piece of glass.

A person commits an assault if she intentionally, knowingly, or recklessly (1) causes bodily injury to another, (2) threatens another with imminent bodily injury, or (3) causes physical contact with another when the person knows or should reasonably believe that the other will regard the contact as offensive or provocative. Subsection (1) applies to this case: The appellant alleged that she wrestled with the victim and hit him with her fists causing bodily injury.

It is possible, under the right set of circumstances, for the statutory elements of assault to be included within a murder because the two offenses could have the same culpable mental state and bodily injury can be a subset of serious bodily injury. But this is not such a case. The State alleged that the appellant stabbed the victim with a knife or a piece of glass. The appellant claimed that she wrestled with the victim and hit him with her fists. Hitting with fists could be a lesser-included offense of murder, but not as the murder was charged in this case.

The appellant argues that, because there are many similarities between the offense charged and the lesser-included offense that she claims to have committed, she was entitled to the lesser-included offense instruction. She says that the time, place, and alleged actor are the same. She argues that the manner and means is only one of several factors to be considered. Specifically she says that, “simply because the appellant’s hand is empty one moment and might have contained a knife the next does not make the two offenses completely separate offenses.”

The evidence at trial showed that the victim had been stabbed over fifty times with either a knife or a piece of glass. The appellant claimed that she caused bodily injury to the victim by wrestling with him and hitting him with her fists, and thus, was guilty only of assault. But, in her statement admitted during the trial, she did not say that she had held or used a knife at any point during the attack. She claimed to have hit the victim with her fists.

In this case, the main issue was identity. The State claimed that the appellant stabbed the victim with a knife or a piece of glass. The appellant claimed that a man known to her as Chop stabbed the victim with a knife. Whether the appellant assaulted the victim with her fists on this or some other occasion was not an issue that was included in the indictment. In other words, under this indictment, the State could not have secured a valid conviction for the assault that the appellant alleges she committed.

Because the conduct that the appellant alleged was not included within the conduct charged in the indictment, the trial court did not err in failing to give the lesser-included offense instruction. We reverse the Court of Appeals’s judgment and remand the case to that Court to address the appellant’s other points of error.

KELLER, P.J., concurred in the result.

      . The evidence at trial indicated that the police were unable to locate anyone known as Chop.

      . The appellant also requested lesser-included offense instructions for manslaughter, negligent homicide, and deadly conduct. On appeal, the appellant did not complain about the denial of these requests.

      . Hayward v. State, 117 S.W.3d 5, 14 (Tex. App.-Houston [14th Dist.] 2003).

      . Jacob v. State, 892 S.W.2d 905, 907 (Tex. Crim.App.1995).

      . Tex.Code Crim. Proc. Art. 37.09 (emphasis added).

      . Jacob, 892 S.W.2d at 907-08.

      . Id., at 908.

      . Ibid.

      . Ibid.

      . Campbell v. State, 149 S.W.3d 149, 155 (Tex.Crim.App.2004).

      . Ibid.

      . Tex Pen.Code § 19.02(b).

      . Tex. Pen.Code § 19.02(b)(2).

      . The indictment specifically charged that the appellant did
      unlawfully intend to cause serious bodily injury to [the complainant] and did cause the death of the Complainant by intentionally and knowingly committing an act clearly dangerous to human life, namely by stabbing the Complainant with a deadly weapon, namely a knife.
      [and appellant] did ... unlawfully intend to cause serious bodily injury to [the complainant] and did cause the death of the Complainant by intentionally and knowingly committing an act clearly dangerous to human life, namely by stabbing the Complainant with a deadly weapon, namely a piece of glass.

      . Tex Pen.Code § 22.01(a).


author: KEASLER, J.,

text:
    Charles Dean HOOD, Appellant, v. The STATE of Texas.
    No. AP-75027.
    Court of Criminal Appeals of Texas.
    March 2, 2005.

      T. Scott Smith, Sherman, for Appellant.
    Jeffrey Garon, Asst. District Attorney, McKinney, Matthew Paul, State’s Atty., Austin, for State.
   OPINION

KEASLER, J.,

delivered the opinion of the Court

joined by KELLER, P.J., and PRICE, WOMACK, JOHNSON, HERVEY, HOLCOMB, and COCHRAN, JJ.

Charles Dean Hood was convicted of capital murder and was sentenced to death. He filed a motion for forensic DNA testing, which the trial court denied. Hood appeals, arguing that the trial judge erred in various respects. We disagree and affirm the trial court’s judgment.

Facts

In the fall of 1989, [Hood] was living with his boss, Ronald Williamson, and his boss’ girlfriend, Trade Wallace (the two victims in this case). On November 1, 1989, [Hood] was scheduled to report to work at 12:30 p.m. At 11:30 a.m., [Hood]’s boss came home for lunch and found a note allegedly from his girlfriend saying that she had gone jogging. However, Williamson apparently suspected something was wrong since Trade's name was misspelled on the note. Williamson called the police and told them that he believed that his girlfriend had been abducted. After the police arrived at the victims’ house, they found both Williamson and Wallace dead with gunshot wounds to their heads. [Hood]’s fingerprints were found on the “girlfriend’s” note, on garbage bags that had covered her dead body, and on documents that had been taken from his boss’ safe. [Hood] was also later found to be in possession of several items of Williamson’s property.

Procedural History

Hood filed a motion for DNA testing on May 19, 2004. In it, he requested testing of eight different items: a tan jacket, two pillowcases, a pair of jeans, a T-shirt, a black jacket, a comforter, and a sponge. He attached to his motion an anonymous letter from a “Concerned Citizen” sent to the Collin County District Attorney in May 2003. The letter implies that Hood is innocent of the crime.

The State filed its response and proposed findings on August 23, 2004. The trial judge denied Hood’s motion on August 25 and signed the State’s proposed findings on September 8. The judge made the following findings:

• All eight items exist and are available for testing.
• Identity was an issue in the case.
• Hood must establish by a preponderance of the evidence that he would not have been convicted if exculpatory results had been obtained through DNA testing.
• Testing of the items could not provide results that could exculpate Hood.
• Hood would have been convicted even if evidence of forensic DNA testing had been presented at trial.
• Hood has not met his burden to show that he is seeking genetic testing for any reason other than to delay the execution of his sentence.

Two days later, Hood filed his own proposed findings and notice of appeal.

Analysis

In his first point of error, Hood argues that the trial judge applied the wrong burden of proof. He complains that the judge required him to establish “by a preponderance of the evidence that he would not have been convicted if exculpatory results had been obtained through DNA testing.” According to Hood, applying this burden of proof required him to “actually establish” that he would not have been convicted. But, Hood argues, he should have been required to prove only a “probability” that he would not have been convicted.

Hood’s argument fails because he relies on an outdated version of the statute. The former version of Art. 64.03 required a convicted person to establish by a preponderance of the evidence that “a reasonable probability exists that the person would not have been prosecuted or convicted if exculpatory results had been obtained through DNA testing.” But the Legislature amended the statute effective September 1, 2003. The statute now requires a convicted person to establish by a preponderance of the evidence that “the person would not have been convicted if exculpatory results had been obtained through DNA testing.” The current statute applies to cases in which the DNA motion was filed after the statute’s effective date. Hood’s motion was filed May 19, 2004. The trial judge therefore applied the correct statute and the correct burden of proof.

Additionally, Hood is mistaken that this burden of proof requires him “to actually establish” that he would not have been convicted. The statute is clear that the burden of proof is preponderance of the evidence. Hood’s first point of error is overruled.

In his second and third points, Hood contends that the trial judge erred in finding that DNA results would not be exculpatory and that he would have been convicted even with DNA testing. Hood claims that the evidence of his fingerprints at the home is not persuasive because he lived at the home. He argues that there was also evidence of unknown fingerprints in the home and that the murder weapon was never found. Hood argues that Andrew “Andy” Yourston, Wallace’s former boyfriend, had a motive for killing the two. Additionally, the “concerned citizen” letter suggests that the killer was named “Randy,” which is close to “Andy.”

We reject Hood’s argument because the evidence at trial conclusively established Hood’s guilt. In addition to the evidence mentioned above, there was evidence that:

• On the morning of the offense, Hood purchased flowers, using Williamson’s credit card and wearing the watch that Williamson usually kept locked in his safe.
• When Williamson called 911, he was talking to Hood during the phone call; Hood’s voice could be heard responding.
• Four minutes later, when the police responded, Williamson was dead and Hood was no longer on the premises.
• Tracing Williamson’s credit card, the police discovered that Hood was en route to Indiana to visit the woman to whom he sent the flowers.
• Hood stopped to cash two of Williamson’s business checks that he forged to himself, and to pawn one of Williamson’s rings.
• Hood arrived in Indiana in Williamson’s car, in which were many other items stolen from Williamson’s house.

Even if DNA tests revealed the blood of another individual at the crime scene— even Andrew Yourston — that evidence would at most establish that Hood acted with someone else in committing the crime. Hood’s bloody fingerprints were found on the door to the room where Wallace’s body was found and on the trash-bags in which her body was wrapped. His fingerprints were on the note purportedly left by Wallace. These are not the fingerprints of someone who just happened to be living at the house; these are fingerprints demonstrating involvement in the crime. Hood’s voice was on the 911 tape recorded minutes before Williamson’s death, and Hood was then nowhere to be found when the police arrived. Hood was later apprehended in Indiana after leaving a trail of purchases with Williamson’s credit card and possessing numerous items from the home, including Williamson’s car. Hood fails to establish by a preponderance of the evidence that he would not have been convicted if exculpatory results had been obtained through DNA testing. We overrule Hood’s second and third points of error.

In his fourth and final point of error, Hood argues that the trial court erred in finding that his only reason for seeking DNA testing was to delay the execution of his sentence. We have already concluded that Hood fails to establish by a preponderance of the evidence that he would not have been convicted if exculpatory results had been obtained through DNA testing. As a result, he cannot establish that the trial judge erred in denying his motion for DNA testing. We therefore need not decide whether his motion was made to unreasonably delay the execution of his sentence. Hood’s fourth point of error is overruled.

Conclusion

The trial court did not err in denying Hood’s motion for forensic DNA testing. We affirm the trial court’s order.

MEYERS, J., did not participate.

      . Hood v. State, No. 71,167, slip op. at 1 (Tex.Crim.App. Nov. 24, 1993) (not designated for publication).

      . Acts 2001, 77th Leg., R.S., ch. 2, § 2, eff. April 5, 2001.

      . Acts 2003, 78th Leg., ch. 13, § 3, eff. September 1, 2003.

      . Tex.Code Crim. Proc. Art. 64.03(a)(2) (Vernon Supp.2004).

      . Acts 2003, 78th Leg., ch. 13, § 8, eff. September 1, 2003.