Anthony Gene Dunn v. the State of Texas

In the
Court of Appeals
Sixth Appellate District of Texas at Texarkana

No. 06-24-00193-CR

ANTHONY GENE DUNN, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 30th District Court
Wichita County, Texas
Trial Court No. DC30-CR2024-0153

Before Stevens, C.J., van Cleef and Rambin, JJ.
Memorandum Opinion by Justice Rambin
MEMORANDUM OPINION

A Wichita County1 jury found Appellant, Anthony Gene Dunn, guilty of possession of

methamphetamine in an amount less than one gram, a state jail felony. See TEX. HEALTH &

SAFETY CODE ANN. §§ 481.102(6), 481.115(a)–(b) (Supp.). After finding both punishment-

enhancement allegations true, the jury assessed a punishment of ten years’ imprisonment. See

TEX. PENAL CODE ANN. § 12.425(a). On appeal, Dunn argues that, (1) during the

guilt/innocence phase, the trial court erred in admitting evidence of extraneous offenses and (2)

during the punishment phase, his trial counsel was ineffective for failing to call witnesses. The

State acknowledges in a cross-point that there is no evidence supporting enhancement because

the alleged enhancements were not sentences of confinement, as is required for enhancement, but

instead were suspended sentences. Because no error occurred in the admission of the extraneous

offense, we affirm Dunn’s conviction. We reverse and remand for a new punishment trial due to

insufficient evidence supporting the enhancements.

I. Background

In December 2023, James Lindeman, an officer with the Wichita Falls Police Department

(WFPD), initiated a traffic stop of a bicyclist riding in a roadway without a light affixed to his

bicycle. See TEX. TRANSP. CODE ANN. § 551.104(b)(1), (2)(B). Lindeman determined that the

bicyclist was Dunn and that Dunn had a pending arrest warrant. Lindeman arrested Dunn.

During the search incident to arrest, Lindeman found a syringe containing a liquid that he

1
This appeal was transferred to this Court from the Second Court of Appeals pursuant to a Texas Supreme Court
docket equalization order. See TEX. GOV’T CODE ANN. § 73.001 (Supp.). Accordingly, we apply the precedent of
the Second Court of Appeals in deciding this case to the extent that it conflicts with our own. See TEX. R. APP. P.
41.3.
2
believed was methamphetamine.2 After finding the syringe, Lindeman said that Dunn became

sad, looked down, and “started to hang his head.” After Dunn was placed in the patrol vehicle,

Dunn said that this was going to ruin his career and leave him homeless. Lindeman asked Dunn

if the substance was methamphetamine, and Dunn said, “[Y]eah.” Officer Kyle Panter, with the

WFPD, also found unused syringes in Dunn’s backpack.

At trial, the jury found Dunn guilty of possession of methamphetamine in an amount less

than one gram, a state jail felony. After the punishment phase, the jury found Dunn had

previously been convicted of two state jail felonies and assessed a punishment of ten years’

imprisonment.

II. Admission of Extraneous Offenses

Dunn argues that, during the guilt/innocence phase, the trial court erred by admitting two

extraneous offenses from a separate traffic stop in 2022, which Dunn contends should have been

excluded under Rules 403 and 404(b).

In 2022, an officer attempted to pull Dunn over while he was driving a motorcycle. Dunn

fled, and the officer pursued him. When the officer caught Dunn, he discovered

methamphetamine in Dunn’s jacket pocket. Dunn told the officer about the methamphetamine

when he began his pat-down.

In this case, the trial court admitted evidence of the 2022 convictions of evasion-of-arrest

and possession, but it excluded evidence that the motorcycle had been stolen. Dunn contends

that the 2022 convictions were not admissible under Rule 404(b) and were more prejudicial than

2
At trial, Danielle Weems, with the Texas Department of Public Safety (DPS) Crime Laboratory in Abilene, Texas,
testified that the substance was .09 grams of methamphetamine.
3
probative under Rule 403. The State contends that evidence of the 2022 convictions was

admissible to rebut Dunn’s theory that, in his 2023 arrest, Dunn did not know that he had

methamphetamine in his pocket.

Dunn did not urge a Rule 403 objection in the trial court. Therefore, we find that Dunn’s

argument on appeal is unpreserved. See Wood v. State, 693 S.W.3d 308, 323 (Tex. Crim. App.

2024). Accordingly, we will only address Dunn’s Rule 404(b) extraneous-offense argument.

A. Standard of Review

“[A] trial court’s ruling on the admissibility of extraneous offenses is reviewed [for] an

abuse-of-discretion.” Irsan v. State, 708 S.W.3d 584, 622 (Tex. Crim. App. 2025) (quoting De

La Paz v. State, 279 S.W.3d 336, 343 (Tex. Crim. App. 2009)). An appellate court must uphold

a trial court’s ruling if the record reasonably supports it and is correct under any theory of law

applicable to the case. See id. “An appellate court will not reverse a trial court’s ruling [to admit

evidence] unless that ruling falls outside the zone of reasonable disagreement.” Burden v. State,

55 S.W.3d 608, 615 (Tex. Crim. App. 2001). The Texas Court of Criminal Appeals has

explained,

A trial court’s ruling is generally within th[e] zone if the evidence shows that
1) an extraneous transaction is relevant to a material, non-propensity issue, and
2) the probative value of that evidence is not substantially outweighed by the
danger of unfair prejudice, confusion of the issues, or misleading of the jury.
Furthermore, if the trial court’s evidentiary ruling is correct on any theory of law
applicable to that ruling, it will not be disturbed even if the trial judge gave the
wrong reason for his right ruling.

De La Paz v. State, 279 S.W.3d 336, 344 (Tex. Crim. App. 2009) (footnote omitted) (citation

omitted).

4
All relevant evidence is admissible unless it is excluded by law. TEX. R. EVID. 402.

“Evidence is relevant if . . . it has any tendency to make” the existence of any “fact [that] is of

consequence in determining the action” “more or less probable than it would be without the

evidence.” TEX. R. EVID. 401.

Under Rule 404(b), “evidence of other crimes, wrongs, or acts is not admissible ‘to prove

a person’s character in order to show that on a particular occasion the person acted in accordance

with the character.’” Davison v. State, 602 S.W.3d 625, 651 (Tex. App.—Texarkana 2020, pet.

ref’d) (quoting TEX. R. EVID. 404(b)(1)). “But it may ‘be admissible for another purpose, such

as proving motive, opportunity, intent, preparation, plan, knowledge, identity, . . . absence of

mistake, or lack of accident.’” Id. (quoting TEX. R. EVID. 404(b)(2)). “The exceptions listed

under Rule 404(b) are neither mutually exclusive nor collectively exhaustive.” Id. (quoting

De La Paz, 279 S.W.3d at 343). “Rule 404(b) is a rule of inclusion rather than exclusion.” Id.

(quoting De La Paz, 279 S.W.3d at 343). “The rule excludes only that evidence that is offered

(or will be used) solely for the purpose of proving bad character and hence conduct in conformity

with that bad character.” Id. (quoting De La Paz, 279 S.W.3d at 343).

Further, “[e]vidence of a person’s character or character trait is not admissible to prove

that on a particular occasion the person acted in accordance with the character or trait.” TEX. R.

EVID. 404(a)(1). However,

[t]his evidence may be admissible for another purpose, such as proving motive,
opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or
lack of accident. On timely request by a defendant in a criminal case, the
prosecutor must provide reasonable notice before trial that the prosecution intends
to introduce such evidence—other than that arising in the same transaction—in its
case-in-chief.
5
TEX. R. EVID. 404(b)(2); see Moses v. State, 105 S.W.3d 622, 626 (Tex. Crim. App. 2003). “The

exceptions listed under Rule 404(b) are neither mutually exclusive nor collectively exhaustive.”

De La Paz, 279 S.W.3d at 343.

But, when a defendant raises a defensive theory, he “opens the door” for the State to offer

rebuttal evidence regarding an extraneous offense if the extraneous offense has characteristics

common with the offense for which the defendant was on trial. Dabney v. State, 492 S.W.3d

309, 317 (Tex. Crim. App. 2016). Simply stated, “[a]s a general proposition, when a party

introduces matters into evidence, he invites the other side to reply to that evidence.” Wheeler v.

State, 67 S.W.3d 879, 885 n.13 (Tex. Crim. App. 2022) (citing Kincaid v. State, 534 S.W.2d 340,

342 (Tex. Crim. App. 1976)).

B. Preservation of Error

This issue may not have been preserved for appeal. See TEX. R. APP. P. 33.1. Although

Dunn objected in a hearing outside the jury that the extraneous offenses should not be admitted,

see Ethington v. State, 819 S.W.2d 854, 858 (Tex. Crim. App. 1991), the State admitted the

dash- and body-camera footage of both the evading with a vehicle and possession extraneous

offenses. See Mitchell v. State, 68 S.W.3d 640, 643 (Tex. Crim. App. 2002). Even though Dunn

was not required to object to the testimony, the dash- and body-camera footage was separate

evidence that was not addressed during the hearing outside of the jury, and Dunn did not request

a running objection. See Ethington, 819 S.W.2d at 858.

For purposes of this appeal, we will assume without deciding that Dunn’s complaints

have been preserved.

6
C. Analysis

Dunn argues that the trial court erred in admitting two prior unadjudicated extraneous

offenses: (1) possession of methamphetamine and (2) evading arrest or detention with a vehicle.

Both incidents occurred during the same prior episode, approximately one year before the

charged offense. The trial court, however, excluded a contemporaneous unauthorized use of a

motor vehicle (i.e., the motorcycle in the 2022 incident was stolen).

1. Extraneous Possession

a. The State Opened the Door to the Introduction of Extraneous
Offenses

A “defensive theory raised in voir dire and opening statements open[s] the door to

. . . extraneous-offense evidence presented by the State and the State [i]s not required under Rule

404(b) to provide notice of such rebuttal evidence.” Dabney, 492 S.W.3d at 318.

Throughout the trial, from jury selection through closing arguments, Dunn maintained a

defensive theory of unknowing possession. During jury selection, Dunn presented hypothetical

scenarios illustrating unknowing possession: possessing a stolen pencil without knowledge it

was stolen; a wife unknowingly possessing a knife at a concert while wearing her husband’s

jacket; and possession of marihuana in a borrowed purse. During opening statements, Dunn

stated that he did not know the methamphetamine was in his pocket. He cross-examined

Lindeman and others witnesses about whether Dunn knew the syringe was in his pocket and

asked questions related to ownership versus possession. That established Dunn’s defensive

theory and allowed the State to introduce extraneous offenses to provide the jury with a full and

accurate picture.

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b. The Extraneous Possession Was Relevant to Prove Intent and
Knowledge

The extraneous possession offense arose from a traffic stop in 2022 conducted by

Brandon Ward, a trooper with the DPS. The stop was initiated due to a motorcycle emitting an

illegal light. After Ward attempted to stop the vehicle, Dunn fled and subsequently “crashed

out.” Following Dunn’s arrest, Ward found methamphetamine and a needle in Dunn’s pants

pocket. Dunn told the officer about the methamphetamine when he began his pat down. Sarah

McGregor, with the DPS Crime Laboratory in Abilene, Texas, testified that the substance Ward

found was 0.35 grams of methamphetamine HCL.

“When the defendant’s intent to commit the offense charged is at issue, the relevance of

an extraneous offense derives from the doctrine of chances—the instinctive recognition of that

logical process which eliminates the element of innocent intent by multiplying instances of the

same result until it is perceived that this element cannot explain them all.” Brown v. State, 96

S.W.3d 508, 512 (Tex. App.—Austin 2002, no pet.); see Dabney, 492 S.W.3d at 317 (“[T]he

‘doctrine of chances’ tells us that highly unusual events are unlikely to repeat themselves

inadvertently or by happenstance,” and that defense can become “less believable” when

defendant has made the same unlikely claim multiple times.). When a defendant claims he did

not knowingly possess contraband, evidence of similar prior drug offenses becomes relevant to

prove knowledge and intent and to rebut claims of mistake or accident. In Gauch v. State, the

Fort Worth Court of Appeals stated, “Gauch’s defensive theory at trial was that he did not know

about and did not possess the methamphetamine pipe found between the driver’s seat and the

center console of his car.” Gauch v. State, No. 02-18-00454-CR, 2019 WL 4010347, at *2 (Tex.
8
App.—Fort Worth Aug. 26, 2019, no pet.) (mem. op., not designated for publication). The prior

extraneous conviction for possession of methamphetamine with the intent to deliver was relevant

“because it made the elemental facts of intent and knowledge more or less probable and tended

to refute Gauch’s defensive theory.” Id.; see also Rogers v. State, No. 06-23-00054-CR, 2023

WL 7554328, at *5–6 (Tex. App.—Texarkana Nov. 15, 2023, no pet.) (mem. op., not designated

for publication) (“[T]he State was allowed to offer evidence in the form of the two extraneous

offenses to rebut [his] defensive theory” and to prove his knowing possession of the drugs.).

2. Extraneous Possession Was Similar

“For the doctrine [of chances] to apply, there must be a similarity between the charged

and extraneous offenses, since it is the improbability of a like result being repeated by mere

chance that gives the extraneous offense probative weight.” Brown, 96 S.W.3d at 512. “The

degree of similarity required, however, is not as great when intent is the material issue as when

identity is the material issue and the extraneous offense is offered to prove modus operandi.” Id.

at 512–13.

The extraneous possession offense shared significant similarities with the charged

offense. See Plante v. State, 692 S.W.2d 487, 493 (Tex. Crim. App. 1985) (“[S]uch a high

degree of similarity is not required when the purpose of the proof is to show intent.”). In both,

Dunn possessed small amounts of methamphetamine on or near his person. Those

commonalities corroborated the witness’s testimony in the offense at issue.

Ward initially attempted to stop the motorcycle for a citation. Ward arrested Dunn for

the evading with a vehicle offense, and, during the search incident to that arrest, Dunn admitted

9
that he had a needle and a vial of methamphetamine in his right front pants pocket. The prior

extraneous possession offense strengthened the fact that Dunn had knowledge of the possession

at issue. See Carter v. State, 145 S.W.3d 702, 708 (Tex. App.—Dallas 2004, pet. ref’d)

(“Evidence of extraneous offenses may be admissible to prove scienter, but only where intent or

guilty knowledge is an essential element of the State’s case and cannot be inferred from the act

itself.”).

Therefore, the trial court did not abuse its discretion in admitting the extraneous

possession offense.

3. Extraneous Evading with a Vehicle

Assuming, but not deciding, that the trial court did abuse its discretion in admitting the

extraneous evading arrest or detention with a vehicle, any potential error was harmless. Error in

admitting evidence concerning extraneous offenses is reviewed under the standard for

nonconstitutional error contained in Rule 44.2(b). Casey v. State, 215 S.W.3d 870, 885 (Tex.

Crim. App. 2007) (finding, under Rule 44.2(b), error in admitting photographs was harmless).

Rule 44.2(b) provides that an appellate court must disregard a nonconstitutional error “that does

not affect” a criminal defendant’s “substantial rights.” TEX. R. APP. P. 44.2(b). An error affects

a substantial right of the defendant “when the error ha[s] a substantial and injurious effect or

influence in determining the jury’s verdict.” King v. State, 953 S.W.2d 266, 271 (Tex. Crim.

App. 1997). Reversible error has not occurred “if the appellate court, after examining the record

as a whole, has fair assurance that the error did not influence the jury, or had but a slight effect.”

10
Motilla v. State, 78 S.W.3d 352, 355 (Tex. Crim. App. 2002) (quoting Johnson v. State, 967

S.W.2d 410, 417 (Tex. Crim. App. 1998)).

The Texas Court of Criminal Appeals has instructed:

In assessing the likelihood that the jury’s decision was adversely affected
by the error, the appellate court should consider everything in the record,
including any testimony or physical evidence admitted for the jury’s
consideration, the nature of the evidence supporting the verdict, the character of
the alleged error and how it might be considered in connection with other
evidence in the case. The reviewing court might also consider the jury instruction
given by the trial judge, the State’s theory and any defensive theories, closing
arguments and even voir dire, if material to appellant’s claim.

Morales v. State, 32 S.W.3d 862, 867 (Tex. Crim. App. 2000); see Motilla, 78 S.W.3d at 355–57

(“overwhelming evidence of guilt” can be a factor).

First, the character of the erroneously admitted evidence weighs in favor of a finding of

harm. “Extraneous-offense evidence is ‘inherently prejudicial, tends to confuse the issues, and

forces the accused to defend himself against charges not part of the present case against him.’”

Sims v. State, 273 S.W.3d 291, 294–95 (Tex. Crim. App. 2008) (quoting Pollard v. State, 255

S.W.3d 184, 187–88 (Tex. App.—San Antonio 2008), aff’d, 277 S.W.3d 25 (Tex. Crim. App.

2009)). “By its very nature, an improperly admitted extraneous offense tends to be harmful. It

encourages a jury to base its decisions on character conformity, rather than evidence that the

defendant committed the offense with which he or she has been charged.” Jackson v. State, 320

S.W.3d 873, 889 (Tex. App.—Texarkana 2010, pet. ref’d). This factor favors a finding of harm.

The remaining factors, however, favor a finding the error did not result in harm. The

evidence for both offenses was overwhelming because Dunn confessed to possession of a

controlled substance in the extraneous offenses, as in this case. Neither offense had weak
11
evidence or credibility issues, neither had “enormous potential for confusing the jury and

enormous potential to encourage the jury to base its decision on character conformity,” id., and

the evidence for each offense was “free from contradictions,” id. at 890.

The State’s emphasis of the extraneous evading was minimal. See id. (“In considering

how the erroneously admitted evidence might be considered in connection with other evidence in

the case, the emphasis of the evidence by the State should be considered.”). Even though the

jury watched the dash-camera footage of the extraneous evading, the State focused on the

extraneous possession to show that Dunn had intent and knowledge of the methamphetamine in

this case. Ward’s testimony of the extraneous evading consisted of approximately three pages

out of approximately 120 pages of testimony presented during guilt/innocence.

Finally, the trial court correctly instructed the jury that the extraneous offense must be

proven beyond a reasonable doubt, instructing it:

The State has introduced evidence that the defendant may have committed
wrongful acts not charged in the indictment. This evidence was admitted only for
the purpose of showing the defendant’s motive, opportunity, intent, preparation,
plan, knowledge, or absence of mistake or accident, if any. You cannot consider
the testimony unless you find and believe beyond a reasonable doubt that the
Defendant committed these acts, if any were committed.

Even if you do find that the defendant committed a wrongful act, you may
consider this evidence only for the limited purpose I have described. You may
not consider this evidence to prove that the defendant is a bad person and for this
reason was likely to commit the charged offense. In other words, you should
consider this evidence only for the specific, limited purpose I have described. To
consider this evidence for any other purpose would be improper.

“Instructions to the jury are generally considered sufficient to cure improprieties that occur

during trial,” and appellate courts “generally presume that a jury will follow the judge’s

12
instructions.” Gamboa v. State, 296 S.W.3d 574, 580 (Tex. Crim. App. 2009). The trial court’s

instructions serve to mitigate any harm that might have resulted from the error in admitting

Ward’s testimony. The jury was instructed that the extraneous offense must have been

established beyond a reasonable doubt, and we will presume the jury followed that instruction.

After reviewing the entire record, we have a fair assurance that the error did not influence

the jury or had merely a slight effect. We conclude that any error in the admission of the

extraneous offense of evading with a vehicle did not result in any harm to Dunn’s substantial

rights.

Therefore, we overrule Dunn’s point of error.

III. Trial Counsel Was Not Ineffective During Punishment Phase

Dunn argues that his trial counsel was ineffective for failing to call witnesses during the

punishment phase.

A. Standard of Review and Applicable Law

The Sixth Amendment to the United States Constitution guarantees an accused the right

to reasonably effective assistance of counsel in criminal prosecutions. U.S. CONST. amend. VI;

Lopez v. State, 343 S.W.3d 137, 142 (Tex. Crim. App. 2011). “In making an assessment of

effective assistance of counsel, an appellate court must review the totality of the representation

and the circumstances of each case without the benefit of hindsight.” Lopez, 343 S.W.3d at 143.

The right to counsel does not mean the right to errorless counsel. Robertson v. State, 187

S.W.3d 475, 483 (Tex. Crim. App. 2006). To show that trial counsel was ineffective, Dunn must

demonstrate that (1) trial counsel’s performance was deficient because it “fell below an objective

13
standard of reasonableness” and (2) “a probability sufficient to undermine confidence in the

outcome” existed that, “but for counsel’s unprofessional errors, the result of the proceeding

would have been different.” Strickland v. Washington, 466 U.S. 668, 688, 694 (1984). “A

reasonable probability [means] a probability sufficient to undermine confidence in the outcome.”

Id. at 694; Thompson v. State, 9 S.W.3d 808, 812 (Tex. Crim. App. 1999). A failure to make a

showing under either prong of the Strickland test defeats a claim for ineffective assistance.

Rylander v. State, 101 S.W.3d 107, 110–11 (Tex. Crim. App. 2003). “The record on direct

appeal is generally insufficient to show that counsel’s performance was deficient.” Prine v.

State, 537 S.W.3d 113, 117 (Tex. Crim. App. 2017). The Strickland test “of necessity requires a

case-by-case examination of the evidence.” Williams v. Taylor, 529 U.S. 362, 382 (2000)

(quoting Wright v. West, 505 U.S. 277, 308 (1992) (Kennedy, J., concurring in judgment)). We

“must look to the totality of the representation, and [our] decision must be based on the facts of

the particular case, viewed at the time of counsel’s conduct so as to eliminate hindsight bias.”

Ex parte Martinez, 330 S.W.3d 891, 901 (Tex. Crim. App. 2011) (orig. proceeding) (citing

Strickland, 466 U.S. at 690). “If trial counsel has not been afforded the opportunity to explain

the reasons for his conduct, we will not find him to be deficient unless the challenged conduct

was ‘so outrageous that no competent attorney would have engaged in it.’” Nava v. State, 415

S.W.3d 289, 308 (Tex. Crim. App. 2013) (quoting Menefield v. State, 363 S.W.3d 591, 593 (Tex.

Crim. App. 2012)).

We apply a strong presumption that trial counsel was competent and presume that

counsel’s actions and decisions were reasonably professional and motivated by sound trial

14
strategy. Jackson v. State, 877 S.W.2d 768, 771 (Tex. Crim. App. 1994). Also, when an

appellate record is silent on why trial counsel failed to take certain actions, “the appellant has

failed to rebut the presumption that trial counsel’s decision was in some way—be it conceivable

or not—reasonable.” Mata v. State, 226 S.W.3d 425, 431 (Tex. Crim. App. 2007); see

Thompson, 9 S.W.3d at 814.

B. Dunn Failed to Meet His Burden of Showing Counsel’s Performance Was
Deficient

Dunn argues generally that trial counsel was ineffective for failing to call witnesses

during the punishment phase. Dunn only claims that “[c]ounsel for Defendant had previously

spoken to punishment witnesses for the Defendant in preparation for calling them as witnesses at

the punishment phase of the trial.” Dunn failed to meet his burden to show ineffective

assistance.

Strickland does not “require defense counsel to present mitigating evidence at sentencing

in every case.” Wiggins v. Smith, 539 U.S. 510, 533 (2003). “To obtain relief on an ineffective

assistance of counsel claim based on an uncalled witness, the applicant must show that [the

witness] had been available to testify and that his testimony would have been of some benefit to

the defense.” Ex parte White, 160 S.W.3d 46, 52 (Tex. Crim. App. 2004) (orig. proceeding).

Dunn did not provide any evidence showing that any potential witnesses were available and

would have benefited him. The record reflects some of trial counsel’s reasoning, but that

reasoning does not include all the relevant details. At trial, trial counsel stated:

Judge, I just wanted to put on the record that I had spoken with Mr. Dunn. That
was obviously yesterday [when Dunn was present for the trial]. We were talking
about punishment witnesses, and I met a couple of them. And we sent our
15
investigator out to make contact and bring them in. However, at this time, I
believe it makes more sense to possibly not bring them in because of the
circumstances . . . . We won’t be bringing, obviously, any of those character
witnesses in at this time.

That limited record suggests counsel strategically decided not to call witnesses based on specific

circumstances—i.e., Dunn failing to return to trial. The record does not reflect whether any

witnesses were available to testify or what testimony they might have offered. Without this

crucial information, we cannot determine that their testimony would have benefited Dunn. Even

so, trial counsel may have reasonably concluded that calling character witnesses for a defendant

who failed to appear in court would damage rather than help his case or that cross-examination

might elicit information harmful to Dunn. See Ex parte McFarland, 163 S.W.3d 743, 757 (Tex.

Crim. App. 2005) (orig. proceeding) (failing to call a witness was not ineffective, even if the

witness would have been beneficial, since that would have allowed the State to cross-examine

the witness about a past violent robbery). Without such a record, Dunn has failed to meet his

burden.3

Therefore, we overrule Dunn’s point of error.

C. State’s Cross-Point

In a cross-point, the State acknowledges that the evidence for the enhancement was

insufficient.4 The judgments entered on their face prove insufficiency of the evidence to support

3
We need not address Strickland’s second prong since it is Dunn’s burden to establish that both prongs are met.
Lopez, 343 S.W.3d at 144.
4
See Mizell v. State, 119 S.W.3d 804, 805, 806 (Tex. Crim. App. 2003) (“We . . . address the question of whether the
State may bring a cross-point in its appellate brief arguing that the defendant’s sentence is illegal when the
defendant appeals his conviction but the State does not file its own notice of appeal. Because we hold that any
court—trial or appellate—may notice, on its own, an illegal sentence and rectify that error, the State was not
16
the enhancements. The first judgment used for enhancement was a possession of cocaine

conviction from Midland County, Texas, on December 6, 2007. That judgment shows that the

trial court revoked the deferred adjudication community supervision, adjudicated Dunn guilty,

and placed him on community supervision. The second enhancement was based on a conviction

from the same day. The second judgment shows that Dunn was convicted of credit card abuse

and was placed on community supervision.

A conviction is only eligible for enhancement if the sentence confines the defendant. See

Donaldson v. State, 476 S.W.3d 433, 438 (Tex. Crim. App. 2015) (“Section 12.425 does not

contain any statutory exception allowing enhancement through the use of conviction resulting in

an un-revoked probation.”). Neither of those judgments ordered confinement, thus the

enhancements are not valid.

Therefore, we sustain the State’s cross-point.

IV. Conclusion

While we affirm Dunn’s conviction, we reverse the trial court’s judgment because it

contains an illegal sentence, and we remand the case to the trial court for a new punishment trial.

See TEX. CODE CRIM. PROC. ANN. art. 44.29(b).

Jeff Rambin
Justice
Date Submitted: April 7, 2025
Date Decided: June 25, 2025
Do Not Publish

obligated to file a notice of appeal before the court of appeals could address that issue. . . . A sentence that is outside
the maximum or minimum range of punishment is unauthorized by law and therefore illegal.” (footnote omitted));
see also Pfeiffer v. State, 363 S.W.3d 594, 600–01 (Tex. Crim. App. 2012).
17