Kenneth George Broderick v. the State of Texas

In The

Court of Appeals

Ninth District of Texas at Beaumont

__________________

NO. 09-24-00167-CR
__________________

KENNETH GEORGE BRODERICK, Appellant

V.

THE STATE OF TEXAS, Appellee

__________________________________________________________________

On Appeal from the 443rd District Court
Ellis County, Texas
Trial Cause No. 48940CR
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MEMORANDUM OPINION

Kenneth George Broderick was indicted for the second-degree felony offense

of aggravated assault with a deadly weapon. Tex. Penal Code Ann. § 22.02(a).1 The

indictment contained eight enhancement paragraphs. Broderick pleaded not guilty.

After a jury trial, the jury found Broderick guilty. In the punishment phase of trial,

1
This case was transferred from the Tenth Court of Appeals pursuant to a
docket equalization order issued by the Supreme Court of Texas. See Tex. Gov’t
Code Ann. § 73.001.
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Broderick pleaded “not true” to the enhancement allegations. The jury found two or

more of the enhancement paragraphs to be “true” and assessed punishment at 30

years confinement.

In a single issue on appeal, Broderick complains that there is insufficient

evidence to support the jury’s finding of true to two of the enhancement paragraphs.

For the reasons discussed below, we affirm the trial court’s judgment as modified

herein.

Background

Broderick was tried in a single trial for two indictments – unlawful possession

of a firearm by a felon and aggravated assault with a deadly weapon. 2 In the present

case, the indictment contained eight enhancement paragraphs, which alleged as

follows:

**PUNISHMENT ENHANCEMENTS**

It is further presented that on or about May 5, 1983, and prior to the
commission of the aforesaid offense, hereinafter referred to as “the
principal offense,” the defendant was finally convicted in Criminal
Action No. F-8103651-U, in the 291st Judicial District Court of Dallas
County, Texas, of the first-degree felony offense of burglary of a
habitation.

2
The jury found Broderick guilty of unlawful possession of a firearm by a
felon and he appeals that decision. Broderick’s appeal of the unlawful possession of
a firearm by a felon charge is docketed as No. 09-24-00166-CR.
2
It is further presented that prior to the commission of the principal
offense but after the conviction in Criminal Action No. F-8103651-U
had become final, the defendant committed and on or about March 24,
1987, was finally convicted in Criminal Action No. F-8694247-N, in
the 195th Judicial District Court of Dallas County, Texas, of the third-
degree felony offense of theft of property.

It is further presented that prior to the commission of the principal
offense but after the convictions in Criminal Action Nos. F-8103651-U
and F-8694247-N had become final, the defendant committed and on
or about January 5, 1989, was finally convicted in Criminal Action No.
F-8868929-L, in the Criminal District Court No. 5 of Dallas County,
Texas, of the second-degree felony offense of burglary of a building.

It is further presented that prior to the commission of the principal
offense but after the convictions in Criminal Action Nos. F-8103651-
U, F-8694247-N, and F-8868929-L had become final, the defendant
committed and on or about September 25, 1990, was finally convicted
in Criminal Action No. F-8881264-S, in the 282nd Judicial District
Court of Dallas County, Texas, of the third-degree felony offense of
forgery.

It is further presented that prior to the commission of the principal
offense but after the convictions in Criminal Action Nos. F-8103651-
U, F-8694247-N, and F-8868929-L had become final, the defendant
committed and on or about September 25, 1990, was finally convicted
in Criminal Action No. F-8985781-M, in the 194th Judicial District
Court of Dallas County, Texas, of the third-degree felony offense of
theft of property.

It is further presented that prior to the commission of the principal
offense but after the convictions in Criminal Action Nos. F-8103651-
U, F-8694247-N, and F-8868929-L had become final, the defendant
committed and on or about September 25, 1990, was finally convicted
in Criminal Action No. F-9033099-M, in the 194th Judicial District
Court of Dallas County, Texas, of the third-degree felony offense of
theft of property.

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It is further presented that prior to the commission of the principal
offense but after the convictions in Criminal Action Nos. F-8103651-
U, F-8694247-N, F-8868929-L, F-8881264-S, F-8985781-M, and F-
9033099-M had become final, the defendant committed and on or about
June 28, 2007, was finally convicted in Criminal Action No. 1119379,
in the 176th Judicial District Court of Harris County, Texas, of the
third-degree felony offense of the theft of property.

Finally, it is presented that prior to the commission of the principal
offense but after the convictions in Criminal Action Nos. F-8103651-
U, F-8694247-N, F-8868929-L, F-8881264-S, F-8985781-M, F-
9033099-M, and 1119379 had become final, the defendant committed
and on or about January 20, 2015, was finally convicted in Criminal
Action No. F-1459782-M, in the 194th Judicial District Court of Dallas
County, Texas, of the third-degree felony offense of theft of property[.]

At the punishment phase of the trial, Broderick pleaded “not true” to all eight

enhancement allegations in the indictment.

Following the entry of Broderick’s pleas, the State introduced Exhibits 83, 97,

98, 99, 100, 101, 102, 103, 104, 105 and 106, which contained documents

evidencing the eight prior convictions alleged in the enhancement paragraphs. These

exhibits were admitted into evidence.

State’s Exhibit 97 contains a certified copy of the judgment and conviction in

cause number F81-3651-PK, which shows that Broderick committed the first-degree

felony offense of burglary of a habitation on March 12, 1981, and was sentenced to

prison for seven years on June 19, 1981 but that the sentence was suspended and he

was placed on probation for a period of seven years. State’s Exhibit 97 also contains

an order revoking probation which shows that Broderick’s probation was revoked,

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his conviction became final on May 5, 1983, and he received a term of five years in

prison.

State’s Exhibit 98 contained a certified copy of the judgment of conviction in

cause number F86-94247-LN, which shows that Broderick committed the third-

degree felony offense of theft on November 1, 1986, and was sentenced to two years

in prison on March 24, 1987. State’s Exhibit 98 also contained a certified copy of

the judgment of conviction in cause number 189890D which shows that Broderick

committed the felony offense of burglary of a building on April 8, 1982, and was

sentenced to five years in prison on May 25, 1983.

State’s Exhibit 99 contained a certified copy of the judgment of conviction in

cause number F88-68929-UL, which shows that Broderick committed the second-

degree felony offense of burglary of a building on August 2, 1988, and was

sentenced to ten years in prison on January 4, 1989.

State’s Exhibit 100 contained a certified copy of the judgment of conviction

in cause number F88-81264-M, which shows that Broderick committed the third-

degree felony offense of forgery on March 19, 1988, and was sentenced to ten years

in prison on September 25, 1990. State’s Exhibit 100 also contained a certified copy

of the judgment of conviction in cause number F89-85781-M, which shows that

Broderick committed the third-degree felony offense of theft on July 23, 1989, and

was sentenced to twenty-five years in prison on September 25, 1990. State’s Exhibit

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100 further contained a certified copy of the judgment of conviction in cause number

F90-33099-M, which shows that Broderick committed the third-degree felony

offense of theft on July 19, 1990, and was sentenced to ten years in prison on

September 25, 1990. Furthermore, State’s Exhibit 100 contained a certified copy of

the judgment of conviction in cause number 1119379, which shows that Broderick

committed the third-degree felony offense of theft on June 2, 2007, and was

sentenced to three years in prison on June 28, 2007.

State’s Exhibit 83 contains a certified copy of the judgment of conviction in

cause number F-1459782-M, which shows Broderick committed the third-degree

felony offense of theft on October 24, 2014, and was sentenced to ten years in prison

on January 20, 2015.

State’s Exhibit 101 contains a certified copy of the judgment of conviction in

cause number 380-80493-01, which shows Broderick committed the state jail felony

offense of theft on December 13, 2000, and was sentenced to twenty months in

prison on September 10, 2001.

State’s Exhibit 102 contains a certified copy of the judgment of conviction in

cause number 137829901010, which shows Broderick committed the state jail

felony offense of theft on February 12, 2013, and was sentenced to six months in

state jail on August 22, 2013.

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State’s Exhibit 103 contains a certified copy of the judgment of conviction in

cause number F-1459729-M, which shows Broderick committed the state jail felony

offense of theft on October 27, 2014, and was sentenced to five months in state jail

on January 20, 2015.

State’s Exhibit 104 contains a certified copy of the judgment of conviction in

cause number F-1659947-S, which shows Broderick committed the state jail felony

offense of theft on November 26, 2016, and was sentenced to sixty days in the county

jail on December 21, 2016.

State’s Exhibit 105 contains a certified copy of the judgment of conviction in

cause number 157142401010, which shows Broderick committed the state jail

felony offense of unauthorized use of a vehicle on November 20, 2017, and was

sentenced to sixth months in state jail on June 14, 2018.

State’s Exhibit 106 contains a certified copy of the judgment of conviction in

cause number 160659001010, which shows Broderick committed the state jail

felony offense of unauthorized use of a vehicle on September 26, 2018, and was

sentenced to one hundred eighty days in state jail on March 25, 2019.

The trial court’s charge to the jury instructed the jury that Broderick has

pleaded “Not True” to the eight enhancements the State alleged in the indictment. It

further instructed the jury that they “must be unanimous as to which allegations in

7
the Enhancement Notice you find ‘True’ beyond a reasonable doubt, if any.” The

charge further instructed the jury:

You are instructed that if you find beyond a reasonable doubt that two
or more [of] the allegations of the Enhancement Notice are “True,” you
will so state in your verdicts and conclude your deliberations in this
cause, and assess the punishment of the Defendant as confinement in
the Texas Department of Criminal Justice for twenty-five (25) years to
ninety-nine (99) years, or Life, and in addition a fine not to exceed
$10,000.

The jury’s verdict stated:

We, the jury, having found the Defendant guilty of the offense of
Aggravated Assault with a Deadly Weapon, as charged in the
indictment, do further find beyond a reasonable doubt that two or more
of the allegations in the Enhancement Notice are TRUE, and we assess
his punishment as confinement in the Texas Department of Criminal
Justice – Institutional division for a term of 30 yrs. In addition, we
assess a fine of $0 ($0-$10,000).

The judgment reflected that there was a finding of “true” on the first

enhancement paragraph and a finding of “true” on the second enhancement

paragraph.

Standard of Review and Applicable Law

In Broderick’s sole issue, he argues that the State failed to prove the offense

dates for the enhancement paragraphs in the indictment and therefore the State could

not prove the sequence of convictions. Moreover, he argues that the offenses alleged

in paragraphs four, five, and six of the indictment are non-sequential felony

convictions occurring on the same date. Because the jury found two of the

8
paragraphs “true” but did not designate which two, Broderick argues if the jury

found paragraphs four, five and six true, then the convictions were non-sequential

and punishment was incorrectly assessed.

In reviewing the sufficiency of the evidence to support a finding that an

enhancement allegation is true, we consider all of the evidence in the light most

favorable to the finding and determine whether a rational trier of fact could have

found the essential elements of the enhancement beyond a reasonable doubt. Wood

v. State, 486 S.W.3d 583, 589 (Tex. Crim. App. 2016). The sufficiency of the

evidence to support an enhancement should be measured by the hypothetically

correct jury charge for the enhancement, as defined by statute. See Roberson v. State,

420 S.W.3d 832, 841 (Tex. Crim. App. 2013); Young v. State, 14 S.W.3d 748, 750

(Tex. Crim. App. 2000).

An individual found guilty of an unenhanced aggravated assault with a deadly

weapon cannot be sentenced to more than twenty years’ imprisonment in the Texas

Department of Criminal Justice. Tex. Penal Code Ann. § 12.33(a). However, if it is

shown on the trial of a felony offense “that the defendant has previously been finally

convicted of two felony offenses, and the second previous felony conviction is for

an offense that occurred subsequent to the first previous conviction having become

final,” then the punishment range is twenty-five to ninety-nine years. Id. § 12.42(d).

9
To properly apply this habitual-offender statute to enhance Broderick’s sentence, the

State must have proven:

(1) the first conviction became final; (2) the offense leading to a later
conviction was committed; (3) the later conviction became final;
and (4) the defendant subsequently committed the offense for which
he presently stands accused.

Hopkins v. State, 487 S.W.3d 583, 586 (Tex. Crim. App. 2016); Roberson, 420

S.W.3d at 839; Jordan v. State, 256 S.W.3d 286, 290-91 (Tex. Crim. App. 2008).

Prima facie proof of a prior conviction is made by the introduction of the prior

judgment and sentence. Davy v. State, 525 S.W.3d 745, 752 (Tex. App.—Amarillo

2017, pet. ref’d). If there is no affirmative evidence in the record showing a plea of

“true” to the enhancement, as here, the State is required to prove these elements

beyond a reasonable doubt. Wood, 486 S.W.3d at 588.

When there is no evidence to show that the offenses were committed and

became final in the proper sequence, the defendant’s sentence may not be enhanced

under section 12.42(d). Roberson, 420 S.W.3d at 839-40. If there is no evidence

proving that the offenses were committed and became final in the proper sequence,

then we must reverse the assessment of punishment and remand for a new

punishment hearing, without conducting any harm analysis. See Jordan, 256 S.W.3d

at 290-93.

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Discussion

Here, the record evidence reflects that the sequence of the alleged prior

convictions did indeed occur in the required order. For example, the first punishment

enhancement was committed on March 12, 1981, and became final on May 5, 1983.

The second punishment enhancement was committed on November 1, 1986, after

the first prior became final, and became final on March 24, 1987. Thus, both offenses

were final before the commission of the instant offense on April 24, 2022.

Broderick’s complaint that the State did not prove the offense dates of the prior

convictions is without merit as each of the State’s exhibits showing the prior

convictions contain an offense date and each such date was after the conviction of

the previous offense became final.

Broderick complains that “[t]he jury charge should have required the jury to

state which enhancement paragraphs it found ‘true’” and that it cannot be determined

whether the judgment comports with the jury’s findings because the judgment states

that the first and second enhancement paragraphs were found “true.” However,

Broderick does not support his argument with appropriate citations to any authorities

and does not adequately explain how his complained of error results in harm. See

Tex. R. App. P. 38.1. Where, as here, a party fails to adequately brief a complaint,

the complaint is waived on appeal. See Swearingen v. State, 101 S.W.3d 89, 100

(Tex. Crim. App. 2003). That said, “The law is that, when a general verdict is

11
returned and the evidence is sufficient to support a finding under any of the

paragraphs submitted, the verdict will be applied to the paragraph finding support in

the facts.” Manrique v. State, 994 S.W.2d 640, 642 (Tex. Crim. App. 1999) (citing

Aguirre v. State, 732 S.W.2d 320 (Tex. Crim. App. 1982)). Here, the jury was

instructed that it “must be unanimous as to which allegations in the Enhancement

Notice [it found] ‘True’ beyond a reasonable doubt, if any[,]” and the evidence is

sufficient to support the jury’s general verdict that two or more of the enhancement

paragraphs are true. Therefore, it matters not which two (or more) paragraphs were

found by the jury to have been true, nor was it error for the trial court to ask the jury

to return a general verdict. See Tex. Code Crim. Proc. Ann. art. 37.07, § 1(a) (“The

verdict in every criminal action must be general.”).

We overrule Broderick’s sole issue. However, in doing so, we note that the

judgment references only the first and second enhancement paragraphs, implies that

Broderick pleaded “Not True” to both, and recites that both were found to have been

true. In fact, there were eight enhancement paragraphs, Broderick pleaded “Not

True” to each, and the jury found two or more to be true. We have the power to

modify a judgment to speak the truth when we have the necessary information to do

so. See Tex. R. App. P. 43.2(b); Bigley v. State, 865 S.W.2d 26, 27-28 (Tex. Crim.

App. 1993). Therefore, we modify the judgment to delete its references to “1st

Enhancement Paragraph” and “2nd Enhancement Paragraph” and to reflect that

12
“Broderick pleaded ‘Not True’ to Enhancement Paragraphs (1) through (8)” and that

“Two or more of Enhancement Paragraphs (1) through (8) were found to be ‘True.’”

Conclusion

Having overruled Broderick’s sole issue, we affirm the judgment of the trial

court as modified herein.

AFFIRMED AS MODIFIED.

KENT CHAMBERS
Justice

Submitted on December 29, 2025
Opinion Delivered February 11, 2026
Do Not Publish

Before Golemon, C.J., Wright and Chambers, JJ.

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