Opinion
No. 11-03-00094-CR
June 10, 2004. DO NOT PUBLISH. Tex.R.App.P. 47.2(b).
Appeal from Mitchell County.
Panel consists of ARNOT, C.J., and WRIGHT, J., and McCALL, J.
Opinion
The jury convicted Henry Garcia, upon his plea of guilty, of possession of cocaine. Appellant entered a plea of true to two enhancement paragraphs. The jury assessed punishment at confinement for 60 years. We affirm. There is no challenge to the sufficiency of the evidence. Colorado City Police Officer Jeff Mitchell saw appellant and another man fighting at a convenience store. Officer Mitchell approached the two men and told them to quit fighting. When appellant tried to flee, Officer Mitchell tackled him. Appellant kicked and tried to bite Officer Mitchell. Officer Mitchell eventually restrained appellant. Officer Dan Hicks arrived as Officer Mitchell was placing appellant in Officer Mitchell's vehicle. Officer Hicks removed appellant from the vehicle and searched him. Officer Hicks found a baggie containing over 21 grams of cocaine. Officer Hicks also saw appellant remove a bag of marihuana from his pockets while appellant was being processed at the Mitchell County Jail. The indictment contained allegations of two prior convictions for enhancement purposes, a 1989 aggravated assault and a 1987 unauthorized use of a motor vehicle. During the punishment phase, the State presented evidence of appellant's 24 prior convictions from 1984 to the date of this offense in 2002 for such offenses as aggravated assault of a police officer, family violence assault, resisting arrest, evading arrest, and attempted escape. The State also presented evidence of two unadjudicated offenses that occurred incident to arrest. In his first issue, appellant contends that the trial court erred in allowing the State to use his 1987 conviction for unauthorized use of a motor vehicle as an enhancement. Specifically, appellant argues that "the offense of unauthorized use of a motor vehicle is a state jail felony and, as such, cannot be used for enhancement purposes under Texas Penal Code, Section 12.42." Appellant contends that the use of the 1987 conviction violated his equal protection rights under the United States Constitution and the Constitution of the State of Texas and the prohibition against ex post facto laws. Appellant relies on Fite v. State, 60 S.W.3d 314 (Tex.App.-Houston [14th Dist.] 2001, pet'n ref'd), to support his argument that his 1987 conviction for unauthorized use of a motor vehicle cannot be used for enhancement. Appellant argues that use of the prior conviction violated his rights under the Equal Protection Clause of the Texas and United States Constitutions. We disagree. In Fite, the defendant was charged in 1999 with aggravated robbery, and his sentence was enhanced using a prior conviction for possession of less than one gram of cocaine. Fite v. State, supra at 319. It was undisputed in Fite that the prior conviction was for a state jail felony. The present case is distinguishable. It is undisputed that, at the time of appellant's conviction, unauthorized use of a motor vehicle was a third degree felony. Former TEX. PENAL CODE § 31.07(b) (1974). Effective September 1, 1994, the offense became a state jail felony. TEX. PENAL CODE ANN. § 31.07(b) (Vernon 2003). When state jail felonies were created, the Texas Legislature included the following savings provision:
(a) The change in law made by this article applies only to an offense committed on or after the effective date of this article. For purposes of this section, an offense is committed before the effective date of this article if any element of the offense occurs before the effective date.
(b) An offense committed before the effective date of this article is covered by the law in effect when the offense was committed, and the former law is continued in effect for that purpose. (Emphasis added)Act of May 29, 1993, 73rd Leg., R.S., ch. 900, § 1.18, 1993 Tex. Gen. Laws 3705. The savings clause applies to appellant's 1987 conviction, and the conviction was properly used as a felony enhancement under Section 12.42(d). See Wilson v. State, 944 S.W.2d 444 (Tex.App.-Houston [14th Dist.] 1997), aff'd on other grounds, 977 S.W.2d 379 (Tex.Cr.App. 1998). Appellant further argues that the use of his 1987 felony conviction was an ex post facto application of a decriminalized offense. We disagree. An ex post facto law aggravates a crime or makes it a greater offense than when it was committed or similarly changes and inflicts greater punishment than that which was proscribed when the crime was committed. Collins v. Youngblood, 497 U.S. 37 (1990); Betancourt v. State, 590 S.W.2d 487, 489 (Tex.Cr.App. 1979). Section 12.42 allows use of the 1987 conviction to increase punishment for the current offense and does not aggravate or increase the punishment for the conduct which was the subject of the 1987 conviction. Therefore, using the 1987 conviction (a third degree felony at the time of commission and conviction) did not violate appellant's ex post facto rights. Appellant's first issue is overruled. In his second issue, appellant contends that the trial court erred in admitting the 24 pen packets from his prior convictions and evidence of 2 unadjudicated offenses. Relying on Grunsfeld v. State, 843 S.W.2d 521, 523 (Tex.Cr.App. 1992), appellant contends that this evidence was more prejudicial than probative and that, therefore, the trial court abused its discretion. In 1993, the legislature amended TEX. CODE CRIM. PRO. ANN. art. 37.07, § 3(a) (Vernon Supp. 2004) and deleted the language that the Court of Criminal Appeals had relied upon in Grunsfeld. Therefore, the question before this court is not whether the evidence was prejudicial but whether the evidence was relevant or helpful to the jury. Article 37.07, section 3(a); Sunbury v. State, 88 S.W.3d 229, 235 (Tex.Cr.App. 2002); Rogers v. State, 991 S.W.2d 263, 265 (Tex.Cr.App. 1999). The trial court's decision to admit this evidence is reviewed under the abuse of discretion standard. Ellison v. State, 86 S.W.3d 226, 227 (Tex.Cr.App. 2002); Powell v. State, 63 S.W.3d 435, 438 (Tex.Cr.App. 2001). In Rogers, the court held that a defendant's prior record is relevant to the jury's determination as to punishment and that evidence of a defendant's "prior convictions [is] relevant to tailor the sentence to the particular defendant." Rogers v. State, supra at 265. The 24 pen packets were relevant, not remote, and admissible. Sunbury v. State, supra; Rogers v. State, supra; Reed v. State, 811 S.W.2d 582 (Tex.Cr.App. 1991). Likewise, evidence of concurrent unadjudicated offenses was also relevant and admissible. Article 37.07, section 3(a); Fields v. State, 1 S.W.3d 687 (Tex.Cr.App. 1999). The second issue is overruled. The judgment of the trial court is affirmed.
TEX. PENAL CODE ANN. § 12.42 (Vernon Supp. 2004).
Former Section 3(a) read, in pertinent part: "[E]vidence may, as permitted by the Rules of Evidence, be offered by the State." (Emphasis added) TEX. CODE CRIM. PRO. art. 37.07, § 3(a) (2003); Mitchell v. State, 931 S.W.2d 950, 952 (Tex.Cr.App. 1996).