DANIEL GARCIA STOKES, Appellant v. THE STATE OF TEXAS, Appellee

AFFIRM and Opinion Filed October 31, 2007
 
 
 
In The
Court of Appeals
Fifth District of Texas at Dallas
............................
No. 05-06-01331-CR
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DANIEL GARCIA STOKES, Appellant
V.
THE STATE OF TEXAS, Appellee
.............................................................
On Appeal from the 199th Judicial District Court
Collin County, Texas
Trial Court Cause No. 199-82221-04
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OPINION
Before Justices Whittington, Wright, and FitzGerald
Opinion By Justice FitzGerald
        Appellant Daniel Garcia Stokes pleaded guilty to a charge of aggravated robbery and elected to have his punishment assessed by the trial court. Stokes pleaded true to two prior felony convictions: (1) a 1989 conviction for aggravated robbery, and (2) a 1993 conviction for possession of a firearm by a felon. The trial court used these two prior felony offenses to enhance Stokes's punishment to forty years' confinement. In two issues on appeal, Stokes argues the trial court improperly enhanced his sentence, thereby exposing Stokes to double jeopardy and rendering a judgment not supported by sufficient evidence. We conclude Stokes's sentence was properly enhanced, and we affirm the judgment of the trial court.         Stokes's issues on appeal proffer a single argument, which rests upon the nature of the two prior felony convictions. Specifically, Stokes points out that the 1993 felony for possession of a firearm by a felon was proved, in critical part, by the 1989 conviction for armed robbery. The 1989 conviction established that Stokes was in fact a felon for purposes of his 1993 conviction. Stokes relies on the rule that “[t]he State is not permitted to use the same prior conviction more than once in the same prosecution.” See Hernandez v. State, 929 S.W.2d 11, 13 (Tex. Crim. App. 1996). Stokes correctly asserts, based on that rule, that the State is precluded from using a prior conviction to enhance punishment if it used that same conviction to prove the charged offense. See id.; see also McWilliams v. State 782 S.W.2d 871, 875 (Tex. Crim. App. 1990); Ramirez v. State, 527 S.W.2d 542, 543 (Tex. Crim. App. 1975). “The use of a prior conviction to prove an essential element of an offense bars the subsequent use of that prior conviction in the same indictment for enhancement purposes.” Wisdom v. State, 708 S.W.2d 840, 845 (Tex. Crim. App. 1986) (emphasis added).
        In this case, however, the State did not attempt to use the same prior conviction more than once in the same indictment. Neither Stokes's 1993 conviction nor his 1989 conviction was used in this prosecution to establish an element of the charged offense of aggravated robbery. Instead, the State relied on the two prior convictions solely to enhance punishment for the charged offense. The existence of a relationship between the two prior convictions does not preclude use of both of them for enhancement purposes for a third, unrelated conviction. See Steels v. State, 858 S.W.2d 636, 638 (Tex. App.-Houston [1st Dist.] 1993, pet. ref'd) (even though murder conviction contained in habitual offender paragraph was element of other conviction contained in same habitual offender paragraph, both convictions may be used to support habitual enhancement since murder conviction was not used as element in primary offense). The statute requires only two final sequential felony convictions for enhancement of the third felony conviction. Tex. Pen. Code Ann. § 12.42(d) (Vernon Supp. 2007). Stokes's prior convictions meet that criteria.
        We conclude the trial court did not err in using Stokes's two prior felony convictions to enhance his punishment for a separate felony conviction. Stokes was not subjected to double jeopardy, and sufficient evidence supported the enhancement of his sentence. We overrule Stokes's two issues, and we affirm the judgment of the trial court.
 
 
                                                          
                                                          KERRY P. FITZGERALD
                                                          JUSTICE
Do Not Publish
Tex. R. App. P. 47
061331F.U05