Dickerson, Roderick v. The State of Texas--Appeal from 339th District Court of Harris County

Affirmed and Memorandum Opinion filed October 27, 2005.

In The

Fourteenth Court of Appeals

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NO. 14-04-00615-CR

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RODERICK DICKERSON, Appellant

V.

THE STATE OF TEXAS, Appellee

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On Appeal from the 339th District Court

Harris County, Texas

Trial Court Cause No. 984,416

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M E M O R A N D U M O P I N I O N

We withdraw our opinion filed January 27, 2005, substitute this opinion in its place, and vacate our January 27, 2005, judgment.

Roderick Dickerson pled guilty to the offense of forgery. The jury found two enhancement paragraphs true, sentenced Dickerson to confinement for eleven years in the Institutional Division of the Texas Department of Criminal Justice, and imposed a fine of $1,537.06. After the instant appeal was perfected, appellate counsel filed a brief in compliance with Anders v. California, 386 U.S. 738, 87 S. Ct. 1396, 18 L. Ed. 2d 493 (1967), and High v. State, 573 S.W.2d 807 (Tex. Crim. App. 1978), concluding there was no arguable error to support an appeal. Dickerson did not file a pro se brief. We reviewed the record on appeal and affirmed the judgment of the trial court.

Subsequently, Dickerson filed a pro se motion for rehearing which this court granted. We now consider the issues raised by Dickerson.

Dickerson complains the trial court erred in denying his motion for continuance. The motion was made the day of trial, June 14, 2004, on the basis that Dickerson had not received a copy of the State=s second indictment, filed April 19, 2004. Dickerson requested ten days to prepare for trial. Defense counsel was aware of the second indictment and stated to the court that Dickerson had been informed the punishment range was two to twenty and not state jail. Counsel further stated the offers that had been made were always in the range well beyond that for a state jail felony. It was defense counsel=s stated opinion that Dickerson knew the punishment range was for a second degree felony. Consequently, we find the record does not establish the trial court erred in denying the motion for continuance.

Dickerson further asserts the instant offense arose out of the same criminal episode for which he was tried and convicted in Brazoria County, Texas, and given a four-year sentence. Dickerson requested the trial court in this cause to grant him a four-year sentence and that it run concurrently with the other four-year sentence. He now requests this court to grant the same relief. However, at Dickerson=s election the jury assessed punishment. Dickerson cites no authority, and we are aware of none, that would support such relief. Dickerson does not refer this court to any evidence in the record that the two cases arise out of the same criminal episode. We find Dickerson has not demonstrated reversible error. See Tex. R. App. P. 44.2.

Dickerson claims the enhancement of the offense from a state jail felony to a second- degree felony was an impermissible Amultiple@ enhancement. The record reflects that it was shown on the trial of the offense, a state jail felony, that Dickerson had previously been convicted of two felonies and the second previous felony conviction was for an offense that occurred subsequent to the first previous conviction having become final. Accordingly, he was punished for a second-degree felony. See Tex. Pen. Code Ann. ' 12.42(a)(2) (Vernon Supp. 2005). We find Dickerson=s argument is without merit.

Lastly, Dickerson argues he received ineffective assistance of counsel causing him to receive an illegal sentence. As noted above, the record does not support Dickerson=s claim the sentence was unlawful. Dickerson=s argument is overruled.

Accordingly, the judgment of the trial court is affirmed.

PER CURIAM

Judgment rendered and Memorandum Opinion filed October 27, 2005.

Panel consists of Justices Fowler, Edelman, and Guzman.

Do Not Publish C Tex. R. App. P. 47.2(b).