Rafael S. Martinez v. The State of Texas--Appeal from 227th Judicial District Court of Bexar County

04-99-00503-CR

Rafael MARTINEZ,
Appellant
v.
The STATE of Texas,
Appellee
From the 227th District Court, Bexar County, Texas
Trial Court No. 99-CR-2499-W
Honorable Philip Kazen, Judge Presiding

Opinion by: Karen Angelini, Justice

Sitting: Catherine Stone, Justice

Paul W. Green, Justice

Karen Angelini, Justice

Delivered and Filed: November 8, 2000

DISMISSED IN PART FOR LACK OF JURISDICTION, AFFIRMED IN PART

Factual and Procedural Background

On May 24,1999, pursuant to a plea bargain, Rafael Martinez pleaded no contest to a felony driving while intoxicated charge. The trial court sentenced Martinez to four years confinement in the Texas Department of Criminal Justice, Institutional Division and imposed a $1,000 fine. In two issues, Martinez challenges his conviction, claiming there is legally insufficient evidence to prove he committed the alleged offense and, that the district court lacked jurisdiction to hear his case. We affirm the trial court's judgment.

Jurisdiction

As a general rule, a defendant who pleads guilty or nolo contendere and whose punishment does not exceed that suggested by the plea bargain is not permitted to appeal any matter without the trial court's permission, except rulings on pre-trial motions and jurisdictional defects. Tex. R. App. P. 25.2 (b)(3).

Martinez pleaded no contest and received the punishment suggested in the plea bargain. Accordingly, he may appeal only those claimed errors listed in Rule 25.2(b)(3). Id. Without a truthful statement in his notice of appeal that the trial court granted him permission to appeal a sufficiency of the evidence claim or that he raised it in a pre-trial motion, Martinez may not appeal based on insufficient evidence grounds. Id.; Martinez v. State, 5 S.W.3d 722, 724 (Tex. App.-San Antonio 1999, no pet.). Martinez filed a general notice of appeal. We, therefore, have no jurisdiction to address Martinez's insufficiency claim and dismiss his first issue for want of jurisdiction.

A claim of jurisdictional error, however, is appealable from a plea bargain. And, this court has held that a general notice of appeal is sufficient to invoke our jurisdiction. Martinez, 5 S.W.3d at 725. But see Hernandez v. State, 986 S.W.2d 817, 819 (Tex. App.-Austin 1999, pet. ref'd). Because Martinez timely filed a general notice of appeal, we may reach his claim that the district court was never vested with jurisdiction over the felony D.W.I. charge against him

Claim of Jurisdictional Defect

Martinez challenges the trial court's jurisdiction to enter a judgment against him for felony D.W.I. in his second issue. Specifically, he claims the State improperly relied on enhancement offenses that occurred outside the statutory time period. We disagree.

Martinez was charged with felony D.W.I. The Texas Penal Code, section 49.04, provides that "[a] person commits an offense if the person is intoxicated while operating a motor vehicle in a public place." Tex. Pen. Code Ann. 49.04 (Vernon Supp. 2000). Although this offense is generally a Class B misdemeanor, it may be enhanced to a third degree felony if "the person has been previously convicted two times of an offense relating to the operating of a motor vehicle while intoxicated ..." Acts of June 19, 1993, 73rd Leg., 2d C.S., ch. 900, 1993 Tex. Gen. Laws 3697 (amended 1995) (current version at Tex. Pen. Code Ann. 49.09(b) (Vernon Supp. 2000)). (1) If a conviction is for "an offense committed more than 10 years before the offense" charged, and "the person charged has not been convicted of an offense involving the operation of a motor vehicle while intoxicated within 10 years before" the charged offense, then the prior conviction may not be used for enhancement purposes. Acts of June 19, 1993, 73rd Leg., 2d C.S., ch. 900, 1993 Tex. Gen. Laws 3697 (amended 1995) (current version at Tex. Pen. Code Ann. 49.09(e) (Vernon Supp. 2000)). Section 49.09(e) "requires the State to prove only one prior D.W.I. conviction in the ten-year period and one other prior D.W.I. conviction not subject to the ten-year limiting period." Smith v. State, 1 S.W.3d 261, 263 (Tex. App. - Texarkana 1999, pet. ref'd).

Martinez claims that two of the three convictions used to enhance the charged offense fall outside the Penal Code's date requirements. The charged offense, in this case, occurred on April 21, 1999. The prior convictions used to enhance the instant offense from a misdemeanor to a felony occurred on September 21, 1998, October 31, 1985, and October 27, 1983.

Martinez argues that only the 1998 conviction may be used to support the enhancement and that one offense is not enough to enhance a misdemeanor D.W.I. to a felony D.W.I. Although the 1983 and 1985 convictions did not occur within ten years of the instant offense, Martinez was convicted in 1998 of an additional offense involving the operation of a motor vehicle while intoxicated. The 1983 and 1985 convictions, therefore, do not fall within the Penal Code's ten-year limiting period and were properly used by the State for enhancement purposes. (2)

Because Martinez's misdemeanor driving while intoxicated charge was correctly enhanced to a felony charge, the trial court had jurisdiction of this case. See Tex. Code Crim. Proc. Ann. art. 4.05 (Vernon Supp. 2000). We, therefore, overrule Martinez's second issue and affirm the trial court's judgment.

Karen Angelini, Justice

DO NOT PUBLISH

1. Martinez was charged for acts committed on April 21, 1999. Therefore, the version of the Penal Code that was applicable on that date applies here. In the Matter of H.V.R., 974 S.W.2d 213, 214 (Tex. App.-San Antonio 1998, no pet.).

2. Because the statute only requires proof of two prior D.W.I. convictions, the 1983 conviction was not necessary to the trial court's jurisdiction.