The State of Texas v. Rudolph Sanchez--Appeal from 379th Judicial District Court of Bexar County

MEMORANDUM OPINION

No. 04-06-00542-CR

The STATE of Texas,

Appellant

v.

Rudolph SANCHEZ,

Appellee

From the 379th Judicial District Court, Bexar County, Texas

Trial Court No. 2006-CR-1992

Honorable Bert Richardson, Judge Presiding

Opinion by: Sandee Bryan Marion, Justice

Sitting: Alma L. L pez, Chief Justice

Sandee Bryan Marion, Justice

Rebecca Simmons, Justice

Delivered and Filed: March 14, 2007

REVERSED AND REMANDED

A grand jury indicted defendant, Rudolph Sanchez, for felony driving while intoxicated. The indictment alleged defendant was driving while intoxicated on December 10, 2005, and that he had previously been convicted of the same offense on January 21, 1987 and May 18, 1987. Defendant filed a motion to quash the indictment, alleging the 1987 offenses occurred more than ten years before the primary offense and, thus, the State was barred from using the prior convictions for enhancement purposes. The trial court granted the motion to quash, and this appeal by the State ensued. We reverse and remand.

DISCUSSION

In his motion to quash and on appeal, defendant argues that the prior convictions are elements of the offense for which he is charged; therefore, the law in effect in 1987 must apply. In 1987, the former version of Texas Penal Code chapter 49 provided as follows: "[i]f it is shown on the trial of an offense under this article that the person has been convicted two or more times of an offense under this article, the offense is punishable" as a felony. (1)

However, a prior conviction could not be used for enhancement purposes if the conviction was for an offense committed more than ten years before the primary offense was committed (hereinafter, "the ten-year rule"). (2)

Thus, defendant concludes, the State could not use the 1987 convictions to enhance his primary offense to a felony because these offenses fall outside the ten-year rule. However, in September 2005, the Legislature repealed any semblance of the ten-year rule. (3) The State argues the current version of Penal Code chapter 49 applies because defendant committed the alleged offense in December 2005. Therefore, the State asserts there is no limitation under the current version of chapter 49 on its use of the 1987 convictions to enhance defendant's offense to a felony.

At the hearing on the motion to quash, the arguments focused on the prospective applicability of chapter 49. The 2005 amendments included the following enabling legislation:

The changes in law made by this Act apply only to the penalty or the terms of community supervision for an offense under Chapter 49, Penal Code, that is committed on or after the effective date of this Act. The penalty and the terms of community supervision for an offense under Chapter 49, Penal Code, that was committed before the effective date of this Act are covered by the law in effect when the offense was committed, and the former law is continued in effect for that purpose. For purposes of this section, an offense was committed before the effective date of this Act if any element of the offense was committed before that date.

Act of 2005, 79th Leg., R.S., ch. 996, 4 (emphasis added).

Defendant argues that because the prior convictions are elements of the primary offense and because those convictions occurred in 1987, before the effective date of the 2005 amendment, the law in effect in 1987 applies. However, a similar argument has been rejected by several courts, including the Texas Court of Criminal Appeals. Although prior convictions are elements of the primary offense, the exact dates of those prior offenses are not. See State v. Mason, 980 S.W.2d 635, 639-40 (Tex. Crim. App. 1998); Smith v. State, 176 S.W.3d 438, 440 (Tex. App.--Houston [1st Dist.] 2004, no pet.); Vanderhorst v. State, 52 S.W.3d 237, 242 (Tex. App.--Eastland 2001, no pet.); In re Texas ex rel. Hilbig, 985 S.W.2d 189, 192 (Tex. App.--San Antonio 1998, no pet.). Therefore, defendant was subject to the current version of Penal Code chapter 49, which was in effect when he allegedly committed the primary offense. Chapter 49 currently does not include a ten-year limitation on the use of prior convictions to enhance an offense to a felony. Accordingly the trial court erred in granting defendant's motion to quash the indictment.

CONCLUSION

We sustain the State's issue on appeal, reverse the trial court's judgment, and remand for further proceedings.

Sandee Bryan Marion, Justice

Do Not Publish

1. Former Tex. Rev. Civ. Stat. Ann. art. 67011-1(e). Act of 1983, 68th Leg., R.S., ch. 303, 3, 1983 Tex. Gen. Laws 1574, 1576; repealed by Act 1993, 73rd Leg., R.S., ch. 900, 1.15, 1993 Tex. Gen. Laws 3586, 3704, codified as amended to Tex. Pen. Code 49.09(b), Act of 1993, 73rd Leg., R.S., ch. 900, 1.01, 1993 Tex. Gen. Laws 3586, 3696.

2. Former Tex. Rev. Civ. Stat. Ann. art. 67011-1(i). Act of 1983, 68th Leg., R.S., ch. 303, 3, 1983 Tex. Gen. Laws 1574, 1576; repealed by Act 1993, 73rd Leg., R.S., ch. 900, 1.15, 1993 Tex. Gen. Laws 3586, 3704, codified as amended to Tex. Pen. Code 49.09(e), Act of 1993, 73rd Leg., R.S., ch. 900, 1.01, 1993 Tex. Gen. Laws 3586, 3698; repealed by Act of 2005, 79th Leg., R.S., ch. 996, 3.

3. Id.