Christopher Ray Espinoza v. The State of Texas--Appeal from 18th District Court of Johnson County

IN THE

TENTH COURT OF APPEALS

No. 10-97-030-CR

CHRISTOPHER RAY ESPINOZA,

Appellant

v.

THE STATE OF TEXAS,

Appellee

From the 18th District Court

Johnson County, Texas

Trial Court # 31338

O P I N I O N

Appellant Espinoza appeals his conviction for burglary of a building for which he was sentenced to one year in the Johnson County Law Enforcement Center.

Trial was before the court which found Appellant guilty of burglary of a building, a state jail felony. At the punishment stage, the trial judge elected to assess punishment under Section 12.44(a), Texas Penal Code, thereby reducing the state jail felony to a class A misdemeanor, and assessed Appellant one year in the Johnson County Jail.

Appellant appeals on one point of error: The trial court abused its discretion by imposing P.C. Section 12.44 when C.C.P. Article 42.12, Sec. 15(a), is mandated or, in the alternative, imposing sentence not authorized by law.

Appellant states in his brief that he does not challenge the sufficiency of the evidence nor finding of guilt in the case.

Penal Code Section 12.44, Reduction of State Felony Punishment to Misdemeanor Punishment.

(a) A court may punish a defendant who is convicted of a state jail felony by imposing the confinement permissible as punishment for a Class A misdemeanor if, after considering the gravity and circumstances of the felony committed and the history, character, and rehabilitative needs of the defendant, the court finds that such punishment would best serve the ends of justice.

Code of Criminal Procedure Article 42.12. Procedures Relating to State Jail Felony Community Supervision.

Sec. 15(a). On conviction of a State Jail Felony punished under Section 12.35(a), Penal Code, the Judge shall suspend the imposition of confinement and place the defendant on Community supervision unless the defendant has previously been convicted of a felony, in which event the Judge may suspend the imposition of the sentence and place the defendant on community supervision, or may order the sentence to be executed.

Specifically, Appellant argues that according to the mandatory language of Article 42.12, Sec. 15(a), Code of Criminal Procedure, the trial court may not sentence a defendant to one year in jail pursuant to Section 12.44(a) of the Penal Code, but must give him probation.

Article 42.12, Sec. 15(a), Code of Criminal Procedure and Article 12.44(a) of the Penal Code do not pertain to the same class of persons.

Article 42.12, Sec. 15(a), Code of Criminal Procedure, provides generally for the punishment of a defendant convicted of a state jail felony under Article 12.35(a) of the Penal Code.

Section 12.44(a) of the Penal Code provides an alternate method of sentencing to follow for a described class of persons:

. . . if, after considering the gravity and circumstances of the felony committed and the history, character, and rehabilitative needs of the defendant, the court finds that such punishment would best serve the ends of justice.

Here, the trial court, after considering the elements listed above, determined that the ends of justice would best be served by sentencing the defendant under Section 12.44(a), and then sentenced him to one year in jail.

No abuse of discretion by the trial court is shown. Moreover, where two statutes, as here, deal with different situations or with a different class of persons, each statute will be construed separately, each in accordance with the plain meaning of that particular statute. Cheney v. State, 755 S.W.2d 123, 126 (Tex. Crim. App. 1998); State v. Mancuso, 919 S.W.2d 86, 91 (Tex. Crim. App. 1996); State v. Thompson, State v. Perry, 912 S.W.2d 244 (Tex. App. Houston [14th Dist.] 1995, no writ). Thus Penal Code Sec. 12.44(a) was properly used by the trial court in sentencing Appellant.

Point one is overruled.

The judgment is affirmed.

FRANK G. McDONALD

Chief Justice (Retired)

Before Chief Justice Davis,

Justice Cummings and

Chief Justice McDonald (Retired)

Affirmed

Opinion delivered and filed September 17, 1997

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