BENJAMIN JAMES HUDSON, JR., Appellant v. THE STATE OF TEXAS, Appellee

Affirmed and Opinion filed November 6, 1989
 
 
S
In The
Court of Appeals
Fifth District of Texas at Dallas
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No. 05-88-01311-CR
No. 05-88-01312-CR
No. 05-89-00177-CR
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BENJAMIN JAMES HUDSON, JR., Appellant
V.
THE STATE OF TEXAS, Appellee
 
.................................................................
On Appeal from the Criminal District Court No. 3
Dallas County, Texas
Trial Court Cause No. F88-95608-UJ
Trial Court Cause No. F88-95609-UJ
Trial Court Cause No. F88-95610-UJ
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O P I N I O N
Before Chief Justice Enoch and Justices Baker and Onion FN:1
Opinion By Justice Onion
        These appeals are taken from a conviction for unlawful possession of a controlled substance: heroin less than 28 grams, and from two convictions for felony theft. The appellant, Benjamin James Hudson, Jr., entered a plea of guilty to each indictment before the trial court and a plea of true to the two prior convictions alleged for enhancement of punishment in each indictment. The court assessed punishment in each case at thirty (30) years confinement in the Department of Corrections. The three sentences are to run concurrently. We affirm the trial court's judgment.
        Appellant's first point of error asserts that the trial court erred in allowing the punishment in each of the three felony offenses to be enhanced by the same prior convictions that occurred prior to June 7, 1979. In each of the three indictments here involved the same prior convictions, burglary of a building conviction on October 17, 1977, and an attempted burglary of a habitation conviction on December 9, 1975, were alleged and used for enhancement of punishment.
        Section 12.46 of the Texas Penal Code provides: "The use of a conviction for enhancement purposes shall not preclude the subsequent use of such conviction for enhancement purposes, Tex. Penal Code Ann. § 12.46 (Vernon Supp. 1989). Section 12.46 became effective June 7, 1979, and was intended to overrule the judicial bar to the repeated use of prior convictions to enhance punishment. Haines v. State, 623 S.W.2d 367, 369 (Tex. Crim. App. 1981); Bonner v. State, 728 S.W.2d 921, 922 (Tex. App.--Houston [1st Dist.] 1987, no pet.).
        In Bonner it was held that the same prior conviction could be alleged and used to enhance punishment in each of three indictments tried simultaneously. The Bonner court refused to limit the applicability of section 12.46 to separate trials for the same would undermine the purpose of the statute. Bonner, 728 S.W.2d at 922, citing Cervantes v. State, 706 S.W.2d 685, 688 (Tex. App.--Houston [14th Dist.] 1986, no pet.); Walker v. State, 661 S.W.2d 224, 225 (Tex. App.--Houston [1st Dist.] 1983, no pet.); Blackshear v. State, 660 S.W.2d 139, 139-40 (Tex. App.--Waco 1983, no pet.); Davis v. State, 652 S.W.2d 520, 521 (Tex. App.--Houston [1st Dist.] 1983, no pet.). In Ellis v. State, 646 S.W.2d 554, 556-57 (Tex. App.--Houston [1st Dist.] 1982), aff'd, 683 S.W.2d 379 (Tex. Crim. App. 1984), the court held that the use of the same prior conviction to enhance the punishment in each count of a two-count indictment alleging two separate aggravated robberies was not an improper use of the prior conviction for enhancement in light of section 12.46 as enacted in 1979.
        It is true, as appellant claims, that Ex parte Bonham, 707 S.W.2d 107, 109 (Tex. Crim. App. 1986), held that section 12.46 cannot be applied retroactively where the primary offense alleged was committed prior to the effective date of section 12.46 (June 7, 1979). To avoid an ex post facto application the reviewing courts will look to the commission date of the offense whose punishment is sought to be enhanced and not to the time of the trial.
        In the instant case the primary offenses all occurred in 1988 so Bonham has no application, but appellant urges that the prior convictions occurred before June 7, 1979, so that these prior convictions cannot be used in more than one of the three cases. Appellant argues that for the repeated use of a prior conviction for enhancement purposes, both that conviction and the offense whose punishment is sought to be enhanced must have occurred before the effective date of section 12.46. Bond v. State, 700 S.W.2d 36, 38 (Tex. App.--Beaumont 1985, pet. ref'd), has been decided contrary to appellant's contention, rejecting an ex post facto law argument. Appellant's first point of error is overruled.
        In his second point of error appellant complains that "over appellant's objection the court allowed Officer Mendez to testify to an area he was not properly qualified in." Appellant points to Mendez's testimony as "speed-balling" involving use of heroin and cocaine to which appellant's objection was sustained. No further relief was requested.
        It is well settled that where the plea of guilty is voluntarily and understandably made, all non-jurisdictional defects, including deprivation of federal due process, are waived. Wheeler v. State, 628 S.W.2d 800, 802 (Tex. Crim. App. 1982); Helms v. State, 484 S.W.2d 925, 927 (Tex. Crim. App. 1972); Hoskins v. State, 425 S.W.2d 825, 829-30 (Tex. Crim. App. 1967); Davila v. State, 767 S.W.2d 205, 205 (Tex. App.--Corpus Christi 1989, no pet.). Appellant's point of error has been waived. We need not determine if the point of error lacks merit for other reasons.
        In his third point of error appellant contends the "court erred in allowing third degree felony enhanced theft offenses to be enhanced beyond a third degree felony by theft related felony convictions." The indictment in cause numbers 05-88-01312-CR and 05-89-00177-CR alleged third degree felonies under section 31.03(e)(4)(C) of the Texas Penal Code which provides:
        (e)        Except as provided by subsection (f) of this section, an offense under this section is:
 
* * *
            (4)        a felony of the third degree if:
 
                (c)        the value of the property stolen is less than $750 and the defendant has been previously convicted two or more times of any grade of theft; . . . .
Tex. Penal Code Ann. § 31.03(e)(4)(C) (Vernon 1989).
        The indictments alleged a theft of property under the value of $750 and two prior felony theft convictions for jurisdictional purposes in order to constitute a third degree felony. Appellant does not complain of the allegation or use of the prior theft convictions under section 31.03(e)(4)(C). His complaint is centered on the fact that the third degree felony's punishment was enhanced under section 12.42 of the Texas Penal Code by what he called "theft-related" convictions, here his prior convictions for burglary of a building and attempted burglary of habitation convictions.
        In Rawlins v. State, 602 S.W.2d 268, 269 (Tex. Crim. App. [Panel Op.] 1980) the court stated:
        We now hold that the punishment for felony theft of property having a value of less than $200.00, section 31.03(d)(4)(C), supra [now section 31.03(e)(4)(c)] may be enhanced under section 12.42(a) or (d) only if the prior felony convictions used for that purpose are for an offense other than theft. Stated in the converse, prior felony theft convictions may not be used to enhance pursuant to section 12.42(a) or (d), the punishment for theft of property having a value of less than $200.00. [Now see section 31.03(e)(4)(C)].
        In Gant v. State, 606 S.W.2d 867, 871 (Tex. Crim. App. 1980) it was held that under the then section 31.03(d)(4)(C) a new felony grade offense was created similar to the felony offense of driving while intoxicated, and in Luedke v. State, 711 S.W.2d 657, 659 (Tex. Crim. App. 1986), it was noted section 31.03(d)(4)(C) is a jurisdictional element of the offense prosecuted and not a special enhancement provision as indicated in Rawlings. The Gant court further wrote, "such conclusion [the holding in Rawlings quoted above] is compelled because all of the prior convictions alleged constituted two or more convictions for `any grade of theft' and not because § 31.03(d)(4)(C) is a `special enhancement' statute which governs § 12.42, supra, a `general enhancement' provision." Gant, 606 S.W.2d at 872 n.9. (emphasis original). See also Turner v. State, 636 S.W.2d 189, 196 (Tex. Crim. App. [Panel Op.] 1982) (opinion on rehearing); McGinnis v. State, 746 S.W.2d 479, 482 (Tex. Crim. App. 1988) (Clinton, Jr., concurring).
        Under any circumstances the Rawlings rule is still alive and well, and appellant seeks to rely upon it and to extend it to what he asserts are "theft-related" offenses. Burglary and attempted burglary and theft are separate and distinct offenses and are found in different chapters of the penal code. The actual commission of theft is not essential to every conviction for burglary. See, e.g., Houston v. State, 486 S.W.2d 363, 364 (Tex. Crim. App. 1972); Leaderbrand v. State, 457 S.W.2d 557, 558 (Tex. Crim. App. 1970). Appellant's reliance upon Rawlings is misplaced. Appellant's third point of error is overruled.
        In his fourth point of error appellant contends the evidence was insufficient to support his conviction for unlawful possession of heroin based on his guilty plea. He urges that there was no expert testimony that the substance found on his person was heroin. At the same time he complains that only a small amount of the substance was submitted for analysis, and that for some unknown reason there was a second laboratory analysis two months after the first.
        The record reflects that the appellant waived the appearance, confrontation and cross-examination of the witnesses against him, and he personally, along with his counsel, stipulated to the chain of custody of the substance and to the laboratory analysis showing the substance was heroin. In addition, he executed a written judicial confession to the possession of heroin charge which instrument was before the court. While testifying on his own behalf, appellant admitted that he was committing thefts to buy cocaine and heroin. The evidence was clearly sufficient to meet the requirements of Tex. Code Crim. Proc. Ann. art. 1.15 (Vernon 1977). See also Jackson v. Virginia, 443 U.S. 307, 99 S. Ct. 2781, 61 L. Ed. 2d 570 (1970); Chambers v. State, 711 S.W.2d 240, 244-45 (Tex. Crim. App. 1986). Appellant's fourth point of error is overruled.
        The trial court's judgment is affirmed.
 
 
                                                          
                                                          JOHN F. ONION, JR.
                                                          PRESIDING JUDGE, ASSIGNED
 
Do Not Publish
Tex. R. App. P. 90
 
881311.U05
 
FN:1 The Honorable John F. Onion, Jr., Presiding Judge, Retired, Court of Criminal Appeals, sitting by assignment.
File Date[11-06-89]
File Name[881311]