Ezequiel Garza Garza v. The State of Texas--Appeal from 339th District Court of Harris County

In The

Court of Appeals

Sixth Appellate District of Texas at Texarkana

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No. 06-03-00059-CR

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EZEQUIEL GARZA GARZA, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 339th Judicial District Court

Harris County, Texas

Trial Court No. 908291

Before Morriss, C.J., Ross and Carter, JJ.

Memorandum Opinion by Chief Justice Morriss

MEMORANDUM OPINION

Ezequiel Garza Garza appeals from his conviction, on his plea of guilty, to the offense of unlawful possession of a firearm. Garza pled true to the enhancement, and the trial court assessed his punishment at twenty years' imprisonment. Garza also has a pending appeal in a companion case, in which he pled guilty to possession of marihuana of less than 2,000 pounds but more than fifty pounds. In that case, he was sentenced to forty-five years' imprisonment. Garza has raised the same contention in both appeals.

In his sole point of error, Garza argues the trial court erred in overruling the motion to suppress the evidence. For the reasons stated in our opinion in cause number 06-03-00058-CR, decided this date, we likewise find his contention in this appeal to be without merit.

We note, though, that Garza was sentenced to twenty years' imprisonment for unlawful possession of a firearm. After the denial of the motion to suppress, Garza pled guilty in open court and pled true to the enhancement. The indictment alleges that Garza:

[H]eretofore on or about APRIL 9, 2002, did then and there unlawfully, intentionally and knowingly possess a firearm, after having been convicted of a felony, namely, POSSESSION OF A CONTROLLED SUBSTANCE WITH THE INTENT TO DELIVER in the 351st District Court of HARRIS County, Texas, in Cause Number 662802 on JANUARY 13, 1995, and said possession of a firearm occurred before the fifth anniversary of the Defendant's release from confinement following conviction on APRIL 3, 1997.

Before the commission of the offense alleged above, on JANUARY 13, 1995, in Cause No. 0662802 in the 351st District Court of Harris County, Texas, the Defendant was convicted of the felony of Possession of a Controlled Substance with the Intent to Deliver.

While the indictment alleged an enhancement, the same prior felony conviction is used as both an element of the offense and as an enhancement. Prior conviction of a felony is an element of unlawful possession of a firearm. The Texas Penal Code provides that:

(a) A person who has been convicted of a felony commits an offense if he possesses a firearm:

(1) after conviction and before the fifth anniversary of the person's release from confinement following conviction of the felony or the person's release from supervision under community supervision, parole, or mandatory supervision, whichever date is later; or

(2) after the period described by Subdivision (1), at any location other than the premises at which the person lives.

Tex. Pen. Code Ann. 46.04 (Vernon Supp. 2004). Being previously convicted of a felony is an element of unlawful possession. A conviction that was used to prove an element of the offense cannot also be used to enhance the range of punishment. See, e.g., McWilliams v. State, 782 S.W.2d 871 (Tex. Crim. App. 1990); Ramirez v. State, 527 S.W.2d 542 (Tex. Crim. App. 1975); Henley v. State, Nos. 05-02-01226-CR and 05-02-01227-CR, 2003 Tex. App. LEXIS 6685, at *8 9 (Tex. App. Dallas Aug. 4, 2003, no pet.) (not designated for publication). Since the State does not allege any prior conviction other than the conviction used as an element of the offense, Garza should not have been subject to an enhancement for the charge of unlawful possession of a firearm.

The judgment indicates Garza was convicted of a third-degree felony and a finding of true as to the enhancement. However, as discussed above, Garza was not subject to an enhancement. Unlawful possession of a firearm is a third-degree felony subject to not more than ten years' or less than two years' imprisonment. See Tex. Pen. Code Ann. 12.34 (Vernon 2003), 46.04. Because the maximum punishment was ten years, the trial court erred in sentencing Garza to twenty years.

Because the error that we have found to exist relates solely to punishment, which was assessed by the trial court, we reverse the judgment of the trial court as to the punishment and remand this cause to the trial court to reassess appellant's punishment pursuant to Section 12.34 of the Texas Penal Code, which provides for the range of punishment that may be assessed for an individual found guilty of a third-degree felony. See Tex. Pen. Code Ann. 12.34.

We affirm the judgment as to all other matters.

Josh R. Morriss, III

Chief Justice

Date Submitted: March 12, 2004

Date Decided: March 18, 2004

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