Anderson Fisher, Jr. v. The State of Texas--Appeal from 194th District Court of Dallas County

IN THE

TENTH COURT OF APPEALS

No. 10-95-158-CR

&

No. 10-95-159-CR

ANDERSON FISHER, JR.,

Appellant

v.

THE STATE OF TEXAS,

Appellee

From the 194th District Court

Dallas County, Texas

Trial Court Nos. F94-31103-HM & F94-31121-HM

O P I N I O N

In cause number 10-95-158-CR Appellant Fisher appeals from his conviction for forgery of a check, enhanced by two prior felony convictions, for which he was sentenced to 35 years in the Texas Department of Criminal Justice, Institutional Division.

In cause number 10-95-159-CR Appellant Fisher appeals from his conviction for forgery of a driver's license, enhanced by two prior felony convictions, for which he was sentenced to 35 years in the Texas Department of Criminal Justice, Institutional Division.

These cases were tried together; there is one statement of facts; and the briefs are identical.

Appellant entered an open plea of guilty in both cases. He also entered pleas of "true" to the first and second enhancement allegations in both cases. The trial court found Appellant guilty in both cases, found the enhancement allegations in both cases "true," and sentenced him to 35 years confinement in each case. Appellant appeals in both cases urging two points of error.

Point one: "The trial court erred in No. F94-31103-KM (the check forgery case), by sentencing Appellant to 35 years confinement, which sentence is outside the range of punishment."

Appellant was indicted for the forgery of a check, with two enhancement paragraphs. Appellant pled "guilty" to the forgery of the check and "true" to both prior felony conviction enhancements.

The trial court found Appellant guilty of the check forgery and found the two prior felony enhancements to be true, and sentenced him to 35 years. Appellant argues that his sentence was illegal because it was not in accord with the law regarding state-jail felony punishment under art. 42.12, 15, of the Texas Code of Criminal Procedure. Forgery of a check is a state-jail felony. Thus, the issue presented is whether art. 42.12, 15, Texas Code of Criminal Procedure, or 12.42(D) of the Texas Penal Code applies to a defendant convicted of a state-jail felony who has two prior sequential felony convictions.

The trial court sentenced Appellant under 12.42(d) of the Penal Code. We hold that the trial court was correct. State-jail felony punishment is set out in Title 3, "Punishments", in the Penal Code. Section 12.35 provides in pertinent part:

(a)Except as provided in subsection (c), an individual adjudged guilty of a state jail felony shall be punished by confinement in a state jail for any term of not more than 2 years or less than 180 days.

(b)provides that in addition the defendant may be fined up to $10,000.

(c)provides that a defendant found guilty of a state-jail felony shall be punished for a third-degree felony if a deadly weapon was used or if he had been previously convicted of murder, capital murder, indecency with a child, aggravated kidnapping, sexual assault and robbery.

Article 42.12, 15, of the Code of Criminal Procedure provided that upon conviction of a state-jail felony under 12.35(a), the judge shall suspend imposition of sentence and place the defendant on probation. Section 12.42, "Penalties for Repeat and Habitual Felony Offenders," provides in pertinent part:

(a). . .

(b). . .

(c). . .

(d)If it be shown on the trial of a felony offense that the defendant has previously been finally convicted of two felony offenses, and the second previous felony conviction for an offense that occurred subsequent to the first previous conviction having become final, on conviction he shall be punished by imprisonment in the Institutional Division of the Texas Department of Criminal Justice for life, or for any term of not more than 99 years or less than 25 years.

Appellant contends that he did not use a deadly weapon and that he had not been previously convicted of any felony listed under art. 42.12, 3g(a)(1) or in which an affirmative finding of a deadly weapon was made under 39(a)(2), thus he should have been sentenced under 12.35(a) of the Penal Code and art. 42.15, 15, Texas Code of Criminal Procedure.

Sections 12.35 and 12.42 were enacted in 1993 by the 73rd Legislature and both became effective September 1, 1994. When interpreting a statute, it is the constitutional duty of a court to ascertain and give effect to the apparent intent of the legislators who voted for it. Commancho v. State, 765 S.W.2d 431, 433 (Tex. Crim. App. 1989). Penalties under 12.35(a) provide for confinement in a state jail for 180 days to 2 years; and art. 42.12, 15, mandates probation (unless a deadly weapon was used or a defendant had been previously convicted of a crime not here applicable).

Punishment prescribed for habitual offenders, i.e., a defendant convicted of a felony with a showing of prior convictions for two additional felonies is not more than 99 years or less than 25 years. From the language of the statute, we conclude it was the intent of the legislature that 12.42(d) be the prescribed punishment for one convicted of a state-jail felony with a showing of two prior felony convictions. In accord: State v. Thompson, No. 14-94-01191-CR (Tex. App. Houston [14th Dist.], August 17, 1995, no pet.); Talley v. State, No. 06-95-00130-CR (Tex. App. Texarkana, October 9, 1995, pet. filed); Nowling v. State, No. 14-93-01069-CR (Tex. App. Houston [14th Dist.], August 31, 1995, no pet.); Bembry v. State, Nos. 11-95-120-CR & 11-95-121-CR (Tex. App. Eastland, October 26, 1995). //

Point one is overruled.

Point two: "The trial court erred by not admonishing Appellant as to the correct range of punishment in cause F94-31121-HM (the driver's license forgery)."

Article 26.13 of the Texas Code of Criminal Procedure sets out the required admonishments that a trial court must give a defendant before accepting a plea of guilty or nolo contendere. Article 26.13(a)(1) requires admonition of "the range of punishment attached to the offense." Article 26.13(d) provides: "The court may make the admonitions required by the article either orally or in writing. If the court makes the admonition in writing, it must receive a statement signed by the defendant and the defendant's attorney that they understand the admonitions and are aware of the consequences of the plea."

The record before us reflects a written admonition showing: "You are charged with the crime of forgery and the range of punishment is 25 to 99 years or life." This is the correct range of punishment for a habitual offender convicted of forging a driver's license. Tex. Penal Code Ann. 17.42(d) 1974. At the bottom of the document is the following acknowledgement: "I have read the above and foregoing admonitions by the court regarding my rights. I understand the admonitions, and I understand and am aware of the consequences of my plea. Furthermore, my lawyer has explained to me all of the admonitions given by the court in this document."

Appellant and his attorney both signed the admonitions on March 20, 1995. This written admonition and the range of punishment signed by Appellant and his attorney was sufficient to comply with art. 26.13.

Point two is overruled.

Both judgments are affirmed.

FRANK G. McDONALD

Chief Justice (Retired)

Before Chief Justice Thomas,

Justice Cummings, and

Chief Justice McDonald (Retired)

(Chief Justice Thomas not participating)

Affirmed

Opinion delivered and filed February 14, 1996

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