Opinion
No. 06-05-00079-CR
Submitted: February 21, 2006.
Decided: April 28, 2006. DO NOT PUBLISH.
On Appeal from the 336th Judicial District Court, Fannin County, Texas, Trial Court No. 20260.
Before MORRISS, C.J., ROSS and CARTER, JJ.
MEMORANDUM OPINION
Albert Charles McKinney was convicted by a Fannin County jury for the felony offense of driving while intoxicated (DWI). The jury found the State's punishment enhancement allegations to be true and assessed McKinney's punishment at eighteen years' confinement and a $5,000.00 fine. He now appeals, bringing to this Court one point of error in which he challenges the State's use of a prior felony conviction to enhance the available punishment. We affirm the trial court's judgment.
McKinney's Prior Convictions and Applicable Law
The offense of DWI is a class B misdemeanor. See Tex. Pen. Code Ann. § 49.04(b) (Vernon 2003). However, the offense becomes a third-degree felony when the State proves that "the person has previously been convicted . . . two times of any other offense relating to the operating of a motor vehicle while intoxicated." See Tex. Pen. Code Ann. § 49.09(b)(2) (Vernon Supp. 2005). Here, McKinney and the State stipulated to the two following prior convictions of DWI, which raised this offense of DWI from a misdemeanor to a felony. [1] In Cause No. 14361 of the 8th Judicial District Court of Hopkins County, Texas, on June 10, 1996, and [2] In Cause No. 11,075-C of the County Court at Law of Hopkins County, Texas, on December 15, 1995. As is permitted when alleging these jurisdictional elements, the State used Cause No. 11,075-C, a conviction for misdemeanor DWI. As stipulated, the instant offense is a third-degree felony punishable by two to ten years' imprisonment. See Tex. Pen. Code Ann. § 49.09(b)(2), § 12.34 (Vernon 2003). However, the State also sought to enhance the punishment range for this offense by alleging another prior felony DWI conviction:Before the commission of the offense alleged above, hereafter styled primary offense, the defendant committed the felony of Driving While Intoxicated 3rd Offense and was convicted thereof on June 10, 1996, in Cause No. 14362 in the 8th Judicial District Court of Hopkins County, Texas.The State used this allegation to enhance the available range of punishment to that of a second-degree felony, two to twenty years' imprisonment. See Tex. Pen. Code Ann. § 12.33 (Vernon 2003), § 12.42(a)(3) (Vernon Supp. 2005). The misdemeanor DWI offense (No. 11,075-C), used here as a jurisdictional element, was also used as jurisdictional element in the felony DWI conviction (Nos. 14361 and 14362). The felony DWI conviction in No. 14362 was used to enhance punishment for the instant offense.
McKinney's Argument
McKinney contends that these facts constitute an impermissible use of his prior misdemeanor DWI conviction in No. 11,075-C both as a jurisdictional element and as punishment enhancement in the instant offense. To support his contention, he relies on cases in which courts have disallowed the use of prior felony convictions as both an element of the primary offense and a conviction to enhance punishment. See Hernandez v. State, 929 S.W.2d 11 (Tex.Crim.App. 1996); Wisdom v. State, 708 S.W.2d 840 (Tex.Crim.App. 1986); Ramirez v. State, 527 S.W.2d 542 (Tex.Crim.App. 1975).State Did Not Impermissibly Use Prior Misdemeanor DWI Conviction for Enhancement
We disagree with McKinney's contentions and conclude that the State did not impermissibly use the prior misdemeanor DWI conviction for enhancement of punishment available for the instant offense. Initially, McKinney's argument invokes the principles of Section 49.09(g) regarding the prohibition of a practice commonly referred to as "double-dipping":(g) A conviction may be used for purposes of enhancement under this section or enhancement under Subchapter D, Chapter 12, but not under both this section and Subchapter D.Tex. Pen. Code Ann. § 49.09(g) (Vernon Supp. 2005). This argument was presented in Carroll v. State, 51 S.W.3d 797 (Tex.App.-Houston [1st Dist.] 2001, pet. ref'd). There, the court explained that the above-quoted provision contemplated two types of uses of a conviction — jurisdictional enhancement and punishment enhancement. A conviction used under Section 49.09(b) raises the DWI to a felony grade and is an element of the felony DWI. By comparison, a conviction used under Section 12.42 enhances the punishment. Id. at 799. Only felony convictions may be used to enhance punishment under Section 12.42. Cause No. 11,075-C is a misdemeanor conviction and could not be used for punishment enhancement for the instant offense. So, to the extent that McKinney's argument stands for the proposition that the State could not use No. 11,075-C in its enhancement paragraphs, he is correct. Here, the State could not have used No. 11,075-C in its enhancement allegations; the applicable repeat-offender provision only allows the use of felony convictions to enhance punishment. See Tex. Pen. Code Ann. § 12.42(a)(3). However, we point out that the State did not directly use No. 11,075-C for punishment enhancement purposes. The misdemeanor conviction in No. 11,075-C was used in each later DWI case for jurisdictional enhancement — it was used in raising the offenses to the felony level, giving the district court jurisdiction. See Gibson v. State, 995 S.W.2d 693, 696 (Tex.Crim.App. 1999). Therefore, the conviction in No. 11,075-C was used only under Section 49.09, but was not used as punishment enhancement under Chapter 12 of the Texas Penal Code. McKinney does not contend otherwise. McKinney's argument, instead, is based on the indirect relationship between No. 11,075-C and No. 14362, the felony conviction that the State actually did use for enhancement. That is, since No. 11,075-C (the misdemeanor conviction) was used as a jurisdictional element of the felony DWI in No. 14362, the State indirectly "used" No. 11,075-C in its enhancement allegations. In this regard, McKinney's contention fails. This argument has been rejected by the Houston First District Court in Carroll and by the Fort Worth Court in Perez. In Carroll, the appellant urged a nearly identical argument as does McKinney. Carroll contended that the State's enhancement allegation using a prior felony DWI conviction which was elevated to such felony status through use of a prior misdemeanor DWI conviction amounted to an impermissible use when the same misdemeanor DWI conviction was also used as a jurisdictional element of the offense at issue. See Carroll, 51 S.W.3d at 799. The court rejected this argument and held that the State did not "use" the prior misdemeanor conviction for punishment enhancement since "no independent proof of its existence is required in the State's burden of proof under section 12.42(d)." Id. at 801. Similarly, in Perez, the Fort Worth Court responded to the same argument by pointing out that the prior misdemeanor DWI conviction and the prior felony DWI conviction — for which the misdemeanor conviction was used as a jurisdictional element — were "separate and distinct offense[s]." Perez, 124 S.W.3d at 215-16 (citing Gibson, 995 S.W.2d at 695-96). The court went on to explain that the State was not required to plead or prove the prior misdemeanor DWI conviction to use the prior felony DWI conviction for enhancement. See Perez, 124 S.W.3d at 216. Based on such reasoning, the court concluded that the State did not "use" the misdemeanor conviction when it alleged the felony conviction to enhance punishment. See id. (citing Carroll, 51 S.W.3d at 801). Likewise, we conclude that the State did not use McKinney's prior misdemeanor DWI conviction in No. 11,075-C when it alleged a prior felony DWI conviction that was predicated on that misdemeanor conviction. Since only a felony conviction can be used to enhance the punishment for a felony DWI, the State could not have used the misdemeanor conviction to enhance punishment under Section 12.42(a)(3). See Carroll, 51 S.W.3d at 800. The State did not attempt to use the misdemeanor conviction for that purpose. Nor did the State indirectly use the prior misdemeanor DWI conviction when it used No. 14362, a prior felony DWI conviction in which the misdemeanor conviction was used as a jurisdictional element, to enhance punishment here. In order to have sufficiently proven during the trial on punishment that McKinney was convicted of felony DWI in No. 14362, the State need not also have proven that McKinney was convicted of misdemeanor DWI in No. 11,075-C. We, therefore, agree with our sister courts in Carroll and Perez and hold that the State did not impermissibly use the prior misdemeanor DWI conviction in its punishment allegations. We overrule McKinney's contentions and affirm the trial court's judgment.
McKinney concedes that, when he stipulated to the jurisdictional elements, he waived any error with respect to the use of those convictions in the guilt/innocence phase. See Smith v. State, 158 S.W.3d 463, 465 (Tex.Crim.App. 2005). He, therefore, limits his argument to the State's enhancement allegation and requests that this cause be remanded for a new trial on punishment.
The State contends McKinney failed to preserve error as to this complaint. However, the court reporter's record shows that, before the commencement of trial, McKinney raised the issue of "improper use" of the prior conviction to the trial court. He advanced the same theory of "derivative use" of the misdemeanor DWI conviction. The trial court postponed its ruling on the matter until immediately before McKinney's punishment trial, at which time McKinney again argued that the enhancement paragraph constituted a "double use" of the prior DWI conviction and, as such, ran afoul of principles of double jeopardy, the Eighth Amendment, and Section 49.09 of the Texas Penal Code.
The State responded to his argument and tendered a copy of a leading case on this precise issue. The trial court denied McKinney's motion to dismiss the enhancement paragraph. We conclude that McKinney's objections to the enhancement paragraph were raised before commencement of trial. See Tex. Code Crim. Proc. Ann. art. 1.14(b) (Vernon 2005); Studer v. State, 799 S.W.2d 263, 273 (Tex.Crim.App. 1990). Additionally, McKinney's objections were sufficiently specific to preserve the error raised on appeal. A review of the record shows that McKinney argued to the trial court, as he does here, that the State improperly used McKinney's prior misdemeanor DWI conviction as both a jurisdictional element and, indirectly, as an enhancement allegation.
Perez v. State, 124 S.W.3d 214 (Tex.App.-Fort Worth 2002, no pet.).