Summary
noting that burglary of a motor vehicle was a third-degree felony under previous version of Texas Penal Code
Summary of this case from Bettes v. StateOpinion
No. 07-16-00206-CR
08-14-2017
THOMAS SAMORA, APPELLANT v. THE STATE OF TEXAS, APPELLEE
On Appeal from the 251st District Court Potter County, Texas
Trial Court No. 71,432-C, Honorable Ana Estevez, Presiding
MEMORANDUM OPINION
Before QUINN, C.J., and PIRTLE, J. and HANCOCK, S.J.
Mackey K. Hancock, Justice (Ret.), Seventh Court of Appeals, sitting by assignment.
Appellant, Thomas Samora, was convicted of burglary of a habitation. He appeals the trial court's sentence of twenty-five years' incarceration that was the result of an enhanced punishment range under the habitual offender statute. Appellant contends that one of the prior felony convictions used to double enhance his sentence has been reclassified as a state jail felony that, by statute, may not be used as a prior felony conviction for purposes of enhancing his sentence and, therefore, the trial court's assessment of an enhanced sentence is void. We will affirm the judgment of the trial court.
See TEX. PENAL CODE ANN. § 30.02(a)(1) (West 2011).
See id. § 12.42(d) (West Supp. 2016).
Factual and Procedural Background
Because appellant's issue is entirely focused on sentencing, we will only briefly discuss the facts of the offense to provide context. On November 6, 2015, Amarillo Police were dispatched to a residence were a break-in had been reported. When officers arrived, one of the homeowners had appellant pinned down in an alley behind his house. The other homeowner gave a statement to the police that she had walked into the home, noticed some items had been moved, and then saw appellant in the home. When appellant attempted to flee, a homeowner chased him down, tackled him in the alley, and held him until the police arrived. Appellant was arrested for burglary of a habitation.
Prior to trial, the State alleged that appellant had been convicted of two prior felonies for purposes of enhancement of punishment under the habitual offender statute. One of the convictions alleged by the State was that appellant had been convicted of the felony offense of burglary of a motor vehicle on or about July 8, 1994. After the jury found appellant guilty of the burglary of a habitation charge, appellant pled true to both prior felony convictions that were used to enhance the applicable punishment range. Using a punishment range of twenty-five to ninety-nine years' incarceration, the trial court imposed a twenty-five year sentence. Appellant did not challenge the sentence at the time it was announced in open court or through a motion for new trial.
Appellant's sole issue on appeal contends that, because the statute under which he was convicted of the 1994 burglary of a motor vehicle has been amended in a manner that makes the offense a nonaggravated state jail felony, it cannot be used for punishment enhancement under the habitual offender statute.
Law and Analysis
The habitual felony offender statute applicable in this case provides that a conviction for a nonaggravated state jail felony cannot be used as a prior felony conviction for purposes of enhancing a defendant's sentence as a habitual offender. TEX. PENAL CODE ANN. § 12.42(d). This version of the statute was enacted in 2011. See Acts 2011, 82nd Leg., R.S., ch. 834, §§ 4, 6, 2011 Tex. Gen. Laws 2104, 2105. The 2011 revision provided that a state jail felony punishable under section 12.35(a) may not be used for enhancement purposes. Id.
Under the current Penal Code, the offense of burglary of a motor vehicle is classified as a misdemeanor. TEX. PENAL CODE ANN. § 30.04 (West 2011). It is a state jail felony if the defendant has been previously convicted of the offense twice or the vehicle in question is a rail car. Id. However, at the time appellant was convicted of burglary of a motor vehicle, it was a third-degree felony offense. See Acts 1973, 63rd Leg., R.S., ch. 399, § 1, 1973 Tex. Gen. Laws 883, 927. As such, it carried a possible punishment of two to ten years' imprisonment in the Institutional Division of the Texas Department of Criminal Justice. See Acts 1990, 71st Leg., 6th C.S., ch. 25, § 7, 1990 Tex. Gen. Laws 108, 110.
Texas Penal Code section 12.41 provides that,
For purposes of this subchapter [which includes section 12.42, the habitual felony offender statute], any conviction not obtained from a prosecution under this code shall be classified as follows:
TEX. PENAL CODE ANN. § 12.41(1) (West 2011). Because the 1994 burglary of a motor vehicle conviction used by the State for enhancement purposes was not obtained under "this code" but, rather, under the former Penal Code, it is, for enhancement purposes, considered a third-degree felony because confinement in a penitentiary was affixed to it as a possible punishment. Moreno v. State, 541 S.W.2d 170, 174 (Tex. Crim. App. 1976); Ortiz v. State, 626 S.W.2d 586, 588-89 (Tex. App.—Amarillo 1981, no pet.). Because appellant's prior conviction for burglary of a motor vehicle is considered a felony of the third degree, it can be used for enhancement purposes under section 12.42(d), regardless of whether it is classified as a misdemeanor or state jail felony under the current Penal Code. Ortiz, 626 S.W.2d at 588-89.(1) "felony of the third degree" if imprisonment in the Texas Department of Criminal Justice or another penitentiary is affixed to the offense as a possible punishment;
As such, we overrule appellant's sole issue.
Conclusion
Having overruled appellant's sole issue, we affirm the judgment of the trial court.
Mackey K. Hancock
Senior Justice Do not publish.