Albert Charles McKinney v. State

In The

Court of Appeals

Sixth Appellate District of Texas at Texarkana

______________________________

No. 06-05-00079-CR

______________________________

ALBERT CHARLES MCKINNEY, Appellant

 

V.

 

THE STATE OF TEXAS, Appellee

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On Appeal from the 336th Judicial District Court

Fannin County, Texas

Trial Court No. 20260

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

Memorandum Opinion by Justice Carter

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.

 

                                                                        Jack Carter

                                                                        Justice

 

Date Submitted:          February 21, 2006

Date Decided:             April 28, 2006

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In The

  Court of Appeals

                        Sixth Appellate District of Texas at Texarkana

 

                                                ______________________________

 

                                                             No. 06-11-00122-CR

                                                ______________________________

 

 

                                   VINSON LARRY BRUCE, Appellant

 

                                                                V.

 

                                     THE STATE OF TEXAS, Appellee

 

 

                                                                                                  

 

 

                                      On Appeal from the 102nd Judicial District Court

                                                             Bowie County, Texas

                                                       Trial Court No. 09F0385-102

 

                                                                                                   

 

 

 

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

                                        Memorandum Opinion by Chief Justice Morriss

                                                      MEMORANDUM OPINION

 

            Vinson Larry Bruce has filed pro se a notice of appeal from his conviction of aggravated robbery.  On our review of the clerk’s record, we noted that the trial court’s certification of right of appeal stated that this was a plea agreement case and that Bruce has no right of appeal. 

            Unless a certification, showing that a defendant has the right of appeal, is in the record, we must dismiss the appeal.  See Tex. R. App. P. 25.2(d). 

            Because the trial court’s certification affirmatively shows Bruce has no right of appeal, and because the record before us does not reflect that the certification is incorrect, see Dears v. State, 154 S.W.3d 610, 615 (Tex. Crim. App. 2005), we must dismiss the appeal.

            We dismiss the appeal for want of jurisdiction. 

 

 

 

 

                                                                                    Josh R. Morriss, III

                                                                                    Chief Justice

 

Date Submitted:          July 18, 2011  

Date Decided:             July 19, 2011

 

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