NO. 07-08-0516-CR
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL C
JULY 14, 2009
______________________________
CURTIS LEE SMITH,
Appellant
v.
THE STATE OF TEXAS,
Appellee
_________________________________
FROM THE 242ND DISTRICT COURT OF HALE COUNTY;
NO. B17591-0803; HON. ED SELF, PRESIDING
_______________________________
Memorandum Opinion
__________________________________
Before QUINN, C.J., and HANCOCK and PIRTLE, JJ.
Curtis Lee Smith appeals his conviction of possession of a controlled substance (cocaine) in an amount of less than one gram. He does so by contending he was not subject to enhancement as alleged in the indictment. We reverse and remand the judgment.
The State alleged that appellant had previously committed a felony on August 20, 1991, in Cause No. A10855-9109 for which he was sentenced to probation on November 25, 1991, and which probation was revoked on August 5, 1994. The State then alleged that after the conviction in Cause No. A10855-9109 was final, appellant committed another felony in Cause No. B11663-9403 for which he was convicted on August 4, 1994. That felony was committed on March 9, 1994. Because the current offense is a state jail felony, see Tex. Health & Safety Code Ann. §481.115(b) (Vernon 2003), it is enhanced pursuant to §12.42(a)(2) of the Penal Code which states: “If it is shown on the trial of a state jail felony punishable under Section 12.35(a) that the defendant has previously been finally convicted of two felonies, and the second previous felony conviction is for an offense that occurred subsequent to the first previous conviction having become final, on conviction the defendant shall be punished for a second-degree felony.” Tex. Penal Code Ann. §12.42(a)(2) (Vernon Supp. 2008).
The pen packet admitted into evidence shows a judgment revoking probation in Cause No. A10855-9109 on August 5, 1994. A probated sentence is not a final conviction for enhancement purposes until it is revoked. Jordan v. State, 36 S.W.3d 871, 875 (Tex. Crim. App. 2001); Ex parte Murchison, 560 S.W.2d 654, 656 (Tex. Crim. App. 1978). Since the first conviction did not become final until August 5, 1994, the second conviction did not occur prior to the first becoming final. For this reason, the evidence is not legally sufficient to support the enhancement paragraphs. Tomlin v. State, 722 S.W.2d 702, 705 (Tex. Crim. App. 1987) (stating that when there is no evidence to show the offenses were committed and became final in the proper sequence, the defendant’s sentence may not be enhanced). This is true even though appellant pled true to the enhancement allegations. See Ex parte Rich, 194 S.W.3d 508, 513 (Tex. Crim. App. 2006). Moreover, the error may not be deemed harmless. Jordan v. State, 256 S.W.3d 286, 292 (Tex. Crim. App. 2008). Therefore, the judgment must be reversed.
Accordingly, we reverse the judgment and remand to the trial court for a new punishment hearing. See Ex parte Rich, 194 S.W.3d at 513 (stating that when there is error at the punishment phase, the case may be remanded for the proper assessment of punishment).
Brian Quinn
Chief Justice
Do not publish.
mall-caps">Tex. Penal Code Ann. § 22.01(b)(1) (Vernon Supp. 2007). However, the officers testified to surveillance of the location where appellant was arrested. According to the officers, because of the time of night, the previous narcotic-related arrests, information received by the police department of narcotic trafficking in the area, the amount of traffic at that time of night, the vehicle parked in the middle of the road, and appellant’s possession of binoculars, the officers testified that they sought to detain appellant for questioning related to drug activity. At this point, the officers had reasonable suspicion to detain appellant for investigative purposes. See Citizen, 39 S.W.3d at 370. However, even if the officers did not have reasonable suspicion for lawfully detaining appellant, the officers were still performing their official duty because a police officer is acting within the lawful discharge of his official duties so long as he is acting within his capacity as a peace officer. See Hughes v. State, 897 S.W.2d 285, 298 (Tex.Crim.App. 1994). See also Hall v. State, 158 S.W.3d 470, 475 n.16 (Tex.Crim.App. 2005). In this case, the officers were in uniform, on duty, and in a marked vehicle performing a duty, i.e. surveillance, in their capacity as peace officers. See Hughes, 897 S.W.2d at 298. If appellant felt that he was being unlawfully detained, searched or arrested, the proper forum for raising the issue is in the courtroom, not on the street. See White v. State, 601 S.W.2d 364, 366 (Tex.Crim.App. 1980). Nevertheless, at the point that appellant physically resisted the pat down and broke free of Officer Chavez’s grip, he became culpable for the offense of resisting arrest. See Cook v. State, 1 S.W.3d 718, 721 (Tex.App.–El Paso 1999, pet. ref’d). Therefore, whether or not the officers had reasonable suspicion for the detention, at the point that appellant resisted Officer Chavez’s pat down and instead decided to break free and flee, appellant had committed the criminal offense of resisting arrest. At that point, Officer Flores, in chasing and detaining appellant, was performing his official duty in apprehending a person who had committed a criminal offense in his presence. See Tex. Code Crim. Proc. Ann. art. 14.01(b) (Vernon 2005). Hence, having reviewed the evidence in the light most favorable to the verdict to determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt, we conclude that the evidence is legally sufficient to uphold appellant’s conviction. We, therefore, overrule appellant’s issue.
Conclusion
For the foregoing reasons, we affirm.
Mackey K. Hancock
Justice
Do not publish.