Affirmed and Opinion filed December 9, 2003.
In The
Fourteenth Court of Appeals
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NO. 14-02-00113-CR
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FRUCTUOSO CEPEDA, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 230th District Court
Harris County, Texas
Trial Court Cause No. 894,366
O P I N I O N
Fructuoso Cepeda pleaded nolo contendere to assault. In accordance with the plea agreement, the trial court assessed punishment at five years= deferred adjudication and a $700.00 fine. In five issues, appellant claims (1) the trial court erred in overruling his motion to dismiss the indictment, and (2) his plea is jurisdictionally defective. We affirm.
I. Background
Appellant and complainant, Cathy Cepeda, were formerly married to each other. On December 16, 2000, appellant and Cepeda were arguing at her sister=s house. Appellant and Cepeda went outside because Cepeda did not want her relatives to hear their argument. The argument escalated, and appellant beat Cepeda about the face and head with his hands.
Appellant was charged with assault of a family member, enhanced by a prior conviction for assault of a family member. Tex. Pen. Code Ann. ' 220.1 (Vernon 2003). By written motions filed on August 10, 2001, and August 14, 2001, appellant sought to quash the indictment and strike the enhancement paragraph. The indictment alleged, in relevant part, that appellant:
on or about December 16, 2000, did then and there unlawfully, intentionally and knowingly cause bodily injury to Cathy Cepeda, a member of the defendant=s family, and hereafter styled the Complainant by striking the Complainant with his hand.
It is further presented that before the commission of the offense alleged above, the Defendant on March 3, 1992, in the County Criminal Court at Law No. 6 of Harris County, Texas, in Cause No. 9150962, was convicted of the offense of assault of a member of the defendant=s family.
Appellant argued to the trial court that there was no evidence the victim in the prior assault conviction was a family member and the use of appellant=s prior assault conviction violated constitutional prohibitions against double jeopardy and ex post facto provisions. After conducting a hearing, the trial court denied both motions.
II. Ex Post Facto
In his first two issues, appellant asserts the trial court erred in denying his motion to dismiss the indictment because the prior conviction used to enhance the charge of assault of a family member is a violation of the Texas and United States Constitutions= prohibitions against ex post facto laws. An ex post facto law (1) punishes a crime as an act previously committed which was innocent when done; (2) changes the punishment and inflicts a greater punishment than the law attached to a criminal offense when committed; or (3) deprives a person charged with a crime of any defense available at the time the act was committed. Rodriguez v. State, 93 S.W.3d 60, 66 (Tex. Crim. App. 2002). Section 22.01 of the Texas Penal Code sets forth the offense of assault:
(a) A person commits an offense if the person:
(1) intentionally, knowingly, or recklessly causes bodily injury to another, including the person=s spouse;
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(b) An offense under Subsection (a)(1) is a Class A misdemeanor, except that the offense is a felony of the third degree if the offense is committed against:
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(2) a member of the defendant=s family or household, if it is shown on the trial of the offense that the defendant has been previously convicted of an offense against a member of the defendant=s family or household under this section; . . .
Tex. Pen. Code Ann. ' 22.01.
In other words, assault of a family member, a Class A misdemeanor, is elevated to a third degree felony if it is shown the accused has been previously convicted of assault of a member of the accused=s family or household. Id. In 1999, the Legislature amended section 22.01(b)(2) to provide that an assault of a family member is a third-degree felony if it is committed against a member of the defendant=s family or household and it is shown that the defendant has been previously convicted of assault of a family member. See Act of June 19, 1999, 76th Leg., R.S., ch. 1158, ' 1, 1999 Tex. Gen. Laws 4063.
Appellant argues prosecution for felony assault is simply an increase in punishment for the 1992 assault conviction. We disagree with appellant=s contention. The Texas Court of Criminal Appeals has previously considered and rejected similar contentions. A[A] conviction which occurred prior to the enactment of a statute providing for increased punishment upon a subsequent conviction may be used for enhancement purposes under the statute, and that such usage is not unconstitutional as being an ex post facto application of the statute.@ Vasquez v. State, 477 S.W.2d 629, 632 (Tex. Crim. App. 1972); see also Graham v. State, 546 S.W.2d 605, 608 (Tex. Crim. App. 1977) (applying Vasquez); Shaw v. State, 529 S.W.2d 75, 76 (Tex. Crim. App. 1975) (same). The Court reasoned that the statute providing for greater punishment upon a subsequent conviction does not seek to punish the offender for the original criminal act a second time, but rather A>[t]he repetition of criminal conduct aggravates . . . guilt and justifies heavier penalties . . . .=@ Vasquez, 477 S.W.2d at 632 (quoting Graham v. West Virginia, 224 U.S. 616, 623 (1912)). Thus, the enhancement was applied to the December 2000 offense, rather than the 1992 offense. Accordingly, we find section 22.01(b)(2) is consistent with Vazquez. Appellant=s first and second issues are overruled.
III. Double Jeopardy
In his third issue, appellant asserts the trial court erred in denying his motion to dismiss his indictment because his prior conviction used to enhance the charge of assault of a family member is a violation of the Texas and United States Constitutions= prohibitions against double jeopardy. The prohibition against double jeopardy protects against (1) a second prosecution for the same offense after acquittal; (2) a second prosecution for the same offense after conviction; and (3) multiple punishments for the same offense. Illinois v. Vitale, 447 U.S. 410, 415 (1980); Lopez v. State, 108 S.W.3d 293, 295B96 (Tex. Crim. App. 2003).
Appellant asserts the State is attempting a second conviction and punishment for an offense for which he has already been convicted and punished. In State v. Cagle, this court addressed the enhancement provision of section 22.01(b) in the context of a double jeopardy claim. 77 S.W.3d 344 (Tex. App.CHouston [14th Dist.] 2002, pet. ref=d). We explained that double jeopardy does not apply to noncapital sentencing enhancements because the imposition of an enhanced sentence on a persistent offender is not a new jeopardy or an additional penalty for the prior offense; therefore, double jeopardy does not prevent the State from having A>a second opportunity to present its proof of the prior . . . conviction=@ in a noncapital sentencing proceeding. Id. at 347 (quoting Bell v. State, 994 S.W.2d 173, 175 (Tex. Crim. App. 1999)). Thus, using appellant=s previous family violence assault conviction to enhance his punishment did not constitute a second conviction or punishment of his prior conviction. Appellant=s third issue is overruled.
IV. Jurisdiction
In his fourth issue, appellant argues the trial court erred in denying his motion to dismiss because the district court does not have jurisdiction over misdemeanor offenses. Appellant argues that the information and judgment reflect that he was charged and convicted of misdemeanor assault in 1992, not assault of a family member. Therefore, according to appellant, because the State could not prove the requisite prior conviction of assault of a family member which would allow for the enhancement of the December 2000 assault from a misdemeanor to a felony, the district court was not vested with jurisdiction See Tex. Code Crim. Proc. Ann. art. 4.05 (Vernon Supp. 2003) (providing that Adistrict courts and criminal district courts shall have original jurisdiction in criminal cases of the grade of felony, of all misdemeanors involving official misconduct, and of misdemeanor cases transferred to the district court under Article 4.17 of this code@).
At the hearing on appellant=s motions, the State explained that the 1992 information would allege that Cepeda was the complainant, but would not contain the Afamily member@ language because A[t]hat=s not how we charged it back in that time.@[1] The State, however, informed the trial court that it was prepared to present testimony supporting the allegation that the complainant in the 1992 assault was a family member. Moreover, at the hearing on appellant=s guilty plea, the State informed the trial court that it had evidence that Cepeda was married to appellant in 1992, and was the complainant in the 1992 offense. Such extrinsic evidence is allowed to prove that the previous assault was committed against a member of the defendant=s family. See Manning v. State, 112 S.W.3d 740, 744 (Tex. App.CHouston [14th Dist.] 2003, pet. filed) (holding that because conviction predating section 22.01(b)(2) can be used for enhancement and use of extrinsic evidence to prove family violence in subsequent proceeding is not prohibited, trial court did not abuse discretion in refusing to quash indictment); State v. Eakins, 71 S.W.3d 443, 445 (Tex. App.CAustin 2002, no pet.) (holding that absence of affirmative finding in judgment of conviction for previous assault does not in itself preclude introduction of extrinsic evidence that previous assault was committed against family member).
Therefore, because appellant=s 1992 assault conviction may be used to enhance the current assault charge to a felony, the district was vested with jurisdiction over this case.[2] Appellant=s fourth issue is overruled.[3]
Accordingly, the judgment of the trial court is affirmed.
/s/ J. Harvey Hudson
Justice
Judgment rendered and Opinion filed December 9, 2003.
Panel consists of Justices Yates, Hudson, and Fowler.
Do Not Publish C Tex. R. App. P. 47.2(b).
[1] The State informed the trial court that the information from the 1992 offense had been destroyed.
[2] The State further responds that appellant should have challenged the sufficiency of the evidence concerning his prior conviction by taking the case to trial. We agree. AIt is well settled that a judicial confession, standing alone, is sufficient to sustain a conviction upon a guilty plea.@ Dinnery v. State, 592 S.W.2d 343, 353 (Tex. Crim. App. 1980) (op. on reh=g) (emphasis in original); Breaux v. State, 16 S.W.3d 854, 856 (Tex. App.CHouston [14th Dist.] 2000, pet. ref=d).
[3] Appellant brings a fifth issue in the event that we are unable to reach the merits of his first four issues. Appellant states that he entered his plea of no contest because he expected to receive full appellate review of his written pretrial motions to dismiss his indictment and to strike the enhancement paragraph. Based on his expectation of appellate review of his pretrial motions, appellant asserts that if we cannot reach his other issues, then his plea of no contest is jurisdictionally defective because it was not entered into knowingly and intelligently. However, as the State points out, appellant timely filed his notice of appeal, specifying that his appeal is for a jurisdictional defect; specifying that the substance of his appeal was raised by written motion, on which the trial court ruled prior to trial; and stating the trial court granted permission to appeal. Tex. R. App. P. 25.2(b)(3), 60 Tex. B.J. 411, 434 (Tex. Crim. App. 1997, amended 2003). Thus, we have jurisdiction over appellant=s appeal and appellant=s fifth issue is overruled.