Eric Simon Pelache v. State

NUMBER 13-08-00463-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG

ERIC SIMON PELACHE, Appellant,

v.

THE STATE OF TEXAS, Appellee.

On appeal from the 103rd District Court
of Cameron County, Texas.

MEMORANDUM OPINION ON REMAND

Before Chief Justice Valdez and Justices Garza and Vela
Memorandum Opinion on Remand by Chief Justice Valdez
Appellant, Eric Simon Pelache, was charged by indictment with robbery, a

second-degree felony. See TEX. PENAL CODE ANN. § 29.02 (Vernon 2003). After

a jury trial, Pelache was convicted of the lesser-included offense of theft from a

person, a state-jail felony. See id. § 31.03(a)-(b), (e)(4)(B) (Vernon 2003).

Because the indictment contained an enhancement paragraph documenting a
prior felony conviction for aggravated robbery, and the State provided Pelache

with notice of two additional felony convictions—one for another aggravated

robbery, and a 1995 conviction for unlawful possession of a controlled

substance—the trial court sentenced Pelache to twenty years’ confinement in the

Institutional Division of the Texas Department of Criminal Justice, in accordance

with the punishment range prescribed for second-degree felonies. See id. §§

12.33, 12.35(c), 12.42 (Vernon Supp. 2010).

On appeal, Pelache argues that: (1) the evidence is legally and factually

insufficient to support the trial court’s finding that he had been previously

convicted of unlawful possession of a controlled substance; (2) the trial court

erred in applying the punishment range for second-degree felonies when it

should have applied the punishment range corresponding to state-jail felonies or,

in the alternative, third-degree felonies; and (3) the State’s motion to enhance

punishment and amend the indictment did not provide him with sufficient notice

and, therefore, violated his right to due process.

On original submission, this Court reversed Pelache’s punishment based

on his third issue and remanded for a new punishment hearing. Pelache v.

State, 294 S.W.3d 248, 249-50, 52 (Tex. App.–Corpus Christi 2009), rev’d, 324

S.W.3d 568 (Tex. Crim. App. 2010). The Texas Court of Criminal Appeals

reversed and remanded for us to consider Pelache’s remaining issues. Pelache,

324 S.W.3d at 569. We affirm as modified.

I. BACKGROUND

2
 The indictment in this case charged Pelache with robbing a convenience

store, a second-degree felony. The indictment also contained an enhancement

paragraph referencing a prior conviction for aggravated robbery committed on

April 8, 2000.

On April 15, 2008, Pelache went to trial on the robbery offense. A

convenience-store clerk identified Pelache as the person who came into the

convenience store and demanded the money that was in the cash register. The

clerk recalled that Pelache had one hand in his pocket, which made her think that

Pelache had a weapon. The clerk testified that Pelache’s actions made her fear

for her life. Despite this testimony, on April 18, 2008, the jury convicted Pelache

of the lesser-included, state-jail-felony offense of theft from a person.1 The trial

court set Pelache’s punishment hearing for May 2, 2008.

Prior to the punishment hearing, on April 23, 2008, the State notified

Pelache of its intent to use two more prior felony convictions for enhancement

purposes by filing a motion for enhancement and a request for leave of court to

amend the indictment. The offenses were a second aggravated robbery

committed on April 8, 2000, and unlawful possession of a controlled substance

committed in 1995.2 In its motion, the State referenced sections 12.35 and 12.42

of the Texas Penal Code and noted that Pelache’s ―punishment [should] be

increase[d] to reflect the enhancements.‖ See id. §§ 12.35, 12.42.
1
The jury did not find that Pelache used a deadly weapon in the commission of the theft-
from-a-person offense.

2
The Texas Court of Criminal Appeals mentioned in its majority opinion in this matter that
―[t]he record reflects that the state-jail felony conviction for possession of a controlled substance
was ultimately not used to enhance appellant’s punishment.‖ Pelache v. State, 324 S.W.3d 568,
570 n.9 (Tex. Crim. App. 2010). Moreover, the record reflects that Pelache was convicted of the
two aggravated robberies on September 5, 2000.

3
 In the meantime, Pelache’s punishment hearing was reset from May 2,

2008 to May 9, 2008. At Pelache’s punishment hearing, the parties discussed

whether Pelache’s prior felony convictions could be used to enhance his

sentence in the instant case to the second-degree-felony range. The State

argued the following:

Further, I’d ask the Court to take judicial notice of the
[S]tate’s motion to enhance punishment that was filed back on April
23rd of 2008. That was also given to [the defense], served on [the
defense]. In regards to that [S]tate’s motion for enhancement, we
are alleging three different priors, more specifically, in Cause No.
00-CR-528-D. The defendant was convicted of the offense of
aggravated robbery back on September the 5th of 2000.

....

And that also was in the enhancement paragraph in the
actual indictment, but we also gave them notice again in regards
to—we filed another motion for enhancement.

In addition to that motion for enhancement, we also allege
another count where Mr. Pelache was also convicted for the
offense of aggravated robbery, which is a (3)(g) offense in 00-CR-
522-D. That conviction also occurred back on or about September
the 5th of 2007 [sic].

In addition to that, we are alleging that in 95-CR-1523-D, the
same defendant was also convicted for the offense of possession
of [a] controlled substance back on September the 5th of 2007—or
2000 [sic]. I’m sorry, Judge.

Now, in regards to that, Judge, basically, I do have some
case law. What I believe is applicable would be [section] 12.35 of
the [Texas] Penal Code, specifically subsection (c). Basically what
happens in regards to—we have a state-jail conviction with the
pending aggravated robbery, one of the aggravated robberies.
That would then enhance it to a third-degree felony, using that logic
in 12.35(c).

And how we get there, Judge, is basically, the prior offense,
the aggravated robbery is a (3)(g) offense. That (3)(g) offense,
once it’s proven, will then enhance Mr. Pelache to a third degree.

4
 In regards to that, there’s also—I would believe that 12.42 is
also applicable under subsection (a)(3). At this point in time, once
you enhance them[,] once with the aggravated robbery, you
enhance them again with the second aggravated robbery.

....

The case law is specific that the convictions can occur on
the same day. In other words, the defendant doesn’t have to go to
prison one day, come back out, and go back to prison again under
12.42 and 12.35, Judge.

So basically, the range of punishment, my argument would
be, would be two to twenty, which would be a second-degree
felony.

....

I do have, for the Court’s information, Gowen v. State, which
talks about enhancements in regards to this issue. It came up in
that case. It speaks to it that they don’t have to be in sequential
order, that you can actually have a sentence on the same day if
they are a (3)(g) offense, which aggravated robbery is.

In response, Pelache’s counsel argued that:

[Pelache’s counsel]: Your Honor, I disagree with
counsel. His argument is basically that
under 12.35(c), the offense that Mr.
Pelache was convicted of, and that is, a
theft from a person, if we look at the
offense of theft from a person, that is a
non-aggravated state-jail felony.

....

His argument is that under
12.35(c), that non-aggravated state-jail
felony is enhanced to—and it’s not an
enhancement, but it’s elevated to an
aggravated state-jail felony if you find
that there was a weapon that was used
in the commission of the non-
aggravated state-jail felony.

5
THE COURT: Or that the individual has
previously been finally convicted of any
felony listed in [section] (3)(g)(a)(1), Art.
42.12, Code of Criminal Procedure, or
for which the judgment contains an
affirmative finding under [section]
(3)(g)(a)(2), Art. 42.12, Code of Criminal
Procedure.

[Pelache’s Counsel]: Correct. Now, my argument is
that no notice was provided with regards
to enhancing Mr. Pelache’s state-jail
felony from a non-aggravated state-jail
felony to an aggravated state-jail felony.

And if the Court will notice, their
continuous argument is, they call it an
enhancement. They provided me a
notice of an enhancement enhancing his
state-jail felony, the theft from a person,
to an aggravated state-jail felony,
making notice of the enhancement.
Well, in a state-jail felony, the only way
you can enhance is under Art. 12.42,
and that is not applicable in this case.

It’s my position that he is not
subject to having his state-jail felony
enhanced from a non-aggravated to an
aggravated because the notice that has
been provided by the [S]tate has been in
the form of an enhancement, and that
notice was done pursuant to 12.42,
which is not applicable. And it’s our
position that the only offense and range
of punishment that you can consider in
this case is basically a state-jail felony,
between six to two months—between
six months to two years.

In the alternative, if the Court
should not agree with us, not that I’m
agreeing, but the one that would fit more
than what the [S]tate is arguing, that it’s
a second, would be a third-degree, not a

6
 second-degree felony. We would object
to that.

The crux of Pelache’s argument at the punishment hearing focused on

lack of notice. However, Pelache also argued that there was ―only one [prior]

conviction, really,‖ meaning Pelache should, at most, be sentenced in

accordance with the punishment range for third-degree felonies.

After hearing arguments from both parties and testimony from several

witnesses, the trial court opined:

Okay. I’m going to—I’m looking at the case law they’ve
given me, and according to the case law, ―There is no requirement
that a prior felony conviction used to enhance punishment for a
state-jail felony to a second-degree felony punishment under a
statute permitting such enhancement if defendant has been once
before convicted of a felony be final prior to the commission of the
additional prior (3)(g) felony used for initial enhancement of
punishment for the primary state-jail felony to the third-degree
felony punishment, although both the prior convictions for the (3)(g)
felony and the once [sic] before convicted felony must be final
before the commission of the primary state-jail felony.‖ And both of
these were final felony prior convictions prior to the commission of
the state-jail. So I am inclined to agree with the [S]tate that it is a
second-degree, and that the enhancement is good.

Pelache’s counsel then argued:

We would object to that finding. It is our position that this is
a matter that should be enhanced, if any, to a third-degree. The
convictions that the [S]tate is relying upon are two convictions that
occurred on the same date, that were prosecuted on the same
date, and that were sentenced on the same date. Therefore, they
are not prior—there’s only one conviction, really, that there is
because they occurred as a result of one criminal transaction, and
he was sentenced pursuant to one criminal proceeding. Therefore,
they are not separate convictions; they are one.

The trial court rejected Pelache’s argument and orally found that

Pelache’s sentence should be enhanced to second-degree-felony status. The

7
trial court sentenced Pelache to twenty years’ confinement. Pelache appealed

the trial court’s punishment findings.

On original submission, this Court held that Pelache’s substantial rights

were harmed by the State’s notification of its intent to enhance his punishment

that was filed six days after the jury rendered its verdict in this case; accordingly,

we reversed Pelache’s punishment and remanded for a new punishment hearing.

Pelache, 294 S.W.3d at 249-50, 52, rev’d, 324 S.W.3d at 569. The Texas Court

of Criminal Appeals reversed and held that Pelache’s ―federal constitutional due-

process rights were not violated.‖ Pelache, 324 S.W.3d at 569. Specifically, the

court of criminal appeals stated that:

An application of the aforementioned cases leads us to conclude
that the State’s April 23, 2008 enhancement notice was sufficient to
put appellant [Pelache] on notice of ―the nature of the
[enhancement] charges he [was] accused of.‖ In determining
whether appellant received sufficient notice of the State’s intent to
enhance punishment, we look to the record to identify whether
appellant’s defense was impaired by the timing of the State’s
notice. Similar to the defendants in Oyler and Villescas, appellant
did not request a continuance, appear surprised by the allegations,
or argue that he was unprepared to defend against the prior
conviction allegations. In fact, we have held that ―when a
defendant has no defense to the enhancement allegation and has
not suggested the need for a continuance in order to prepare one,
notice given at the beginning of the punishment phase satisfies the
federal constitution.‖

Id. at 577 (citing Villescas v. State, 189 S.W.3d 290, 294 (Tex. Crim. App. 2006)).

Given that the court of criminal appeals has addressed Pelache’s third issue, we

need only address his first two issues pertaining to: (1) the sufficiency of the

evidence supporting the trial court’s finding that Pelache had been previously

8
convicted of unlawful possession of a controlled substance; and (2) the trial

court’s application of the punishment range for second-degree felonies.

II. EVIDENTIARY SUFFICIENCY OF THE STATE’S ENHANCEMENT ALLEGATIONS

First, Pelache challenges the sufficiency of the evidence supporting the

finding that he was previously convicted of the offense of unlawful possession of

a controlled substance. Specifically, Pelache argues that the State matched

fingerprints and identified Pelache as the individual in the aggravated robbery

cases, but such evidence was not introduced to link Pelache to the unlawful-

possession-of-a-controlled-substance offense. Further, Pelache argues that the

record does not contain a finding from the trial court regarding the State’s

enhancement allegations. The State argues that: (1) the trial court orally found

that the State’s enhancement allegations were ―true‖; and (2) it is immaterial

whether the evidence is sufficient to support the unlawful-possession-of-a-

controlled-substance offense because the evidence demonstrated that Pelache

had been twice convicted of aggravated robberies prior to his participation in the

offense in this case.

A. Applicable Law

The court of criminal appeals has recently held that there is ―no

meaningful distinction between the Jackson v. Virginia legal sufficiency standard

and the Clewis factual-sufficiency standard‖ and that the Jackson standard ―is the

only standard that a reviewing court should apply in determining whether the

evidence is sufficient to support each element of a criminal offense that the State

is required to prove beyond a reasonable doubt.‖ Brooks v. State, 323 S.W.3d

893, 902-03, 912 (Tex. Crim. App. 2010) (plurality op.). Accordingly, we review
9
Pelache’s claims of evidentiary sufficiency under ―a rigorous and proper

application‖ of the Jackson standard of review. Id. at 906-07, 912.

Under the Jackson standard, ―the relevant question is whether, after

viewing the evidence in the light most favorable to the prosecution, any rational

trier of fact could have found the essential elements of the crime beyond a

reasonable doubt.‖ Jackson v. Virginia, 443 U.S. 307, 319 (1979); see Brooks,

323 S.W.3d at 898-99 (characterizing the Jackson standard as: ―Considering all

of the evidence in the light most favorable to the verdict, was a jury rationally

justified in finding guilt beyond a reasonable doubt‖). ―[T]he fact[-]finder’s role as

weigher of the evidence is preserved through a legal conclusion that upon judicial

review all of the evidence is to be considered in the light most favorable to the

prosecution.‖ Jackson, 443 U.S. at 319 (emphasis in original); see also TEX.

CODE CRIM. PROC. ANN. art. 38.04 (Vernon 1979) (―The jury, in all cases is the

exclusive judge of facts proved and the weight to be given to the

testimony . . . .‖); Wesbrook v. State, 29 S.W.3d 103, 111 (Tex. Crim. App. 2000)

(―The jury is the exclusive judge of the credibility of witnesses and of the weight

to be given testimony, and it is also the exclusive province of the jury to reconcile

conflicts in the evidence.‖).

The State bears the burden of proving an enhancement allegation beyond

a reasonable doubt. Jordan v. State, 256 S.W.3d 286, 291 (Tex. Crim. App.

2008); see Zimmer v. State, 989 S.W.2d 48, 50 (Tex. App.–San Antonio 1998,

pet. ref’d). A prior conviction alleged for enhancement may by proven by, among

other things: (1) ―certified copies of a judgment and sentence and authenticated

10
copies of the Texas Department of Corrections records, including fingerprints,

supported by expert testimony matching them to the known prints of the

defendant‖; (2) ―offering the testimony of a witness who personally knows the

defendant and the fact of his prior conviction and identifies him‖; (3) ―stipulations

or the judicial admission of a defendant‖; or (4) ―matching a photograph of the

defendant in a penitentiary packet or other official record to the defendant at

trial.‖ Zimmer, 989 S.W.2d at 50 (citing Beck v. State, 719 S.W.2d 205, 209

(Tex. Crim. App. 1986); Littles v. State, 726 S.W.2d 26, 31 (Tex. Crim. App.

1984)).

B. Discussion

Pelache specifically complains about the sufficiency of the evidence

pertaining to a prior felony conviction for unlawful possession of a controlled

substance. During the punishment phase, a penitentiary packet was admitted

into evidence. Enclosed in the pen packet were copies of judgments for two

instances of felony aggravated robbery and felony unlawful possession of a

controlled substance. The two judgments corresponding to the aggravated

robberies included a card containing fingerprints from April 8, 2000. Also among

the evidence admitted was a fingerprint card created after Pelache was arrested

for the charged offense in this case. The judgment corresponding to the

unlawful-possession-of-a-controlled-substance offense did not have a fingerprint

card attached to it, nor did any of the State’s witnesses provide testimony, other

than simply reading the judgment into the record, that Pelache was indeed the

perpetrator of that offense.

11
 Based on the record before us, we cannot say that the State carried its

burden of proving the unlawful-possession-of-a-controlled-substance

enhancement beyond a reasonable doubt. See Jordan, 256 S.W.3d at 291; see

also Zimmer, 989 S.W.2d at 50. Nevertheless, we conclude that the sufficiency

of the evidence pertaining to the unlawful-possession-of-a-controlled-substance

offense is immaterial because there is sufficient evidence to support the trial

court’s finding that Pelache had been twice convicted of felony aggravated

robbery and because, as we discuss later, sections 12.35(c) and 12.42 only

required that the State prove that Pelache was finally convicted of the aggravated

robberies. See TEX. PENAL CODE ANN. §§ 12.35(c), 12.42; see also Jackson, 443

U.S. at 319; Brooks, 323 S.W.3d at 902-03, 912.

Luis Carlos De Leon, an investigator with the Cameron County District

Attorney’s Office and a fingerprint identification expert, concluded that, based on

his training and experience, the fingerprints from the April 8, 2000 fingerprint card

matched the fingerprint card created in this case. De Leon then identified

Pelache in open court as the individual whose fingerprints are contained in both

fingerprint cards. The State called several investigators to testify as to their

professional opinion regarding Pelache’s reputation for peacefulness in the

community. Each of the investigators stated that Pelache had a bad reputation

and that he regularly committed crimes. In addition, Nelda Alvarez, an employee

at H.E.B. in McAllen, Texas, testified that she previously worked at a Circle K in

Harlingen, Texas, and that on April 8, 2000, Pelache robbed the Circle K.

Alvarez identified Pelache in open court as the perpetrator and noted that she

12
believed that, as a result of the incident, Pelache was convicted of aggravated

robbery. Charles Fechner, a detective for the City of Harlingen, and Wilfredo

Guerra, an investigator for the Harlingen Police Department, both identified the

two aggravated robbery judgments as separate incidents occurring at different

locations on the same evening—April 8, 2000—and that Pelache was the

perpetrator and used a crowbar, a weapon they described as a deadly weapon,

in both offenses. Based on this evidence, we conclude that the State satisfied its

burden of proving that Pelache had been twice convicted of aggravated robbery

beyond a reasonable doubt and that the trial court was rationally justified in

concluding that the State’s aggravated-robbery enhancements were true.

Accordingly, we find that the evidence supporting the trial court’s finding

regarding the aggravated robberies is sufficient. See Jackson, 443 U.S. at 319;

Brooks, 323 S.W.3d at 902-03, 912; Jordan, 256 S.W.3d at 291; Zimmer, 989

S.W.2d at 50.

Despite this evidence, Pelache also appears to argue that: (1) the

aggravated robbery offenses constituted one offense because they were tried

together and the judgment was rendered on the same day; and (2) the law

requires that a prior conviction become final before the commission of the other

prior felony. As noted above, the State presented copies of the judgments for

Pelache’s prior aggravated robbery convictions, thus demonstrating that the

convictions were for two separate and distinct robberies that occurred on the

same evening. Therefore, the evidence does not support a finding that the

aggravated robberies amounted to one conviction for enhancement purposes.

13
See Spradling v. State, 773 S.W.2d 553, 556 (Tex. Crim. App. 1989) (holding

that when ―there are two victims, a separate victim for each offense, the acts,

though occurring at the same time and place, constitute separate offenses

involving separate issues of law, and separate prosecutions are not barred by

former jeopardy‖); see also Sanchez v. State, 269 S.W.3d 169, 170 (Tex. App.–

Amarillo 2008, pet. ref’d) (stating that the protection against double jeopardy is

inapplicable where separate and distinct offenses occur during the same

transaction).

To the extent that Pelache argues that the law requires that a prior

conviction become final before the commission of the other prior felony, we note

that there is no such requirement. See Gowan v. State, 18 S.W.3d 305, 307

(Tex. App.–Beaumont 2000, pet. ref’d). In order to enhance an offender’s

sentence, the State must present evidence that the prior convictions used for

enhancement purposes are final before the commission of the primary offense.

See Johnson v. State, 784 S.W.2d 413, 414 (Tex. Crim. App. 1990); see also

Gowan, 18 S.W.3d at 307; Jordan v. State, 979 S.W.2d 75, 77 (Tex. App.–Austin

1998), aff’d, 36 S.W.3d 871 (Tex. Crim. App. 2001). Here, Pelache was

convicted of two instances of aggravated robbery and both convictions were final

before Pelache committed the offense in this case. Therefore, Pelache’s

contention that the prior aggravated robbery convictions were not final and could

not be used for enhancement purposes is unfounded. Accordingly, we overrule

Pelache’s first issue.

III. PUNISHMENT RANGE

14
 Pelache next argues that the trial court erred in applying the punishment

range for second-degree felonies. Specifically, Pelache asserts that the

punishment range for second-degree felonies should not have been applied in

this case because the trial court did not make an oral or written finding that he

had been previously convicted of two felonies. Pelache contends that the trial

court was obligated to make its findings regarding the State’s enhancement

allegations in the judgment, and because this was not done, the state-jail felony

or, in the alternative, the third-degree felony punishment range should have been

applied. The State argues that the trial court made an oral finding during the

punishment hearing that Pelache was previously convicted of at least two prior

felonies and then sentenced Pelache in accordance with section 12.35(c) and the

habitual-felony-offender statute codified in section 12.42 of the penal code. See

TEX. PENAL CODE ANN. §§ 12.35(c), 12.42.

A. Applicable Law

With regard to the application of the applicable punishment range, the

court of criminal appeals has stated:

At the sentencing phase, neither party carries the burden of
proving what punishment should be assessed within the statutorily
prescribed range applicable to a given offense. Generally, the
fact[-]finder’s decision of what particular sentence to assess is a
―normative, discretionary function‖ that does not depend on the
resolution of specific facts. However, when the State seeks to
enhance a defendant’s sentence for the primary offense by alleging
that a defendant has a prior conviction, and the defendant enters a
plea of not true, the fact[-]finder must decide whether the State has
sustained its burden by entering a finding that the enhancement
allegation is either true or not true. In essence, the assessment of
punishment involves two types of deliberations when the state has
alleged, and the defendant has entered a plea of not true to, a prior
conviction used for enhancement purposes. First, the fact[-]finder
engages in a deductive, discrete fact-finding process to determine
15
 whether the State has proved that the enhancement allegation is
true. And second, considering all of the evidence admitted during
the guilt and punishment phases, the fact[-]finder engages in a
normative process that is uninhibited by any required, specific fact
determination to decide what particular punishment to assess within
the range prescribed by law.

Jordan, 256 S.W.3d at 291-92 (citations omitted).

B. Discussion

With regard to Pelache’s argument that the trial court failed to make an

oral or written finding as to the State’s enhancement allegations, we note that the

reporter’s record reflects that the trial court orally found the State’s enhancement

allegations to be true. Furthermore, the written judgment specifically indicates

that the trial court found the State’s enhancement allegations to be true. But see

Speth v. State, 6 S.W.3d 530, 532 (Tex. Crim. App. 1999) (listing the twenty-nine

items the judgment should reflect, none of which include specific findings

regarding the punishment enhancement allegations in the indictment); see also

Walls v. State, No. 06-04-00009-CR, 2004 Tex. App. LEXIS 5704, at **10-11

(Tex. App.–Texarkana June 29, 2004, no pet.) (mem. op., not designated for

publication) (―Article 42.01 does not require that the judgment include specific

findings regarding the punishment enhancement allegations in the indictment.‖)

(citing TEX. CODE CRIM. PROC. ANN. art. 42.01, § 1 (Vernon Supp. 2010)). We

therefore conclude that this argument is without merit.3

3
Despite our holding, we find an error in the written judgment regarding Pelache’s plea to
the State’s enhancement allegations. The reporter’s record clearly reflects that Pelache pleaded
―not true‖ to the enhancement allegations in open court, though the written judgment indicates
that Pelache did not enter a plea. Because there is sufficient evidence in the record, we reform
the judgment to reflect that Pelache pleaded ―not true‖ to the State’s enhancement allegations.
See TEX. R. APP. P. 43.2(b); see also Bigley v. State, 865 S.W.2d 26, 27 (Tex. Crim. App. 1993).

16
 Pelache further contends that the trial court erroneously applied the

punishment range for second-degree felonies. Pelache argues that this offense

should have been punished under the punishment range associated with state-

jail felonies or, in the alternative, third-degree felonies. The State disagrees and

directs us to sections 12.35(c) and 12.42(a)(3) of the penal code and article

42.12, section 3g of the code of criminal procedure. See TEX. PENAL CODE ANN.

§§ 12.35(c), 12.42(a)(3); see also TEX. CODE CRIM. PROC. ANN. art. 42.12, § 3g

(Vernon Supp. 2010).

Section 12.35(c) of the penal code provides that:

An individual adjudged guilty of a state[-]jail felony shall be
punished for a third[-]degree felony if it is shown on the trial of the
offense that:

(1) a deadly weapon as defined by Section 1.07 was used or
exhibited during the commission of the offense or during
immediate flight following the commission of the offense, and
that the individual used or exhibited the deadly weapon or
was a party to the offense and knew that a deadly weapon
would be used or exhibited; or

(2) the individual has previously been finally convicted of any
felony:

(A) under Section 21.02 or listed in Section 3g(a)(1), Article
42.12, Code of Criminal Procedure; or

(B) for which the judgment contains an affirmative finding
under Section 3g(a)(2), Article 42.12, Code of Criminal
Procedure.

TEX. PENAL CODE ANN. § 12.35(c). Section 3g(a)(1) of article 42.12 of the code of

criminal procedure references aggravated robbery offenses, as criminalized in

17
section 29.03 of the penal code. TEX. CODE CRIM. PROC. ANN. art. 42.12, §

3g(a)(1)(F); see TEX. PENAL CODE ANN. § 29.03 (Vernon 2003).

In the instant case, Pelache was convicted of theft from a person, a state-

jail felony. During the punishment phase, the State introduced evidence that

Pelache had been twice convicted of aggravated robbery, an article 42.12,

section 3g offense, prior to committing this offense. Because Pelache had been

previously convicted of a section 3g offense, the trial court properly used it to

enhance the punishment range for the theft-from-a-person offense to the range

associated with third-degree felonies. See TEX. PENAL CODE ANN. §

12.35(c)(2)(B). However, the punishment range for this offense was further

enhanced by section 12.42(a)(3). See id. § 12.42(a)(3).

Section 12.42(a)(3) provides that:

Except as provided by Subsection (c)(2), if it is shown on the trial of
a state[-]jail felony punishable under Section 12.35(c) or on the trial
of a third-degree felony that the defendant has been once before
convicted of a felony, on conviction he shall be punished for a
second-degree felony.

Id. Because the record demonstrates that Pelache was subject to the

punishment range corresponding to section 12.35(c) and because he has two

prior felony convictions for aggravated robbery, the trial court properly sentenced

Pelache within the range for second-degree felonies in accordance with section

12.42(a)(3). See id. §§ 12.35(c), 12.42(a)(3). Furthermore, the trial court’s

imposition of a twenty-year sentence falls within the punishment range

prescribed for second-degree felonies. See id. § 12.33 (―An individual adjudged

guilty of a felony of the second degree shall be punished by imprisonment . . . for

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any term of not more than 20 years or less than 2 years.‖). Therefore, based on

the foregoing, we cannot say that the trial court erred in applying the second-

degree-felony punishment range to sentence Pelache to twenty years’

confinement. See id. §§ 12.33, 12.35(c), 12.42(a)(3); TEX. CODE CRIM. PROC.

ANN. art. 42.12, § 3g; see also Jordan, 256 S.W.3d at 291-92. Accordingly, we

overrule Pelache’s second issue.

IV. CONCLUSION

Because the record contains sufficient evidence indicating that Pelache

pleaded ―not true‖ to the State’s enhancement allegations, we reform the

judgment to reflect as such, and we affirm the judgment as modified.

_________________
ROGELIO VALDEZ
Chief Justice

Do not publish.
TEX. R. APP. P. 47.2(b)
Delivered and filed the
3rd day of March, 2011.

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