Gutierrez, Jose George A/K/A Jose Jorge Gutierrez A/K/A Joe George Gutierrez A/K/A Jorge Jose Gutierrez v. State

NUMBER 13-00-231-CR COURT OF APPEALS THIRTEENTH DISTRICT OF TEXAS CORPUS CHRISTI ___________________________________________________________________ JOSE GEORGE GUTIERREZ, A/K/A JOSE JORGE GUTIERREZ, A/K/A JOE GEORGE GUTIERREZ, A/K/A JORGE JOSE GUTIERREZ , Appellant, v. THE STATE OF TEXAS , Appellee. ___________________________________________________________________ On appeal from the 197th District Court of Cameron County, Texas. ____________________________________________________________________ O P I N I O N Before Chief Justice Valdez and Justices Hinojosa and Kennedy(1) Opinion by Justice Kennedy Appellant was indicted for felony driving while intoxicated (DWI). The indictment alleged the primary offense followed by allegations of seven previous DWI convictions which were included in order to raise the offense to the grade of felony. Following those allegations were two paragraphs alleging an aggravated assault conviction and a felony DWI conviction. These latter two paragraphs were designed to convict appellant as an habitual offender. A jury convicted appellant of felony DWI as alleged. Then, following a separate hearing on punishment, the jury found the allegations used for enhancement to be true and assessed punishment at confinement for forty-two years. Appellant's one issue on appeal is: The trial court erred in finding "true" the prior conviction in Cause No. 91-CR-1387-C in relation to the habitual felony offender paragraph because prior DWI convictions may not be used under the general enhancement statute. Prior to the effective date of Penal Code section 49.09(f)(2), the use of prior DWI convictions for enhancement was precluded. Section 49.09(f) was intended to apply only to offenses that occurred after September 1, 1995. The thrust of appellant's issue is that although the date of his primary offense is alleged to be after September 1, 1995 (January 18, 1999) the primary offense is enhanced by two convictions which occurred prior to September 1, 1995 (1986 and 1994). As a part of this argument, he alleges that the two priors are essential elements of the primary offense. To advance this argument further, if the 1986 and 1994 convictions are part of the primary offense, then it can be argued that part of the primary offense occurred before the date when prior DWI convictions could be used under the general enhancement provisions of law in effect before September 1, 1995. We reject this argument. Section 49.09(f) says simply: "A conviction may be used for purposes of enhancement under this section or enhancement under Subchapter D, Chapter 12,(3) but not under both this section and Subchapter D." Appellant cites Gibson v. State, 995 S.W.2d 693 (Tex. Crim. App. 1999), in support of his argument. It is true, as appellant states in his brief, (citing Gibson, 995 S.W.(2d) at 696) "The prior intoxication-related offenses are elements of the offense of driving while intoxicated. They define the offense as a felony and are admitted into evidence as part of the State's proof of its case-in-chief during the guilt-innocense stage of the trial." This is not to say that because both convictions (1986 and 1994) occurred prior to September 1, 1995, they may not be used to enhance the punishment for felony DWI. Nothing in Gibson or Section 49.09(f) says this. In State v. Nelms, 775 S.W.2d 25, 26 (Tex. App. ­ Houston [14th Dist.] 1989, pet. ref'd) the court said: Appellee presupposes that the use of the previous conviction, Cause No. 7,536, to elevate the misdemeanor charge in Cause No. 15,252 to a third degree felony under section 31.03(e)(4)(C) is an "element" of this offense. This is not the situation. . . . The use of the prior convictions are included to elevate the offense to a third degree felony and confer jurisdiction on the district court. We deny the relief sought in appellant's brief and AFFIRM the judgment of the trial court. NOAH KENNEDY Retired Justice Do not publish . Tex. R. App. P. 47.3(b). Opinion delivered and filed this the 25th day of January, 2001. 1. Retired Justice Noah Kennedy assigned to this Court by the Chief Justice of the Supreme Court of Texas pursuant to Tex. Gov't Code Ann. § 74.003 (Vernon 1998). 2. Tex. Pen. Code Ann. § 49.09(f) (Vernon Supp. 2001). 3. Tex. Pen. Code Ann. § 12.41 et seq. (Vernon 2001).