No. 05-08-00423-CR
Opinion Filed April 14, 2009. DO NOT PUBLISH Tex. R. App. P. 47.
On Appeal from the 199th Judicial District Court Collin County, Texas, Trial Court Cause No. 199-82161-06.
Before Justices RICHTER, LANG, and MURPHY.
DOUGLAS S. LANG, Justice.
Fletcher Berry Eisenmenger appeals the trial court's judgment convicting him of possession of heroin in an amount less than one gram, enhanced by two prior felony convictions. The jury found Eisenmenger guilty and the two enhancements true. Punishment was assessed at imprisonment for sixteen years and seven months. In a single issue, Eisenmenger argues the trial court erred when it admitted evidence of his prior felony convictions because those convictions were too remote in time to enhance his punishment. We decide Eisenmenger's sole issue against him and affirm the trial court's judgment. Because all dispositive issues are well settled in law, we issue this memorandum opinion. See Tex. R. App. P. 47.2(a), 47.4.
I. FACTUAL AND PROCEDURAL BACKGROUND
On August 29, 2006, Eisenmenger was indicted for "intentionally and knowingly possess[ing] a controlled substance, namely: heroin, in the amount of less than one (1) gram, by aggregate weight, including adulterants and dilutants." The indictment contained two enhancement paragraphs alleging a prior 1978 felony burglary conviction and a prior 1998 felony robbery conviction. Eisenmenger filed a pretrial "motion to quash and/or strike" the enhancement paragraph related to the 1978 felony conviction based on his "belie[f] [that] this enhancement paragraph [was] unfairly prejudicial and too remote in time, being it is almost thirty years ago, to enhance punishment." The motion was denied. The trial proceeded and the jury found Eisenmenger guilty as charged. Prior to the punishment phase of trial, Eisenmenger pleaded not true to the allegations contained in the enhancement paragraphs. During the punishment phase, his counsel objected to the admission of evidence of his 1978 felony conviction and 1998 felony conviction as follows: Your Honor, we object to Exhibit Number 11. It's an exhibit from 1978, we would argue, objection as to relevancy. Objection as to 403, it's unfairly prejudicial based on the remoteness of time, it's been over 30 years ago and being brought into a trial against Mr. Eisenmenger here today. We object to Exhibit Number 12, same objections, Your Honor, relevance as well as objection 403. Basically unfairly prejudicial regarding an incident that happened back, I believe, in 1996, approximately 15 years ago, Your Honor. I believe it would be unfairly prejudicial to Mr. Eisenmenger in this part of the case, in this trial as remote in time. The objections were overruled. The jury found the enhancement paragraphs true, elevating the possession charge from a state jail felony to a second degree felony, and assessed punishment at sixteen years and seven months' imprisonment with no fine. Eisenmenger filed a timely notice of appeal. II. PRIOR FELONY CONVICTIONS USED FOR ENHANCEMENT
In his sole issue, Eisenmenger argues the trial court erred when during the hearing on punishment, it overruled his objection and admitted the evidence of his prior felony convictions because those convictions were too remote in time to enhance his punishment. The State responds Eisenmenger failed to preserve this issue for appeal. Also, the State asserts the enhancement statute at issue does not prohibit the use of "remote" convictions. A. Standard of Review
An appellate court reviews a trial court's decision to admit evidence under an abuse of discretion standard. See Ramos v. State, 245 S.W.3d 410, 417-18 (Tex.Crim.App. 2008). The trial court's decision will not be overturned so long as it is correct under any theory of law applicable to the case and the decision is within the zone of reasonable disagreement. See id. at 418. B. Applicable Law
The offense of possession of a controlled substance in an amount less than one gram is a state jail felony. Tex. Health Safety Code Ann. § 481.115(a)-(b) (Vernon 2003). Normally, a defendant convicted of a state jail felony is punished by confinement in a state jail for not more than two years or less than 180 days. Tex. Penal Code Ann. § 12.35(a) (Vernon Supp. 2004). However, a defendant's range of punishment can be enhanced "[i]f 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 conviction [has] become final." Id. at § 12.42(a)(2) (Vernon Supp. 2008). In that case, punishment will be assessed for a second degree felony and the defendant "shall be . . . imprison[ed] . . . for any term of not more than 20 years or less than 2 years." Id.; see also Tex. Penal Code Ann. § 12.33 (Vernon 2003). The admissibility of evidence of prior convictions during the punishment phase of trial is governed by Texas Code of Criminal Procedure article 37.07, section 3(a)(1). Under that section, "evidence may be offered by the state and the defendant as to any matter relevant to sentencing, including . . . the prior criminal record of the defendant." Tex. Code Crim. Proc. Ann. Art. 37.07 § 3(a)(1) (Vernon Supp. 2008). Convictions admissible under article 37.07, section 3(a)(1) are not for impeachment purposes, but are for assessing punishment. Barnett v. State, 847 S.W.2d 678, 679-80 (Tex.App.-Texarkana 1993, no pet.). Rule 609(b) applies only to convictions introduced for impeachment purposes. See Tex. R. Evid. 609(b); see also Barnett, 847 S.W.2d at 679. Under this rule, "[e]vidence of a conviction . . . is not admissible if a period of more than ten years has elapsed since the date of the conviction or of the release of the witness from the confinement imposed for that conviction, whichever is the later date, unless the court determines, in the interests of justice, that the probative value of the conviction supported by specific facts and circumstances substantially outweighs its prejudicial effect." Tex. R. Evid. 609(b). "Convictions introduced at the punishment stage of the trial are not subject to the remoteness limitations contained in [rule of evidence] 609(b)." Barnett, 847 S.W.2d at 679. C. Application of Law to the Facts
Assuming, without deciding, Eisenmenger's issue was preserved for appellate review, we decide the issue against him. Eisenmenger's conviction for possession of heroin constituted a state jail felony under sections 481.115(a) and (b) of the health and safety code. As such, it was punishable under section 12.35(a) of the penal code. Pursuant to section 12.42(a)(2) of the penal code, Eisenmenger's prior felony convictions were used to enhance his punishment, elevating his state jail felony offense to a second degree felony. Eisenmenger's sentence of sixteen years and seven months' imprisonment with no fine is within the range of punishment for a second degree felony. Tex. Penal Code Ann. § 12.33 Eisenmenger concedes section 12.42 of the penal code is "silent regarding [the] imposition of a time limit on the use of prior convictions to enhance punishment," but argues that rule 609(b) is "instructive" and that "remote convictions are inadmissible [for purposes of enhancing punishment] because the law presumes that a person is capable of rehabilitation and that his character has reformed after a suitable period of law-abiding conduct." We disagree. Rule 609(b) is an evidentiary rule related to the impeachment of witnesses during trial, and convictions introduced at the punishment phase of the trial are not subject to the remoteness limitation of rule 609(b). See Tex. R. Evid. 609(b); see also Barnett, 847 S.W.2d at 679. III. CONCLUSION
The trial court did not err when it admitted evidence of Eisenmenger's prior felony convictions. The trial court's judgment is affirmed.