Opinion
No. 05-04-00370-CR
Opinion issued July 11, 2005. DO NOT PUBLISH. Tex.R.App.P.47.
On Appeal from the 416th Judicial District Court Collin County, Texas, Trial Court Cause No. 219-80968-03. Affirmed as modified.
Before Justices MORRIS, LANG, and MAZZANT.
OPINION
Glenell Gray appeals his sentence imposed for his conviction for theft from a person. A jury found appellant guilty, and after finding the enhancements true, the trial court imposed punishment at six years' confinement. In one issue, appellant argues the trial court's application of sections 12.41 and 12.42 of the penal code to his out-of-state felony convictions violated the Fourteenth Amendment. We affirm the trial court's judgment. Included in appellant's indictment was Count A: two paragraphs alleging appellant's prior convictions in Arapahoe County, Colorado. During the punishment hearing before the trial court, the State offered a penitentiary packet containing appellant's history of convictions in Colorado. The September 16, 1992 conviction was for criminal attempt to commit first degree criminal trespass. The date of the offense was July 22, 1992, and appellant was sentenced to two years' confinement. Subsequently, appellant was convicted for a November 14, 1994 offense-menacing. He was sentenced to three years' confinement for the second conviction. The record shows that appellant was sentenced to the department of corrections, not to jail, and appellant admitted he went to prison for the convictions. The trial court found Count A of the enhancements to be true. In his sole issue, appellant complains that the trial court erred by punishing him under the range applicable for a second-degree felony. He was convicted of theft from a person-a state jail felony. See Tex. Pen. Code Ann. § 31.03(e)(4)(B) (Vernon Supp. 2004-05). Under the penal code, if it is shown appellant had been previously convicted of two felonies, with the second offense occurring after the previous conviction became final, appellant's state jail felony is punished as a second-degree felony. See id. § 12.42(a)(2). When a prior conviction was not obtained from a prosecution under the Texas Penal Code, the code classifies such conviction as a "felony of the third degree" if imprisonment in a penitentiary is affixed to the offense as a possible punishment. Tex. Pen. Code Ann. § 12.41 (Vernon 2003). After the legislature enacted section 12.41, the court of criminal appeals held that a conviction for a federal offense that does not constitute a felony under the Texas Penal Code can be used to enhance punishment under section 12.42. Ex parte Blume, 618 S.W.2d 373, 374, 376 (Tex.Crim.App. 1981). Courts of appeals have likewise applied section 12.41 to out-of-state convictions used for enhancements. See, e.g., Tucker v. State, 136 S.W.3d 699, 701 (Tex.App.-Texarkana 2004, no pet.); Golden v. State, 874 S.W.2d 366, 368 (Tex.App.-Beaumont 1994, pet. ref'd); Trotti v. State, 698 S.W.2d 245, 246 (Tex.App.-Austin 1985, pet. ref'd). And when it is clear on the face of the out-of-state document that an appellant was incarcerated in a penitentiary for a conviction in that state, the evidence of those convictions is sufficient for enhancement purposes. Golden, 874 S.W.2d at 368; see Davis v. State, 645 S.W.2d 288, 292 (Tex.Crim.App. 1983); Blume, 618 S.W.2d at 376. The Colorado documents show appellant was sentenced to confinement with the department of corrections and not to jail time. Further, his second Colorado offense occurred after the first Colorado conviction became final. Accordingly, the Colorado convictions were sufficient for purposes of enhancement for his current state jail felony conviction under penal code section 12.42. Appellant argues that using his out-of-state felony convictions for enhancement purposes violated his right to equal protection and due process. He argues his right to equal protection was violated because the application of section 12.42 to appellant "causes similarly situated offenses to be subjected to different and disparate punishment." Appellant asserts that a Texas offender convicted of the same offenses would not be subjected to the felony enhancement under section 12.42. However, the court of criminal appeals (as well as Texas intermediate appellate courts) applied the language of sections 12.41 and 12.42 according to the sentence imposed in the prior conviction from outside of the state, not based on the crime committed. See Blume, 618 S.W.2d at 376. Appellant has provided no authority for why this Court should go against that precedent, and he has provided no argument asserting he is in a class treated differently than Texas residents twice convicted of offenses for which a sentence in the penitentiary was imposed. In his due process claim, appellant also argues his right to travel under the Fourteenth Amendment has been violated. See U.S. Const. amend. XIV, § 1. Although his argument is unclear, appellant appears to assert he was restricted from traveling to Texas because his felony convictions from Colorado could be used in Texas for enhancement purposes in a manner differently than if someone in Texas had committed the same offense. Again, precedent shows the controlling issue is the sentence imposed-not the crime committed. See Blume, 618 S.W.2d at 376. Appellant thus is in the same position as any other person who has twice been sentence to confinement in the penitentiary in Texas. Further, appellant remained free to travel to Texas; he simply would be subject to Texas's penal code for committing a crime in this state-just as a Texas resident is. Following established precedent and being unpersuaded by appellant's arguments, we resolve appellant's sole issue against him. In his argument, appellant contends his punishment was enhanced under section 12.42 of the penal code-allowing punishment for a second-degree felony for his state jail felony conviction. As discussed above, the requirements for enhancing appellant's punishment to a second-degree felony were met. And his six-year sentence is within the range for a second-degree felony. However, the judgment states appellant's applicable punishment range was that of a third-degree felony. We modify the judgment to reflect the correct applicable punishment range as that of a second-degree felony, 2-20 years in prison with a maximum fine of $10,000. See Asberry v. State, 813 S.W.2d 526, 529 (Tex.App.-Dallas 1991, pet. ref'd) ("This court has the power to correct and reform the judgment of the court below to make the record speak the truth when it has the necessary data and information to do so. . . ."); see also Tex.R.App.P. 43.2(b). We affirm the trial court's judgment as modified.
The State argues appellant waived any alleged error for failing to timely object. When the State offered the penitentiary packets, appellant stated he had no objection. During closing, however, appellant complained the use of the Colorado convictions for enhancement violated appellant's right to equal protection and due process. Regardless, sentences not authorized by law are void. Wilson v. State, 677 S.W.2d 518, 524 (Tex.Crim.App. 1984). And an attack on a ground that a sentence is void may be raised at any time. See Levy v. State, 818 S.W.2d 801, 802 (Tex.Crim.App. 1991).
Although appellant contends there was no evidence regarding the nature of his conviction for menacing, appellant testified that he pointed a gun during the commission of the offense. He contested at whom he pointed the gun-neighbors versus a dog-but he admitted he pointed a gun.