Opinion
No. 05-03-01695-CR
Opinion issued November 16, 2004. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the 382nd Judicial District Court, Rockwall County, Texas, Trial Court Cause No. 2-01-315. Affirmed.
Before Justices WHITTINGTON, BRIDGES, and FRANCIS.
MEMORANDUM OPINION
Andie M. Higgins appeals his conviction for aggravated sexual assault of a person sixty-five years or older. See Tex. Pen. Code Ann. § 22.021(a)(1)(A)(i) (2)(C); 22.04(c) (Vernon 2003 Supp. 2004-05). After finding appellant guilty, the trial judge assessed punishment, enhanced by one prior conviction, at life confinement. In a single issue, appellant claims the trial judge erred in admitting a void conviction during punishment. We disagree and affirm the trial court's judgment. In his sole issue, appellant claims the trial judge erred in admitting and considering evidence of a prior conviction during punishment because the California conviction is void. Appellant contends the conviction is void because it does not state a term of confinement and, therefore, lacks a sentence. Appellant argues that "[w]ithout a sentence[,] the State has failed to present sufficient evidence of a final conviction." Article 42.02 of the code of criminal procedure provides, "The sentence is that part of the judgment, or order revoking a suspension of the imposition of a sentence, that orders that the punishment be carried into execution in the manner prescribed by law." Tex. Code Crim. Proc. Ann. art. 42.02 (Vernon Supp. 2004-05) (emphasis added). At the time appellant was convicted of lewd and lascivious acts, California law "divested the trial judge of power to fix the term of imprisonment for offenses punishable by imprisonment in a state prison, and gave this power to the Adult Authority." People v. West, 82 Cal. Rptr. 2d 549, 554 (Cal.Ct.App. 1999). The California legislature prescribed both a minimum and maximum term for each offense punishable by imprisonment in the state prison. The trial judge did not specify the length of imprisonment, "but simply sentenced the defendant for the term prescribed by law." West, 82 Cal.Rptr. at 554; see People v. Superior Court (Gonzales), 78 Cal.App.3d 134, 140 (Cal.Ct.App. 1978) (legislature did intend for term of imprisonment to be set by Community Release Board, not trial judge, in cases in which defendant committed offense before July 1, 1977); People v. Alcala, 141 Cal.Rptr. 442, 427 (Cal.Ct.App. 1977) (law precludes determinate sentencing by court in cases in which crime was committed prior to July 1, 1977). During punishment, the State offered exhibit 12 as evidence of appellant's prior conviction. Exhibit 12 consists of copies of a complaint, abstract of judgment, judgment, and "Order Holding to Answer and Commitment." These documents show appellant was convicted on January 24, 1973 on two counts of lewd and lascivious acts in California and sentenced to "imprisonment in the State Prison of the State of California for the term prescribed by law." Under California law, the judge sentencing appellant in January 1973 was prohibited from assessing punishment at a set term of confinement; rather, the judge could only sentence appellant to an indeterminate sentence, i.e. "the term prescribed by law." See In re Gonzales, 78 Cal. App. 3d at 143. Thus, appellant's California conviction is not void for failing to state a determinate term of confinement, and the trial judge did not err in admitting or considering it during punishment. We overrule appellant's sole issue. We affirm the trial court's judgment.