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holding that "if an out-of-state conviction may be used for enhancement in the foreign state, it may be used under section 12.42 for enhancement even though it would not be available for enhancement under Texas law" because a probated sentence does not constitute a final conviction until there is a revocation of probation
Summary of this case from Ex parte PueOpinion
No. 05-06-01706-CR
Opinion Filed March 18, 2008. DO NOT PUBLISH. Tex. R. App. P. 47
On Appeal from the 422nd Judicial District Court, Kaufman County, Texas, Trial Court Cause No. 23533-422.
Before Justices MORRIS, WRIGHT, and FRANCIS.
MEMORANDUM OPINION
Robbey Ralpheal Mitchell appeals his conviction for possession of more than 400 grams of cocaine with the intent to deliver. After the jury found appellant guilty, it assessed punishment, enhanced by two prior felonies, at 50 years' confinement. In three issues, appellant contends the trial court erred by admitting certain evidence and that the evidence is legally and factually insufficient to support one of the enhancement paragraphs. We overrule appellant's issues and affirm the trial court's judgment. In his first and second issues, appellant complains that State's Exhibits 17 and 18 were improperly admitted. In his two paragraph argument under issue one, appellant raises several objections to State's Exhibit 17, administrative records from the Kaufman County Jail, including "surprise, hearsay, not properly authenticated, the results of an illegal arrest, and under Texas Rule of Evidence 404(b) and Code of Criminal Procedure Article 37.07, United States Constitution in violation of appellant's rights of confrontation and cross examination" as well as "Texas Rules of Evidence 902(10) and 803(8)(b)" and the "affidavit was not on file 14 days prior to trial court (sic) and that under 803 the specific exclusion applies in criminal cases as to matters observed by police officers and other law enforcement personnel." Similarly, under his second issue, appellant lists a series of objections to State's Exhibit 18, a FBI document containing a "master fingerprint card" the FBI has on file for appellant with regard to prior felony convictions. Although appellant lists a string of objections and references certain rules of evidence under these issues, he does not cite any relevant legal authority. Nor has appellant provided any meaningful analysis or argument in support of his contention that the trial court improperly admitted the complained-of exhibits. It is appellant's responsibility to provide argument and applicable case law to assist this Court in evaluating his contentions. Because appellant's briefing under these issues is inadequate, he has presented nothing for our review. See Tex. R. App. P. 38.1(h); Tong v. State, 25 S.W.3d 707, 710 (Tex.Crim.App. 2000); Wyatt v. State, 23 S.W.3d 18, 23 n. 5 (Tex.Crim.App. 2000); Rocha v. State, 16 S.W.3d 1, 20 (Tex.Crim.App. 2000). We overrule appellant's first and second issues. In his third issue, appellant contends the evidence is insufficient to support one of the two enhancement paragraphs because he successfully completed probation for his Louisiana conviction for taking contraband into a penal facility and was granted a first-offender automatic pardon upon completion of his probation. We disagree. Section 12.42(d) generally provides for enhanced punishment of felonies when a defendant has been finally convicted of two previous felonies, and the second previous felony conviction is for an offense that occurred subsequent to the first previous conviction having become final. See Tex. Penal Code Ann. § 12.42(d) (Vernon Supp. 2007). Under Texas law, a probated sentence does not constitute a final conviction until there is a revocation of probation. Ex parte Langley, 833 S.W.2d 141, 143 (Tex.Crim.App. 1992); Ex parte Murchison, 560 S.W.2d 654, 656 (Tex.Crim.App. 1978). However, if an out-of-state conviction may be used for enhancement in the foreign state, it may be used under section 12.42 for enhancement even though it would not be available for enhancement under Texas law. See DiRemiggio v. State, 637 S.W.2d 926, 928 (Tex.Crim.App. 1982); Ex parte Blume, 618 S.W.2d 373, 376 (Tex.Crim.App. 1981); Dominque v. State, 787 S.W.2d 107, 108 (Tex.App.-Houston [14th Dist.] 1990, pet. ref'd). Article 893 of the Louisiana Code of Criminal Procedure provides that a felony probated case which resulted in satisfactory completion and dismissal of prosecution is available for use in subsequent multiple-offender prosecutions. La. Code Crim. Proc. Ann. art. 893(E)(2) (West Supp. 2007). Further, the automatic pardon provision for first offenders under the Louisiana Revised Statutes does not preclude consideration of a first-felony conviction to enhance punishment as a habitual offender because the first-offender pardon is not equivalent to a full executive pardon. See La. Rev. Stat. Ann. § 15:572 (West Supp. 2007); State v. Adams, 355 So.2d 917, 922 (La. 1978); State v. Lemoine, 919 So.2d 727, 729-30 (La.App. 5 Cir. 2005, writ denied). Thus, appellant's argument that his Louisiana conviction for taking contraband into a penal facility cannot be used for enhancement under section 12.42 lacks merit. See DiRemiggio, 637 S.W.2d at 928; Dominque, 787 S.W.2d at 108. We overrule appellant's third issue. Accordingly, we affirm the trial court's judgment.