Opinion
No. 05-07-00455-CR
Opinion issued April 15, 2008. DO NOT PUBLISH. Tex. R. App. P. 47
On Appeal from the 292nd Judicial District Court, Dallas County, Texas, Trial Court Cause No. F07-00273-V.
Before Justices MORRIS, WRIGHT, and MOSELEY.
MEMORANDUM OPINION
At trial, Fernando Tovar was convicted by a jury of possession of a firearm by a felon. During the punishment phase of trial, appellant complained to the trial court that one of the enhancement offenses in his case was improper because it was the "same" offense as that used to show his felon status for the charged offense. He makes the same argument on appeal. We affirm the trial court's judgment. The background of the case and the evidence adduced at trial are well known to the parties, and therefore we limit recitation of the facts. We issue this memorandum opinion pursuant to Texas Rule of Appellate Procedure 47.1 because the law to be applied in the case is well settled. In his sole issue on appeal, appellant complains about one of the enhancement offenses used in his case. The indictment in the case alleged that he had possessed a firearm and had been previously convicted in cause number F9048528 on August 7, 1990 of the felony offense of possession with intent to deliver. The indictment further alleged that he had previously been convicted of delivery of a controlled substance in cause number F9003082 on August 7, 1990 and of burglary of a habitation in cause number F8880683 on August 10, 1989. Appellant was convicted of both drug offenses on the same date and served concurrent sentences for the convictions. Appellant argues that because, in effect, he was serving "one sentence" for the drug offenses, the State could not use one of the drug convictions as an element of his firearm offense and use the other as an enhancement offense. He contends that by doing so the State violated existing law precluding the use of a previous conviction to enhance the punishment for an offense when that same conviction has been used to create the charged offense. See Hernandez v. State, 929 S.W.2d 11, 13 (Tex.Crim.App. 1996). Appellant is incorrect. In this case, the State used two separate convictions with two separate offense dates and two separate cause numbers to create the charged offense and enhance it. The fact that he received concurrent sentencing for the offenses does not transmute them into a single offense, nor does it change the fact that appellant committed the two separate offenses. See Ex parte Evans, 964 S.W.2d 643, 647 (Tex.Crim.App. 1998). The trial court did not err in permitting the State to enhance appellant's sentence with the delivery of a controlled substance offense. We resolve appellant's sole issue against him. We affirm the trial court's judgment.