Rankin Calhoun v. State ( 2011 )

IN THE
TENTH COURT OF APPEALS
No. 10-09-00064-CR
RANKIN CALHOUN,
Appellant
v.
THE STATE OF TEXAS,
Appellee
From the 361st District Court
Brazos County, Texas
Trial Court No. 07-05465-CRF-361
MEMORANDUM OPINION
Rankin Calhoun was charged by indictment with driving while intoxicated,
enhanced to a felony by 2002 and 2006 convictions for operating a motor vehicle while
intoxicated. See TEX. PENAL CODE ANN. §§ 49.01(2), 49.04(a) (Vernon 2003), § 49.09(b)(2)
(Vernon Supp. 2010). In a plea bargain, Calhoun pleaded guilty to the charged offense,
and the trial court assessed his punishment at ten years’ imprisonment and a $1,000
fine, but suspended the prison sentence and placed him on community supervision for
five years. In two issues, Calhoun contends that (1) the evidence is legally insufficient
to support his conviction, and (2) the trial court erred in denying his motion to quash
the indictment. We will affirm.
In his first issue, Calhoun contends that the evidence is legally insufficient to
support his conviction “because the two prior DWI convictions used to enhance the
offense to a felony were an element of the offense and occurred prior to the enactment
of the statute”; thus, they could not be used for enhancement and his sentence is illegal
because, without the enhancements, the offense was a misdemeanor and the district
court lacked jurisdiction.1
We recently examined a nearly identical issue in Cohen v. State, No. 10-08-00385-
CR, 2010 WL 199887 (Tex. App.—Waco 2010, no pet.) (mem. op., not designated for
publication). In Cohen, we stated:
Section 49.09(e) of the Penal Code previously provided that a prior
conviction could not be used for enhancement if the conviction was more
than ten years old. See Act of May 29, 1993, 73rd Leg., R.S., ch. 900, § 1.01,
1993 Tex. Gen. Laws 3586, 3698; see also Act of May 29, 1995, 74th Leg.,
R.S., ch. 318, § 21, 1995 Tex. Gen. Laws 2734, 2743. In 2005, the Legislature
repealed subsection (e) and eliminated the ten-year requirement, effective
September 1, 2005. See Act of May 27, 2005, 79th Leg., R.S., ch. 996, § 3,
2005 Tex. Gen. Laws 3363, 3364; see also TEX. PEN. CODE ANN. § 49.09(b)(2)
(Vernon Supp. 2009).
The Court of Criminal Appeals has held that section 49.09(e) does
not establish an element of felony driving while intoxicated because it
“does not describe the forbidden conduct, the required culpability, any
required result, nor does it create an exception to the offense.” Weaver v.
State, 87 S.W.3d 557, 561 (Tex. Crim. App. 2002). It merely “bars the State,
in certain circumstances, from proving all of the elements of the offense”
and is, therefore, “more akin to a rule of admissibility.” Id.
1 We assume without deciding that Calhoun’s legal-sufficiency complaint (which is more in the
nature of a legal challenge to felony jurisdiction in this case) falls within his motion to quash, the denial of
which the trial court allowed Calhoun to appeal.
Calhoun v. State Page 2
In Saucedo v. State, No. 03-06-00305-CR, 2007 [WL 1573948] (Tex.
App.—Austin May 30, 2007, no pet.) (not designated for publication),
Saucedo argued that the “current version of section 49.09 does not apply
to his case because the prior convictions are elements of the current
offense and, therefore, some of the elements occurred before the effective
date of the new law.” [Id. at *4]. The Austin Court held that, because
section 49.09(e) does not establish an element of the offense, “[a]ll of the
elements of the offense were committed after September 1, 2005, and the
new version of the statute applies.” Id.[]
We too hold that former subsection 49.09(e) does not establish an
element of the offense of felony driving while intoxicated. See Weaver, 87
S.W.3d at 561; see also Saucedo, 2007 [WL 1573948, at *4].
Id. at *1.
The evidence is thus legally sufficient to support Calhoun’s conviction, and his
sentence is not illegal. See Curry v. State, 30 S.W.3d 394, 406 (Tex. Crim. App. 2000); see
also Jackson v. Virginia, 443 U.S. 307, 318-19, 99 S. Ct. 2781, 2789, 61 L. Ed. 2d 560 (1979).
We overrule Calhoun’s first issue.
In his second issue, Calhoun contends that the trial court abused its discretion by
denying his motion to quash the indictment because the 2005 amendment to section
49.09 constitutes an impermissible ex post facto law.
An ex post facto law: (1) punishes as a crime an act previously committed which
was innocent when done; (2) changes the punishment and inflicts a greater punishment
than the law attached to a criminal offense when committed; or (3) deprives a person
charged with a crime of any defense available at the time the act was committed.
Rodriguez v. State, 93 S.W.3d 60, 66 (Tex. Crim. App. 2002). Calhoun argues that the
2005 amendment to section 49.09(e) constitutes an ex post facto law because it eliminated
the ten-year requirement for enhancements. However, courts have consistently held
Calhoun v. State Page 3
that for purposes of enhancement, the use of prior convictions that could not have been
used at the time they were originally committed is not a violation of the prohibition
against ex post facto laws. See Engelbrecht v. State, 294 S.W.3d 864, 868 (Tex. App.—
Beaumont 2009, no pet.); see also Cohen, 2010 WL 199887, at *2 n.2; Sepeda v. State, 280
S.W.3d 398, 402 (Tex. App.—Amarillo 2008, pet. ref’d); Crocker v. State, 260 S.W.3d
589, 592 (Tex. App.—Tyler 2008, no pet.); State v. Pieper, 231 S.W.3d 9, 14 (Tex. App.—
Houston [14th Dist.] 2007, no pet.); Saucedo, 2007 WL 1573948, at *4; Romo v. State, No.
04-05-00602-CR, 2006 WL 3496933, at *1-2 (Tex. App.—San Antonio Dec. 6, 2006, no
pet.) (mem. op., not designated for publication). We thus overrule Calhoun’s second
issue and affirm the trial court’s judgment.
REX D. DAVIS
Justice
Before Chief Justice Gray,
Justice Davis, and
Justice Scoggins
Affirmed
Opinion delivered and filed May 11, 2011
Do not publish
[CR25]
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