




Opinion filed June 25, 2009











 








 




Opinion filed June 25,
2009
 
 
 
 
 
 
                                                                        In The
                                                                              
    Eleventh
Court of Appeals
                                                                   __________
 
                                                          No. 11-07-00327-CR
                                                      _________
 
                                ANGEL
SANCHEZ MURO, Appellant
 
                                                             V.
 
                                        STATE
OF TEXAS, Appellee
 

 
                                         On
Appeal from the 358th District Court
 
                                                           Ector
County, Texas
 
                                                 Trial
Court Cause No. D-33,597
 

                                                                              
                                             M
E M O R A N D U M   O P I N I O N
Angel
Sanchez Muro appeals his conviction by a jury for the offense of possession of
less than one gram of cocaine .  The jury, having received evidence of two
prior felony convictions for driving while intoxicated, assessed Muro=s punishment at eighteen
years in the Texas Department of Criminal Justice, Institutional Division. 
Muro contends on appeal that prior felony convictions for felony driving while
intoxicated are not available to enhance state jail felonies and that the trial
court erred in denying his motion to set aside the sentence as being excessive
in violation of the excessive fines and penalties clause of the Texas and
United States Constitutions.  We affirm.




In
support of these two contentions, Muro argues that the use of the two prior
felony convictions for enhancement is not authorized by Tex. Penal Code Ann. '
12.42 (Vernon Supp. 2008).  Section 12.42(a)(2) authorizes the enhancement of a
state jail felony by two prior felony convictions.  Muro supports his argument
that the two prior felony convictions for driving while intoxicated could not
be used for enhancement by relying on the case of State v. Mancuso, 919
S.W.2d 86 (Tex. Crim. App. 1996).  In that case, involving a state jail felony
enhanced by two prior felony convictions, the court held that the trial court
did not err by sentencing the defendant in a way inconsistent with enhancement
by two prior felony convictions because Tex.
Code Crim. Proc. Ann. art. 42.12, '15(d)
(Vernon Supp. 2008) authorized the sentence that the trial court assessed.  919
S.W.2d at 89.  In the case at bar, we uphold the sentence assessed by the jury
because it is authorized by Section 12.42(a)(2).  Since Mancuso, the
legislature has revised Section 12.42(a)(2) so as to make clear that it does
apply to the enhancement of state jail felonies.  Muro presents no authority
indicating that his sentence is not authorized by Section 12.42(a)(2) as it
exists today, nor are we aware of any.
It
appears that Muro=s
contention that the trial court erred in denying his motion to set aside the
sentence as being excessive, in violation of the excessive fines and penalties
clause of the Texas and United States Constitutions, is solely based upon his
contention that his punishment did not fall within the range authorized by
statute.  This argument must fail, in view of our conclusion that his
punishment was properly enhanced by the two prior felony convictions for
driving while intoxicated.  We also note that the clerk=s record does not contain Muro=s motion.  We overrule Muro=s issues on appeal.  
The
judgment is affirmed.
 
PER CURIAM
 
June 25, 2009  
Do not publish. 
See Tex. R. App. P. 47.2(b).
Panel consists of:  Wright, C.J.,
McCall, J., and Hill, J.[1]




[1]John G. Hill, Former Justice, Court of Appeals, 2nd
District of Texas at Fort Worth, sitting by assignment.


