                                 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        repealed subsection (e) and eliminated the ten-year requirement, effective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]




Calhoun v. State                                                                  Page 4
