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


                              MEMORANDUM OPINION
       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.

                                                                2
