                        COURT OF APPEALS
                         SECOND DISTRICT OF TEXAS
                              FORT WORTH


                              NO. 2-08-275-CR


RAY ACUNA                                                      APPELLANT

                                       V.

THE STATE OF TEXAS                                                    STATE

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           FROM THE 90TH DISTRICT COURT OF YOUNG COUNTY

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                        MEMORANDUM OPINION 1

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                                I. Introduction

     In one issue, Appellant Ray Acuna argues that the trial court erred by

admitting, for enhancement purposes, evidence of a prior conviction because

the judgment on the prior conviction had been dismissed. We affirm.




     1
         … See Tex. R. App. P. 47.4.
                   II. Factual and Procedural Background

      In March 2007, the State indicted Acuna for aggravated sexual assault

of a child younger than fourteen years of age. The indictment included an

enhancement paragraph that referenced a prior conviction of Acuna’s for sexual

assault. In July 2008, a jury found Acuna guilty of the offense of aggravated

sexual assault as charged in the indictment.2

      During the punishment phase, the trial court conducted a hearing outside

the presence of the jury to determine whether Acuna’s prior conviction

triggered the automatic life enhancement provision.3 During the hearing, Acuna

introduced into evidence the trial court’s file from the prior conviction that

included a “Motion to Dismiss” that had been granted by the trial court. Acuna

argued that, because the probated sentence had been dismissed, the sentence

was not a “conviction” as required by the penal code. At the conclusion of the


      2
       … At trial, the thirteen-year-old complainant testified that she went to
Acuna’s residence to visit with his daughter. While Acuna’s daughter was
taking a shower, Acuna had sexual intercourse with the complainant. As a
result of the sexual assault, the complainant became pregnant and gave birth
to a child. The DNA evidence established that the probability of Acuna’s
paternity was 99.99%.
      3
       … Section 12.42 of the penal code provides, in part, that a defendant
shall be punished by imprisonment for life if the defendant is convicted of an
offense under section 22.021 (aggravated sexual assault) and the defendant
has been previously convicted of an offense under section 22.011 (sexual
assault). Tex. Penal Code Ann. § 12.42(c)(2)(A)(i), (c)(2)(B)(ii) (Vernon Supp.
2008).

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hearing, the trial court overruled Acuna’s objections to the admissibility of the

prior conviction and included the automatic life enhancement provision in the

charge on punishment.

         During the punishment hearing, Acuna pleaded “not true” to the

enhancement allegation. The jury, however, found the allegation to be “true”

and assessed punishment at life in prison. The trial court sentenced Acuna

accordingly. This appeal followed.

                                   III. Discussion

         In his sole issue, Acuna asserts that the trial court erred by allowing the

jury to consider evidence of his prior conviction for sexual assault when the

judgment in that prior case had been dismissed. The State, however, argues

that the trial court did not err by allowing the jury to consider Acuna’s prior

conviction for enhancement purposes because the trial court in the prior case

lacked the authority to dismiss the judgment in its entirety. We agree with the

State.

         In November 1985, Acuna pleaded guilty to the offense of sexual assault,

and the trial court sentenced him to five years’ community supervision. In July

1986, the State filed a motion to revoke Acuna’s community supervision. In

May 1987, instead of filing a motion to dismiss the motion to revoke, the State

filed, and the trial court granted, a motion to dismiss. In a motion to clarify and

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for order nunc pro tunc, the State requested that the trial court clarify that the

1987 motion to dismiss referred to the motion to revoke filed in July 1986 and

not to the judgment in its entirety. The trial court, however, did not rule on this

matter.

      Acuna concedes that this is not a case of a conviction being set aside

pursuant to Texas Code of Criminal Procedure article 42.12, section 20, in

which a final judgment of conviction may be set aside upon satisfactory

completion of community supervision. Tex. Code Crim. Proc. Ann. art. 42.12,

§ 20(a) (Vernon Supp. 2008). Rather, his sole argument rests on his assertion

that there is “no provision in Texas law for what was done by the [trial] court”

but that “it was done” and therefore Acuna’s prior conviction should not have

been considered by the jury.     The State, however, directs our attention to

Satterwhite v. State, in which our sister court in Houston rejected an argument

similar to Acuna’s. 36 S.W.3d 145 (Tex. App.—Houston [1st Dist.] 2000, pet.

ref’d).

      In Satterwhite, the appellant pleaded guilty in 1995 to falsely holding

himself out as a lawyer, and the trial court sentenced him to ten years’

community supervision. Id. at 147. In 1996, the State filed its first motion to

revoke community supervision. Id. While the appellant was in jail, the trial

court signed an “Agreed Setting,” which ordered that the hearing be reset and

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that the motion to revoke be dismissed if the appellant served sixty days jail

therapy. Id. On the date of the hearing, instead of filing a motion to dismiss

the motion to revoke, the State filed a pre-printed motion to dismiss with a

handwritten notation that the appellant had served sixty days jail therapy. Id.

The trial court signed the form order, which “ORDERED, ADJUDGED, and

DECREED th[e] . . . cause be . . . dismissed.” Id. Subsequently, the State filed

a second motion to revoke. Id. The trial court granted the State’s motion and

sentenced appellant to ten years’ confinement. Id.

      On appeal, the appellant in Satterwhite cited to article 32.02 of the code

of criminal procedure and argued that the trial court can dismiss a criminal

action upon the State’s motion “at any time” and, therefore, that the dismissal

order vacated the judgment which resulted in the trial court’s lack of authority

to consider the State’s second motion to revoke. Id. at 147–48; see Tex. Code

Crim. Proc. Ann. art. 32.02 (Vernon 2006) (declaring that “the State may, by

permission of the court, dismiss a criminal action at any time upon filing a

written statement . . . setting out his reasons for such dismissal . . . .”).

      The Satterwhite court, however, held that article 32.02 does not

authorize a trial court, upon a State attorney’s motion, to dismiss a case already

reduced to final judgment. 36 S.W.3d at 148. It reasoned that the context in

which article 32.02 appears in the code of criminal procedure demonstrates

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that it is a mode for dismissing pending criminal actions, not cases reduced to

final judgments. Id. Further, the Satterwhite court analyzed the consequences

of allowing trial courts to dismiss judgments after they became final and

concluded that by doing so it would expand trial courts’ plenary power and

would give judges and prosecutors the power of commutation, which is vested

exclusively in the executive branch. Id. (citing Tex. Const. art. IV § 11).

      We agree with the State that the Satterwhite court’s legal analysis and

conclusions apply to this appeal. Furthermore, this is not a case in which the

trial court had plenary jurisdiction at the time it granted the State’s motion to

dismiss—that is, Acuna’s prior conviction occurred in November 1985; the time

for filing a motion for new trial had long since expired by the time the State

filed its motion to dismiss in May 1987. See Tex. R. App. P. 21.4, 22.3; State

v. Aguilera, 165 S.W.3d 695, 697–98 (Tex. Crim. App. 2005).

      Therefore, because the trial court in Acuna’s prior case lacked the

authority to dismiss the case in its entirety, the dismissal order is void, and the

trial court in the present case did not err by admitting into evidence Acuna’s




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prior conviction for enhancement purposes.4 Accordingly, we overrule Acuna’s

sole issue.

                                IV. Conclusion

      Having overruled Acuna’s sole issue, we affirm the trial court’s judgment.




                                     PER CURIAM

PANEL: MCCOY, GARDNER, and WALKER, JJ.

DO NOT PUBLISH
Tex. R. App. P. 47.2(b)

DELIVERED: August 13, 2009




      4
        … Furthermore, even if we were to assume the trial court erred by
admitting Acuna’s prior conviction into evidence, considering the punishment
ultimately assessed (life sentence) in light of the full range of punishment that
could have been assessed on the aggravated sexual assault conviction alone
(five to ninety-nine years or life), we cannot say that the admission of the prior
conviction for sexual assault affected Acuna’s substantial rights. See Tex.
Penal Code Ann. § 22.021 (Vernon Supp. 2008) (stating that aggravated
sexual assault is a first degree felony offense); see also § 12.32(a) (Vernon
2003) (providing range of confinement for first degree felony is life or any term
of not more than ninety-nine years or less than five years). Accordingly, any
error in the admission of Acuna’s prior conviction would have been harmless.

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