                                   NO. 07-06-0216-CR

                             IN THE COURT OF APPEALS

                      FOR THE SEVENTH DISTRICT OF TEXAS

                                      AT AMARILLO

                                        PANEL C

                                 NOVEMBER 7, 2006
                          ______________________________

                                THE STATE OF TEXAS,

                                                               Appellant

                                             v.

                                   USTACIO CELAYA,

                                                      Appellee
                        _________________________________

          FROM THE 222ND DISTRICT COURT OF DEAF SMITH COUNTY;

                NO. CR-2005I-145; HON. ROLAND SAUL, PRESIDING
                       _______________________________

                                     Opinion
                         _______________________________

Before QUINN, C.J., and HANCOCK and PIRTLE, JJ.

       The State of Texas appeals from an order granting the motion of Ustacio Celaya

to quash the indictment issued against him. Through the motion, Celaya asserted that the

indictment was defective because one of the prior convictions used to enhance the

underlying charge of driving while intoxicated to the level of a felony was too remote. The

trial court agreed. The State now argues that the decision of the trial court was incorrect.
Neither conviction was too remote according to the provisions of § 49.09(e) of the Texas

Penal Code, it posits.1 We overrule the issue and affirm the trial court’s order.

        The State indicted Celaya for driving while intoxicated on or about July 30, 2005.

Included in the indictment were two enhancement paragraphs. They were to be used to

make the offense a felony. See TEX . PEN . CODE ANN . §49.09(b)(2) (Vernon Supp. 2006)

(stating that an offense of driving while intoxicated is a felony of the third degree if it is

shown that the person has previously been convicted two times of any other offense

relating to the operation of a motor vehicle while intoxicated). The first paragraph averred

that Celaya had been convicted of driving while intoxicated on April 20, 1989. The second

mentioned a like conviction on April 29, 1982.

        Per §49.09(e) of the Penal Code, a conviction may not be used for enhancement

purposes if:

        (1) the conviction was a final conviction . . .

        (2) the offense for which the person is being tried was committed more than
        10 years after the latest of:

                 (A) the date on which the judgment was entered for the
                 previous conviction;

                 (B) the date on which the person was discharged from any
                 period of community supervision on which the person was
                 placed for the previous conviction;

                 (C) the date on which the person successfully completed any
                 period of parole on which the person was released after


        1
          Section 49.09(e) of the Penal Code was repealed effective September 1, 2005. Act of May 25, 2005,
  th
79 Leg. R.S., ch. 996, §3, 1993 T EX . G EN . L AW S 3364. How ever, it is applicable here given that the offense
for which Celaya is b eing pros ecu ted purpo rtedly oc curred b efore Septe m ber 1 , 2005. See id. §4 (providing
that the cha nge doe s no t apply to offen ses occ urring befo re the effective date of the act).

                                                        2
              serving a portion of the term to which the person was
              sentenced for the previous conviction; or

              (D) the date on which the person completed serving any
              sentence for which the person was confined or imprisoned for
              the previous conviction; and

       (3) the person has not been convicted of an offense. . . related to operating
       a motor vehicle while intoxicated within 10 years of the latest date under
       Subdivision (2).

TEX . PEN . CODE ANN . §49.09(e) (Vernon 2003). All three conditions must be met for the

conviction to be available for enhancement, according to the Court of Criminal Appeals.

Getts v. State, 155 S.W.3d 153, 156 (Tex. Crim. App. 2005). That same court also took

care to note that the phrase “a conviction may not be used for purposes of enhancement

under this section . . .” refers “to one conviction, not two.” Id. at 155-56 (emphasis added).

Thus, the statue “applies to prior convictions individually, not collectively.” Id. In other

words, each conviction to be used for purposes of enhancement must be tested against

the three conditions.

       Counsel for Celaya represented to the trial court that the 1989 conviction resulted

in a probated sentence. Furthermore, Celaya was discharged from probation on July 10,

1992, according to counsel.        The prosecutor did not dispute or object to these

representations. See Peterson v. State, 961 S.W.2d 308, 311 (Tex. App.–Houston [1st

Dist.] 1997, pet. ref’d) (stating that non-evidence introduced and considered by a court

without objection is considered evidence); Jones v. State, 795 S.W.2d 32, 34 (Tex.

App.–Houston [1st Dist.] 1990, no pet.) (stating the same). Given this information, we

conclude that the 1989 conviction falls within the scope of §49.09(e) and cannot be used



                                              3
for the enhancements purposes involved at bar. This is so because it 1) was final, 2) the

current offense for which Celaya is being prosecuted purportedly occurred more than ten

years after his discharge from probation for the 1989 conviction,2 and 3) Celaya had not

been convicted for driving while intoxicated within ten years of July 20, 1992 (i.e. his 1982

conviction for same having occurred several months outside the ten-year window).

        In holding as we do, we reject the State’s contention that to the extent the 1982

conviction may be available for enhancement purposes, then the 1989 conviction

automatically becomes available since it arose within ten years of 1982. As stated in

Getts, each conviction the State intends to use must be separately tested against the

conditions of §49.09(e). Getts v. State, 155 S.W.3d at 155-56. So, both the 1982 and

1989 convictions at bar must undergo separate testing against the conditions of §49.09(e).

And, that the unpublished decision in State v. Henderson, No. 05-03-01832-CR, 2005 Tex.

App. LEXIS 1467 (Tex. App.–Dallas, February 24, 2005, pet. denied) may suggest

otherwise is of no moment. There, the court suggested that the two prior convictions could

be used simply if the dates of conviction were within ten years of each other. Yet, that

holding ran afoul of §49.09(e)(3).

        Section 49.09(e)(3) provided for the comparison of two matters. One was the

conviction sought to be used for enhancement purposes. The other was any other

conviction of appellant for driving while intoxicated. And, while the applicable date (i.e. the


        2
         Section 49.09(e)(2) requires that the “latest” of the dates contem plated by subsections (A), (B), (C),
and (D) be used to assess whether the conviction is too re m ote. T EX . P EN . C ODE A N N . §49.09(e)(2) (Vernon
2003). Since appellant received probation or com m unity supervision, served no pa role, and served no
sentence in prison, subsections (C) and (D) do not apply. Nor does the date described in subsection (A) ap ply
since Celaya’s date of discharge from probation (i.e. July 1992) is later than his date of conviction (April 1989).

                                                        4
date to be utilized in the comparison) for the latter was the date of conviction, such is not

true for the former. Rather, the statute specified that date to be the “latest date under

Subdivision (2).” TEX . PEN . CODE ANN . §49.09(e)(3) (Vernon 2003). And, we are bound

by this quoted passage from the statute. Morever, this particular passage was not taken

into account by the Henderson court in arriving at its decision.3 Consequently, we do not

find the opinion controlling.

         So too do we reject the State’s alternative argument that if a conviction precedes

that which the State purports to use, then what date is the “latest” (for purposes of

§49.09(e)(3)) is determined by calculating in the inverse. We are obligated to afford words

appearing in a statute their plain meaning.                      Getts v. State, 155 S.W.3d at 155.

Furthermore, the plain meaning of the word “latest” connotes something “happening just

previous to the present time [especially] as the most recent of a succession.” MERRIAM -

W EBSTER COLLEGIATE DICTIONARY 702 (11th ed. 2003). In other words, “latest” means the

most recent or near to the present time. So, by using that particular word in §49.09(e)(3),

the legislature required us to calculate not retroactively but prospectively so as to

determine the date most near the present.

         In sum, because the date (July 20, 1992) on which Celaya was discharged from

probation as a result of his 1989 conviction was not within ten years of his April 29, 1982

conviction, the 1989 conviction could not be used for enhancement purposes. Thus, the


         3
          The chart appearing in the appen dix of Ge tts may also be read as incorporating this omission. For
instance, it alludes to the “prior convictions [being] within 10 years of one ano ther.” Ge tts v. State, 155 S.W .3d
153, 167 (Tex. Crim. App. 2005). Some m ay read that passage as saying the pertinent dates to com pare are
the dates of conviction as opposed to the date of conviction and the discharge date. Such a reading, howeve r,
wou ld ignore the exp ress lang uag e of § 49.0 9(e)(3).

                                                         5
trial court did not err in granting his motion to quash the indictment, and we affirm that

order.



                                                Brian Quinn
                                                Chief Justice

Publish.




                                            6
