                                   NO. 07-07-0315-CR

                              IN THE COURT OF APPEALS

                       FOR THE SEVENTH DISTRICT OF TEXAS

                                      AT AMARILLO

                                         PANEL B

                                   OCTOBER 15, 2008

                          ______________________________


                           ROBERT P. SEPEDA, APPELLANT

                                             v.

                          THE STATE OF TEXAS, APPELLEE


                        _________________________________

            FROM THE 140TH DISTRICT COURT OF LUBBOCK COUNTY;

              NO. 2006-414,673; HON. JIM BOB DARNELL, PRESIDING

                         _______________________________

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


                                         OPINION


       Appellant, Robert P. Sepeda, was indicted for the felony offense of driving while

intoxicated, third or more offense, which included jurisdictional allegations of two prior

convictions for the offense of driving while intoxicated. Further, the indictment alleged two

other felony convictions for the purpose of punishment enhancement. A jury found

appellant guilty and found that both prior enhancement allegations were true. The jury
assessed appellant’s punishment at confinement in the Institutional Division of the Texas

Department of Criminal Justice for 50 years. Through his issues, appellant contends that

the use of the prior driving while intoxicated convictions to elevate the case to a felony

violates the prohibitions against ex post facto laws of both the United States Constitution

and the Texas Constitution. Disagreeing with appellant, we affirm.


                          Factual and Procedural Background


       Because appellant is not challenging the sufficiency of the evidence, only the

necessary factual background will be recited. Appellant was arrested on July 18, 2006, for

the offense of driving while intoxicated. On December 6, 2006, a grand jury returned an

indictment against appellant charging him with driving while intoxicated felony, third or

more offense. Contained within that indictment were allegations that appellant had been

convicted of driving while intoxicated on two other occasions. The first conviction was in

cause number 91-486,017 in the County Court at Law #1 of Lubbock County, Texas. The

second conviction was in cause number 90-480,225 in the County Court at Law #1 of

Lubbock County, Texas. The proof at trial was that the date of conviction in cause number

91-486,017 was September 9, 1993, and the date of conviction in cause number 90-

480,225 was March 1, 1991.1 Appellant objected to the use of these jurisdictional prior

convictions to elevate his driving while intoxicated charge to a felony level because each

conviction was more than 10 years old. Appellant’s objection was that the use of these



       1
        The indictment alleged that the date of the first prior conviction was September 9,
2003, though the proof was that it was September 9, 1993. The erroneous date was not
objected to and we will treat the same as shown by the proof at trial.

                                            2
convictions subjected him to an ex post facto law as the prior driving while intoxicated

statue, article 6701l-1 of the Texas Revised Statutes had a 10 year limitation on the use

of prior convictions.2   The objection at trial was directed to both the United States

Constitution and Texas Constitution prohibitions against ex post facto laws. The trial court

overruled the objections and the jury returned a verdict of guilty and answered “We Do” as

to the special issues submitted regarding the prior driving while intoxicated convictions.

Accordingly, the trial court sentenced appellant to a term of confinement of 50 years in the

Institutional Division of the Texas Department of Criminal Justice. This appeal followed.


       Through two issues, appellant challenges the use of the prior convictions for

purposes of proving the jurisdictional requirements of the felony driving while intoxicated

statute. His challenge is based upon the objection at trial that to allow the use of the prior

convictions is a violation against the prohibitions against ex post facto laws contained in




       2
       Act of May 23, 1983, 68th Leg., R.S., ch. 303, § 3, 1983 Tex. Gen. Laws 1568,
1574-77, repealed by Act of May 19, 1993, 73rd Leg. R.S., ch. 900 §1.15, 1993 Tex. Gen.
Laws 3586, 3704.

        This provision was recodified, in substantially the same form, in 1993 as Texas
Penal Code section 49.09(e) and existed in this form until later amended by a provision
effective on September 1, 2001. See Act of May 19, 1993, 73rd Leg., R.S., ch. 900, § 1.01,
1993 Tex. Gen. Laws 3586, 3698, amended by Act of May 21, 2001, 77th Leg., R.S., ch.
648, § 2, 2001 Tex. Gen. Laws 1213, 1214, repealed by Act of May 25, 2005, 79th Leg.,
R.S., ch. 996, § 3, 2005 Tex. Gen. Laws 3363, 3364. The punishment enhancement
portion of the 1993 statute remained the same as the previous statute and will be treated
as the same. Because the 2001 version of the statute became effective September 1,
2001, it is not relevant to this opinion.


                                              3
the United States Constitution3 and the Texas Constitution.4 We disagree with appellant’s

contentions and will affirm.


                                       Standard of Review


       Appellant’s contention was raised by an objection to the State’s offer of proof

regarding the prior convictions. As the objection was to the introduction of the State’s

evidence, we review the trial court’s decision to admit the evidence under an abuse of

discretion standard. See Weatherred v. State, 15 S.W.3d 540, 542 (Tex.Crim.App. 2000).

An appellate court should affirm the trial court’s ruling unless it finds that the decision is not

within the zone of reasonable disagreement. See Green v. State, 934 S.W.2d 92, 102

(Tex.Crim.App. 1996). Stated another way, we will find an abuse of discretion only when

the trial court acted without reference to any guiding rules or principles by acting arbitrarily

or unreasonably. See Lyles v. State, 850 S.W.2d 497, 502 (Tex.Crim.App. 1993).


                                       Ex Post Facto Laws


       That ex post facto laws are prohibited by both cited constitutions is well settled. The

issue presented is what constitutes an ex post facto law. The leading case answering the

question on the federal level is Carmell v. Texas, and Texas has adopted the same

analytical approach to the issue. See Carmell v. Texas, 529 U.S.513, 522, 120 S.Ct. 1620,

146 L.Ed.2d 577 (2000); see Grimes v. State, 807 S.W.2d 582, 583-84 (Tex.Crim.App.



       3
           See U.S. CONST . art. I, §10.
       4
           See TEX . CONST . art. I, § 16.

                                                4
1991). The Carmell analysis of the four types of ex post facto violations is derived from

Justice Chase’s opinion in Calder v. Bull. See Calder v. Bull, 3 U.S. 386, 390, 3 Dall. 386,

1 L.Ed. 648 (1798). The four categories of ex post facto laws recognized by the Supreme

Court of the United States and by the Texas Court of Criminal Appeals are: 1) laws that

make an action done before the passing of the law, and which was innocent when done,

criminal, and punishes such action; 2) every law that aggravates a crime, or makes it

greater than it was, when committed; 3) every law that changes the punishment and inflicts

a greater punishment than the law annexed to the crime when it was committed; and 4)

every law that alters the legal rules of evidence, and receives less, or different testimony,

than the law required at the time of commission of the offense in order to convict the

offender. Carmell, 529 U.S. at 522; Grimes, 807 S.W.2d at 584. When we engage in an

ex post facto analysis, our focus is whether the statute assigns more severe criminal or

penal consequences to an act than did the law in place when the act occurred and it is

irrelevant whether the statutory change touches any vested rights. Grimes, 807 S.W.2d

at 587 (citing Weaver v. Graham, 450 U.S. 24, 30 n.13, 101 S.Ct. 960, 67 L.Ed.2d 17

(1981)).


       Additionally, the general issue of the use of prior convictions to enhance punishment

has been analyzed by both the Supreme Court of the United States and the Texas Court

of Criminal Appeals. See McDonald v. Massachusetts, 180 U.S. 311, 312, 21 S.Ct. 389,

45 L.Ed. 542 (1901); Shaw v. State, 529 S.W.2d 75, 76 (Tex.Crim.App. 1975). Both courts

have held that use of a conviction that occurred before enactment of the enhancement

statute does not violate the prohibition against ex post facto laws because the punishment


                                             5
is for the new crime only, but is heavier because the defendant is a habitual criminal.

McDonald, 180 U.S. at 312; Shaw, 529 S.W.2d at 76.


                                         Analysis


      The use of a person’s prior convictions that could not have been used to elevate the

driving while intoxicated charge to a felony at the time they were originally committed has

been addressed by a number of the Courts of Appeal in this state. In each instance, the

courts have held that the very application appellant complains of is not a violation of the

prohibition against ex post facto laws. See Castillo v. State, No. 03-07-00546-CR, 2008

Tex. App. LEXIS 6225, at *2 (Tex.App.–Austin, August 14, 2008, no pet. h.) (not

designated for publication); Crocker v. State, No. 12-07-00413-CR, 2008 Tex. App. LEXIS

5259, at *7 (Tex.App.–Tyler, July 16, 2008, no pet. h.); State v Pieper, 231 S.W.3d 9, 14

(Tex.App.–Houston [14th Dist.] 2007, no pet.); Romo v. State, No. 04-05-00602-CR, 2006

Tex. App. LEXIS 10403, at *6 (Tex.App.–San Antonio, December 6, 2006, no pet.). Yet,

appellant urges that we should decide his case by applying the Court of Criminal Appeal’s

decision in Scott v. State, 55 S.W.3d 593 (Tex.Crim.App. 2001). In Scott, the Court of

Criminal Appeals reversed the conviction finding that the use of Scott’s previous

successfully completed deferred adjudication to enhance his punishment for the later

offense of aggravated sexual assault violated the prohibition against ex post facto laws.

We decline to do so. The Scott opinion made it very clear that the prior deferred

adjudication statute contained an explicit limitation on the collateral consequences of

deferred adjudication.   Id. at 597. The statute in question stated, “A dismissal and

discharge under this section may not be deemed a conviction for purposes of

                                            6
disqualifications or disabilities imposed by law for conviction of an offense except that

. . . .”5 Id. at 595 n.3. Subsequently, the statute was amended to add a provision that

made a completed deferred adjudication count as a conviction for purposes of the

aggravated sexual assault punishment regardless of whether the defendant had

successfully completed his deferred community supervision.6 The Court of Criminal

Appeals reasoned that because the statute in existence at the time of Scott’s conviction

contained this express limitation that he was entitled to rely upon. Id. at 597. It was the

removal of the statutory limitation in the former version of the deferred adjudication law that

was at issue in Scott. Ultimately, the court ruled that the defendant was entitled to rely on

the previous restriction. Id. at 597.


       The statutory limitation referred to in Scott is not present in the former article 6701l-

1. At the time appellant was previously convicted, the statute simply had a provision that

the window for use of prior convictions was 10 years without the type of express limitation

found by the Court of Criminal Appeals to be crucial.7 Accordingly, when we analyze the

facts of the case before the Court under the holding in the Scott case, we come to the



       5
           None of the exceptions were applicable to the situation in Scott.
       6
       See Act of May 23, 1997, 75th Leg., R.S., ch. 667, § 4, 1997 Tex. Gen. Laws
2250, 2252 (amended 1999) (current version at Tex. Pen. Code Ann. § 12.42(g)(1)
(Vernon Supp. 2008)).
       7
       The applicable provision was article 6701l-1(i) which read, “A conviction may not
be used for the purposes of enhancement under Subsection (d) or (e) of this article if:

       1. the conviction was a final conviction under provisions of Subsections (g)
       and (h) of this article and was for an offense committed more than 10 years
       before the offense for which the person is being tried was committed;. . . .”

                                               7
conclusion that Scott does not control. Rather, we have a factual pattern where the

punishment is for the offense that appellant was tried for and punishment has been

increased because of the recidivist nature of appellant’s conduct. McDonald, 180 U.S. at

312; Shaw, 529 S.W.2d at 76.


       This leads to the conclusion that the trial court was correct in its ruling on the

objection to the evidence. Therefore, the trial court could not have abused its discretion

because it followed appropriate legal principles. We overrule appellant’s contention to the

contrary.


                                       Conclusion


       Having overruled appellant’s issues, we affirm the judgment of the trial court.




                                   Mackey K. Hancock
                                        Justice

Publish.




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