                                   NO. 07-08-0302-CR

                              IN THE COURT OF APPEALS

                       FOR THE SEVENTH DISTRICT OF TEXAS

                                      AT AMARILLO

                                         PANEL A

                                    AUGUST 24, 2009

                          ______________________________


                     CLIFTON WAYNE HARDEN, JR., APPELLANT

                                             V.

                          THE STATE OF TEXAS, APPELLEE

                        _________________________________

              FROM THE 47TH DISTRICT COURT OF POTTER COUNTY;

                   NO. 54,244-A; HONORABLE HAL MINER, JUDGE

                         _______________________________

Before CAMPBELL and HANCOCK and PIRTLE, JJ.


                                CONCURRING OPINION


       I agree with the result reached by the majority, and I applaud the decision to

address Appellant’s issues as presented, however, I write separately to express my opinion

that Appellant’s general premise is incorrect and, therefore, the trial court did not give an

incorrect admonishment as to the possible range of punishment.
        Appellant, Clifton Wayne Harden, Jr., was indicted for the offense of possession of

a controlled substance, to-wit: cocaine, in an amount of less than one gram.1 In addition

to the primary offense, the indictment alleged Appellant had previously been convicted of

the second degree felony offense of aggravated assault in cause number 31,597-B, in the

181st District Court of Potter County, Texas, on November 9, 1992.2 The indictment further

alleged that, before the commission of the primary offense and after the conviction in

cause number 31,597-B became final, Appellant was previously convicted of the second

degree felony offense of possession of a controlled substance in cause number 39,360-A,

in the 47th District Court of Potter County, Texas, on November 16, 1998.3


        Appellant contends that because the primary offense in cause number 39,360-A

was for a state jail felony offense it could not be used to enhance the primary offense in

        1
           See Tex. Health & Safety Code Ann. § 481.115(b) (Vernon 2003). Depending upon the aggregate
weight of the controlled substance, an offense under § 481.115 can range from a state jail felony to a special
felony punishable by im prisonm ent in the Institutional Division of the Texas Departm ent of Crim inal Justice
for life or for a term of not m ore than 99 years or less than 10 years, and a fine not to exceed $100,000.
W ithout m ore, the offense alleged in this cause would be a state jail felony punishable by confinem ent in the
State Jail Division of the Texas Departm ent of Crim inal Justice for any term of not m ore than 2 years or less
than 180 days and a fine not to exceed $10,000. Tex. Penal Code Ann. § 12.35(a), (b) (Vernon 2003).

        2
         See Tex. Penal Code Ann. § 22.02 (Vernon 2008). An offense under § 22.02 is a felony of the
second degree, except that the offense is a felony of the first degree if the offense is com m itted under
circum stances described in § 22.02(b).

        3
          See Tex. Health & Safety Code Ann. § 481.115(b) (Vernon 2003). The indictm ent in cause num ber
39,360-A alleged that Appellant intentionally and knowingly possessed a controlled substance, to-wit: cocaine,
in an am ount of less than one gram . In addition to the prim ary offense, the indictm ent alleged that Appellant
had previously been convicted of the felony offense of rape in cause num ber 3447, in the 31 st District Court
of Gray County, Texas, on June 11, 1982. The indictm ent further alleged that, before the com m ission of the
prim ary offense and after the conviction in cause num ber 3447 becam e final, Appellant was previously
convicted of the second degree felony offense of aggravated assault in cause num ber 31,597-B, in the 181 st
District Court of Potter County, Texas, on Novem ber 9, 1992. As such, in cause num ber 39,360-A, Appellant
was convicted of a second degree felony. See Tex. Penal Code Ann. § 12.42(a)(2) (Vernon Supp. 2008).



                                                       2
this cause to a second degree felony. Appellant is incorrect. If it is shown on the trial of

a state jail felony punishable under section 12.35(a) that the defendant has previously

been finally convicted of two felonies, and the second previous felony is for an offense that

occurred subsequent to the first previous conviction having become final, on conviction of

the primary offense the defendant shall be punished for a second degree felony. See Tex.

Penal Code Ann. § 12.42(a)(2) (Vernon Supp. 2008).


       The offense charged in cause number 39,360-A was not a “non-aggravated state

jail felony“ punishable under Texas Penal Code § 12.35(a); but was, instead, a state jail

felony punishable as a second degree felony under § 12.42(a)(2). In that cause number,

Appellant was convicted of the state jail felony offense of possession of a controlled

substance (primary offense), and it was both alleged and shown that he had previously

been finally convicted of two felonies (cause numbers 3447 and 31,597-B), and the second

previous felony (aggravated assault, cause number 31,597-B) being for an offense that

occurred subsequent to the first previous conviction (rape, cause number 3447) having

become final. As such, Appellant was convicted of a second degree felony offense in

cause number 39,360-A.


       Here, Appellant was convicted of the state jail felony offense of possession of a

controlled substance (primary offense), and it was both alleged and shown that he had

previously been finally convicted of two felonies (cause numbers 31,597-B and 39,360-A),

and the second previous felony (cause number 39,360-A) being for an offense that


                                             3
occurred subsequent to the first previous conviction (cause number 31,597-B) having

become final. As such, upon conviction, Appellant was subject to being punished for a

second degree felony. See Tex. Penal Code Ann. § 12.42(a)(2) (Vernon Supp. 2008).


      Accordingly, the trial court did not err in admonishing Appellant as to the potential

range of punishment.




                                                       Patrick A. Pirtle
                                                           Justice

Do not publish.




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