                        COURT OF APPEALS
                         SECOND DISTRICT OF TEXAS
                              FORT WORTH

                             NO. 02-12-00450-CR


MIGUEL MEDRANO                                                     APPELLANT

                                       V.

THE STATE OF TEXAS                                                      STATE


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          FROM THE 297TH DISTRICT COURT OF TARRANT COUNTY

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                        MEMORANDUM OPINION 1

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      Appellant Miguel Medrano appeals his conviction for felony driving while

intoxicated and 80-year sentence. In two points, he asserts that the evidence

was insufficient to support his conviction based on deficiencies in the

enhancement paragraphs of the indictment. We affirm the trial court’s judgment.




      1
      See Tex. R. App. P. 47.4.
                               I. BACKGROUND

      On June 30, 2010, a grand jury returned an indictment charging Appellant

with driving while intoxicated on February 7, 2010. See Tex. Penal Code Ann.

§ 49.04 (West Supp. 2013). The indictment included two offense-enhancement

paragraphs: 2 (1) Appellant was convicted of felony driving while intoxicated on

September 8, 2000, in the 213th Criminal District Court of Tarrant County in

cause number 0765598D (“the 2000 offense-enhancement conviction”) and (2)

Appellant was convicted of driving while intoxicated on September 2, 1992, in

County Criminal Court Four of Tarrant County in cause number 0414660 (“the

1992 offense-enhancement conviction”).       These two prior convictions were

elements of the offense that the State had to prove beyond a reasonable doubt at

the guilt-innocence phase of the trial. See Gibson v. State, 995 S.W.2d 693, 696

(Tex. Crim. App. 1999). The offense-enhancement paragraphs had the effect of

enhancing the charged offense from a class-A misdemeanor to a third-degree

felony. See Tex. Penal Code Ann. § 49.09(b), (d) (West Supp. 2013).

      The indictment also contained two punishment-enhancement paragraphs: 3

(1) Appellant was finally convicted of felony driving while intoxicated on June 21,



      2
       Offense-enhancement paragraphs also are referred to as jurisdictional
enhancements or felony-repetition paragraphs. E.g., Pena v. State, 191 S.W.3d
133, 143 n.10 (Tex. Crim. App. 2006); Ex parte Serrato, 374 S.W.3d 636, 637
(Tex. App.—Fort Worth 2012, pet. ref’d).
      3
       Punishment-enhancement paragraphs also are referred to as habitual-
offender paragraphs. E.g., Hardeman v. State, 1 S.W.3d 689, 691 (Tex. Crim.
                                        2
2007, in the 297th District Court of Tarrant County in cause number 1003079D

(“the 2007 punishment-enhancement conviction”) and (2) Appellant was finally

convicted of felony driving while intoxicated on September 8, 2000, in the 213th

District Court of Tarrant County in cause number 0618178D (“the 2000

punishment-enhancement conviction”).         By alleging these two offenses as

punishment enhancements, the punishment range for the charged offense was

enhanced from that available for a third-degree felony—a term of not more than

ten years or less than two years and a fine not to exceed $10,000—to

“imprisonment . . . for life, or for any term of not more than 99 years or less than

25 years.” Tex. Penal Code Ann. § 12.42(d) (West Supp. 2013); see also id.

§ 12.34 (West 2011). A conviction used as an offense enhancement cannot also

be used as a punishment enhancement and vice versa. 4 See id. § 49.09(g).

      Appellant pleaded not guilty to the indictment and not true to the

punishment-enhancement paragraphs.           A jury convicted Appellant of felony

driving while intoxicated, found the punishment-enhancement paragraphs true,

and assessed Appellant’s punishment at 80 years’ confinement.           On appeal,

Appellant attacks the enhancement paragraphs.



App. 1999); Gallemore v. State, 312 S.W.3d 156, 158 (Tex. App.—Fort Worth
2010, no pet.).
      4
      Appellant does not argue that any of the offense-enhancement
paragraphs contain the same prior offenses as those included in the punishment-
enhancement paragraphs. Indeed, although two of the prior convictions allege
the same date—September 8, 2000—they have different cause numbers.

                                         3
                       II. ENHANCEMENT PARAGRAPHS

         A. ALLEGED DATE OF 2000 OFFENSE-ENHANCEMENT CONVICTION

      In his first point, Appellant argues that the date of finality for the 2000

offense-enhancement conviction should have been the date alleged in the

indictment and not the date of conviction. The State concedes that Appellant

was adjudged guilty of the 2000 offense-enhancement conviction on September

8, 2000, and that the conviction did not become final until 2002.         At trial,

Appellant moved for directed verdict because the date the 2000 offense-

enhancement conviction became final is not the date alleged in the indictment.

The trial court denied Appellant’s motion. Appellant now argues that because the

2002 finality date should control, the evidence was “at fatal variance from the

indictment,” which renders it insufficient to support his conviction.

      The State argues that because a punishment-enhancement paragraph

does not require such particularity, a variance between the proof at trial and the

date alleged in the indictment in an offense-enhancement paragraph is not fatal.

However, Appellant is attacking a variance between the proof at trial and the date

alleged as to the 2000 offense-enhancement conviction, not the date of either of

the punishment-enhancement convictions. An offense-enhancement paragraph

cannot be equated to a punishment-enhancement paragraph mainly because an

offense-enhancement paragraph is an element of the offense that must be

proved beyond a reasonable doubt at the guilt-innocence portion of the trial,

while a punishment enhancement relates solely to the available sentencing

                                          4
range.    See, e.g., Tex. Penal Code Ann. § 12.42(d) (providing enhanced

punishment range for repeat offenders); Gibson, 995 S.W.2d at 696 (holding

offense-enhancement paragraphs are elements of the offense).

      However, offense-enhancement paragraphs are not required to include the

exact date that the prior conviction occurred or became final, and the State is not

required to prove such. 5 See Carter v. State, No. 02-10-00503-CR, 2012 WL

254077, at *3 (Tex. App.—Fort Worth Jan. 26, 2012, pet. ref’d) (mem. op., not

designated for publication); Tietz v. State, 256 S.W.3d 377, 378–79 (Tex. App.—

San Antonio 2008, pet. ref’d). Compare Tex. Penal Code Ann. § 49.09(b)(2)

(enhancing DWI offense to third-degree felony if person “has previously been

convicted . . . two times of any other offense relating to the operating of a motor

vehicle while intoxicated”) with id. § 12.42(d) (providing enhanced penalties for

felony offense if “defendant has previously been finally convicted of two felony

offenses”). 6 “[S]ection 49.09(b) simply requires the State to show the fact finder

that a defendant has been twice convicted of DWI, nothing more and nothing

less.” Bower v. State, 77 S.W.3d 514, 518 (Tex. App.—Houston [1st Dist.] 2002,

pet. ref’d). Section 49.09(b) dictates only that the 2000 offense-enhancement

      5
       We note that it does not appear that the 2000 offense enhancement
involved a probated sentence; therefore, section 49.09(d) does not apply. Tex.
Penal Code Ann. § 49.09(d).
      6
        Appellant raises no argument attacking the sufficiency of the evidence to
show that he “has previously been convicted . . . two times of any other offense
relating to the operating of a motor vehicle while intoxicated.” Tex. Penal Code
Ann. § 49.09(b)(2).

                                        5
conviction and the 1992 offense-enhancement conviction occurred before the

2010 charged offense. In short, the State need only have proved Appellant’s

status as a “felon subject to prosecution” under sections 49.04 and 49.09. State

v. Mason, 980 S.W.2d 635, 641 (Tex. Crim. App. 1998) (making statement in

context of section 46.04); see also Carter, 2012 WL 254077, at *3. Here, the fact

that the 2000 offense-enhancement conviction was appealed and, thus, was not

final for appellate purposes on September 8, 2000, does not render the

indictment to be at a fatal variance with the proof at trial. This is especially true

when there is no evidence that Appellant was surprised or prejudiced by the date

alleged for the 2000 offense-enhancement conviction. See Human v. State, 749

S.W.2d 832, 837–39 (Tex. Crim. App. 1988). We overrule Appellant’s first point.

           B. OCCURRENCE OF PUNISHMENT-ENHANCEMENT CONVICTIONS

       In his second point, Appellant argues that the date for the 2000

punishment-enhancement conviction could not have occurred “before” the 2000

offense-enhancement conviction as alleged in the indictment because both were

alleged to have occurred on September 8, 2000; therefore, the evidence was

insufficient.   In short, Appellant argues that the punishment-enhancement

convictions were required to have occurred before the dates of the offense-

enhancement convictions.        It is undisputed that Appellant’s punishment-

enhancement and offense-enhancement convictions occurred and became final

before the charged offense.



                                         6
      After the conclusion of the guilt-innocence phase of the trial, the trial court

charged the jury that, in order to convict Appellant of felony driving while

intoxicated, it had to find that Appellant was convicted of the 1992 offense-

enhancement conviction and of the 2000 offense-enhancement conviction before

he committed the charged offense—driving while intoxicated on February 7,

2010. After the jury so found and after the conclusion of the punishment phase

of the trial, the trial court charged the jury that if it found the 2000 punishment-

enhancement conviction and the 2007 punishment-enhancement conviction were

true, the available range of punishment was twenty-five to ninety-nine years’

confinement or life.

      “For [punishment] enhancement by [a] prior conviction, the State is

required to allege and prove that the defendant was previously convicted and

that the conviction became final before the primary offense was committed.”

Wilson v. State, No. 02-10-00439-CR, 2012 WL 662339, at *6 (Tex. App.—Fort

Worth Mar. 1, 2012, no pet.) (mem. op., not designated for publication). Thus,

section 12.42(d) only requires that a punishment-enhancement conviction

become final before the charged offense. See Jordan v. State, 256 S.W.3d 286,

290–91 (Tex. Crim. App. 2008).

      Here, Appellant does not argue that the punishment-enhancement

convictions failed to occur before the charged offense. Therefore, there was no

error in allowing the jury to assess Appellant’s sentence under an enhanced

sentencing range based on its findings that (1) Appellant was guilty of felony

                                         7
driving while intoxicated (partially founded on the 1992 and 2000 offense-

enhancement convictions) and (2) the 2000 and 2007 punishment-enhancement

convictions were true. See Carter, 2012 WL 254077, at *3–4 (“[T]here is no

requirement that . . . convictions used to enhance Appellant’s instant DWI to a

felony[] had to have occurred before the offenses or convictions used to enhance

his sentence.”). We overrule Appellant’s second point.

                               III. CONCLUSION

      Having overruled Appellant’s points, we affirm the trial court’s judgment.



                                                   LEE GABRIEL
                                                   JUSTICE

PANEL: LIVINGSTON, C.J.; GARDNER and GABRIEL, JJ.

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

DELIVERED: November 27, 2013




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