Affirmed and Memorandum Opinion filed April 11, 2013.




                                       In The


                     Fourteenth Court of Appeals

                               NO. 14-11-00936-CR




                   MICHAEL WAYNE COMEAUX, Appellant


                                         V.


                        THE STATE OF TEXAS, Appellee


                     On Appeal from the 174th District Court
                              Harris County, Texas
                         Trial Court Cause No. 1275099



                      MEMORANDUM OPINION

      Appellant Michael Wayne Comeaux appeals his conviction for the offense
of assault on a family member. In three issues, appellant asserts (1) the evidence is
insufficient to show appellant was previously convicted of assault against a person
with whom he had a dating relationship, as alleged in the indictment; (2) a fatal
variance exists between the allegations in the indictment and the proof offered at
trial regarding this prior conviction; and (3) appellant’s conviction of felony assault
on a family member violated the ex post facto prohibitions of the United States
Constitution and the Texas Constitution. We affirm.

                    FACTUAL AND PROCEDURAL BACKGROUND

      Appellant was charged by indictment for an assault against the complainant,
appellant’s wife at the time of the incident, which occurred in August 2010. The
indictment also alleged the following:

      It is further presented that before the commission alleged above, the
      Defendant, on October 4, 2001, in the COUNTY CRIMINAL
      COURT AT LAW NO. 1 of HARRIS County, Texas, in Cause No.
      1073331, was convicted of ASSAULT which was committed against
      a person with whom the Defendant had a dating relationship.
      At trial, the complainant testified that appellant hit and choked her one
evening in August 2010. The jury found appellant guilty as charged and assessed
punishment at forty-five years’ confinement.

    APPELLANT’S WAIVER OF HIS RIGHT TO ASSERT THE FIRST TWO ISSUES
      Appellant does not contend that the evidence is insufficient to show that he
committed the assault against the complainant in August 2010. Rather, appellant’s
appellate issues focus on the prior assault conviction on October 4, 2001, alleged in
the indictment (“Prior Conviction”). The Prior Conviction was alleged in the
indictment to make the offense a third-degree felony. See Tex. Penal Code. Ann. §
22.01(b)(2)(A); Tex. Fam. Code Ann. §§ 71.0021(b), 71.003, 71.005 (West 2013).
In his first issue, appellant asserts that the evidence is insufficient to prove the
Prior Conviction. In his second issue, appellant asserts a fatal variance exists
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between the allegations in the indictment and the proof offered at trial that makes
the evidence insufficient to prove the Prior Conviction.

       At the beginning of trial in the guilt/innocence phase, the State offered into
evidence, State’s Exhibit 1, a written Stipulation of Evidence, signed by appellant
and his trial counsel. In this document, appellant stipulated that he was convicted
of the Prior Conviction alleged in the indictment. This stipulation was admitted
into evidence without objection. This stipulation was a judicial admission that
removed the need for proof of the Prior Conviction.1 See Bryant v. State, 187
S.W.3d 397, 400–02 (Tex. Crim. App. 2005). By entering into that stipulation,
appellant waived his right to put the government to its proof regarding the Prior
Conviction, and appellant cannot complain on appeal that the evidence is
insufficient to prove the Prior Conviction. See id. Accordingly, we overrule
appellant’s first and second issues.2

                            NO EX POST FACTO VIOLATIONS

       In his third issue, appellant contends that his conviction of felony assault on
a family member violated the ex post facto prohibitions of the United States
Constitution and the Texas Constitution because it was based upon language in
Texas Penal Code section 22.01(b) that was not in effect at the time of the Prior
Conviction in 2001. The part of Texas Penal Code section 22.01(b) relied upon in
the indictment to allege a felony offense in the case under review took effect on
September 1, 2005, and applies to offenses committed on or after that date. See


1
 Thus, it was not necessary for the stipulation to be admitted into evidence, though in the case
under review, the stipulation was admitted into evidence. See Bryant v. State, 187 S.W.3d 397,
400–02 (Tex. Crim. App. 2005).
2
  Even if appellant had not waived these issues, the stipulation was admitted into evidence, and
these issues would lack merit.
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Act of May 27, 2005, 79th Leg., R.S., ch. 788, 2005 Tex. Gen. Laws 2709, 2709,
2711 (amended) (codified at Tex. Penal Code. Ann. § 22.01(b)(2)(A) (West
2013)). It is undisputed that this statute was in effect when appellant committed
the charged offense in 2010, but appellant is correct that this statute was not in
effect on the date of the Prior Conviction or on the date of the commission of this
2001 offense.

      It is well settled that a conviction which occurred prior to the enactment of a
statute providing for increased punishment upon a subsequent conviction may be
used for enhancement purposes under that statute, and that such usage does not
violate the ex post facto prohibitions of the United States Constitution or the Texas
Constitution. See Ex parte White, 211 S.W.3d 316, 320 (Tex. Crim. App. 2007);
Vasquez v. State, 477 S.W.2d 629, 632 (Tex. Crim. App. 1972). Even if the Prior
Conviction could not have been used as a basis for making an assault a third-
degree felony in 2001, the Texas Penal Code allowed the Prior Conviction to be
used in this manner when appellant committed the charged offense in 2010. See
Tex. Penal Code. Ann. § 22.01(b)(2)(A). Therefore, appellant’s felony conviction
did not violate the ex post facto prohibitions of the United States Constitution or
the Texas Constitution. See Ex parte White, 211 S.W.3d at 320; Vasquez, 477
S.W.2d at 632. Accordingly, we overrule appellant’s third issue.

      The trial court’s judgment is affirmed.



                                       /s/       Kem Thompson Frost
                                                 Justice

Panel consists of Justices Frost, Christopher, and Jamison.
Do Not Publish — TEX. R. APP. P. 47.2(b).

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