
Opinion issued June 8, 2006












In The
Court of Appeals
For The
First District of Texas




NO. 01-05-00717-CR




PAUL VANCE NIXON, Appellant

V.

THE STATE OF TEXAS, Appellee




On Appeal from the 232nd District Court
Harris County, Texas
Trial Court Cause No. 1023541




O P I N I O N
          Appellant, Paul Vance Nixon, was charged by indictment with the offense of
unlawful labeling with one enhancement alleging a prior felony conviction.  Without
a punishment agreement with the State, appellant pleaded guilty to the charge and
true to the enhancement.  The trial court found appellant guilty as charged and the
enhancement paragraph true and assessed punishment at three years’ confinement. 
Appellant appealed, contending that his plea was involuntary because the trial court’s
admonishment stated an incorrect range of punishment and the trial court erred in
considering an invalid enhancement for the purpose of sentencing appellant.  We
affirm.
BACKGROUND
          Appellant was indicted for possession, for commercial advantage and private
gain, of at least 65 recordings of DVD movies during a 180-day period for which the
outside cover did not clearly and conspicuously disclose the name and address of the
manufacturer, a violation of section 35.94 of the Texas Business and Commerce
Code.   Section 35.94 provides, 
An offense under this section is punishable by:  
 
(1) a fine of not more than $250,000, imprisonment for not more
than five years, or both, if:
(A) the offense involves at least 65 unauthorized recordings
during a 180-day period; or
(B) the defendant has been previously convicted under this
section; 
 
(2) a fine of not more than $250,000, imprisonment for not more
than two years, or both, if the offense involves more than seven but less
than 65 unauthorized recordings during a 180-day period; or 
 
(3) a fine of not more than $25,000, confinement in the county jail
for not more than one year, or both for any other offense.  

Tex. Bus. & Com. Code Ann. § 35.94(b) (Vernon 2002).  
          At the punishment hearing, the State asserted that a finding of true to the
enhancement paragraph raised appellant’s punishment range from a third degree to
a second degree felony.  The punishment range for a second degree felony is not more
than 20 or less than 2 years imprisonment.  See Tex. Pen. Code Ann. § 12.33(a)
(Vernon 2003).  The trial court assessed punishment at three years in prison, and
appellant appealed.
DISCUSSION
Range of Punishment
          In his first issue, appellant contends that the trial court erred by admonishing
him as to the wrong range of punishment, thus rendering his plea involuntary. 
Appellant argues that his punishment range was fixed by statute at up to five years
imprisonment and a fine of not more than $250,000, or both.  Recognizing that there
is a similarity between the punishment scheme in the non-penal code offenses of
illegal labeling of recordings
  and failure to stop and render aid, see Tex. Transp.
Code Ann. § 550.021(c) (Vernon 1999), appellant attempts to distinguish the two
offenses by asserting that the statute governing the labeling violation contains its own
enhancement scheme, while the failure-to-stop statute does not.  
          Section 35.94 does not contain an enhancement scheme.  Rather, the increased 
punishment scheme in the statute relates to the grade of the offense.  A graded offense
is one for which the offender is subject to a more severe penalty for a higher grade
than for a lower grade of the offense.  Bruns v. State, 22 S.W.3d 540, 543 (Tex.
App.—El Paso 2000, no pet.).  Examples of such graded offenses are theft,
 driving
while intoxicated,
 and assault.
  Each of these offenses, when elevated by its grade-of-offense provisions to a felony, is also subject to the general enhancement statute
for the purpose of increasing punishment.  See Tex. Pen. Code. Ann. §12.42 (Vernon
Supp. 2005).
          The grade-of-offense provisions in section 35.94 provide for different
punishments depending on the number of unauthorized recordings in the accused’s
possession and the existence of a previous conviction under that section.  The section
does not provide for any enhancement of the highest level of punishment—a fine of
not more than $250,000, imprisonment for not more than five years, or both.  
          In Childress v. State, the Court of Criminal Appeals, in considering the failure-to-stop-and-render-aid statute, held that section 12.41 of the Penal Code, which
provides that “any conviction not obtained from a prosecution under [the Penal Code]
shall be classified . . . as [a] ‘felony of the third degree’ if imprisonment in a
penitentiary is affixed to the offense as a possible punishment,” applies to the offense
to be enhanced under subchapter D of the Penal Code.  784 S.W.2d 361, 365 (Tex.
Crim. App. 1990).  Like the failure-to-stop-and-render-aid statute, section 35.94 is
not classified in the terms of the Penal Code.  Nevertheless, imprisonment in a
penitentiary is a possible punishment under section 35.94.  Therefore, for the purpose
of enhancement and consistent with Childress, it is classified as a third-degree felony
and, with one enhancement, is punishable as a second-degree felony.  See Tex. Pen.
Code Ann. § 12.42(a)(3) (Vernon Supp. 2005).  Accordingly, we hold that the trial
court did not admonish appellant with the wrong range of punishment.  We overrule
appellant’s first issue.  
 

Validity of Enhancement
          In his second issue, appellant contends, “The court erred in considering for
purposes of sentencing an enhancement that was invalid.”  Appellant does not assert
that the conviction used for enhancement was invalid.  Rather, he appears to argue
that his primary offense was not subject to enhancement and refers us to his first
issue.  Because we have already determined that the offense under section 35.94 is
subject to enhancement when punishable by imprisonment, we hold that the
enhancement was valid.  We overrule appellant’s second issue.
CONCLUSION
          We affirm the judgment. 
 
 
                                                             Sam Nuchia
                                                             Justice

Panel consists of Chief Justice Radack and Justices Taft and Nuchia.

Publish.  Tex. R. App. P. 47.2(b). 
