      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                      NO. 03-06-00305-CR



                                   Jorge Saucedo, Appellant

                                                 v.

                                  The State of Texas, Appellee


    FROM THE DISTRICT COURT OF TRAVIS COUNTY, 167TH JUDICIAL DISTRICT
      NO. D-1-DC-06-904023, HONORABLE MICHAEL LYNCH, JUDGE PRESIDING



                            MEMORANDUM OPINION


               A jury convicted appellant Jorge Saucedo of the offense of third-degree felony driving

while intoxicated as enhanced by prior convictions. In two points of error, appellant challenges the

legal sufficiency of the evidence and contends that the enhancement provision of Texas’s DWI

statute violates the state and federal constitutional prohibitions on ex post facto laws. Because we

conclude that the evidence is legally sufficient and the enhancement provision does not amount to

an unconstitutional ex post facto application of law, we affirm the judgment of conviction.


                                  FACTUAL BACKGROUND

               On November 23, 2005, Austin Police officers stopped appellant’s vehicle for erratic

driving. After failing the field sobriety tests and based on the officers’ observations, appellant

was arrested and charged with DWI. He was charged by re-indictment with the enhanced third-
degree felony DWI1 based upon three prior convictions relating to the operating of a motor vehicle

while intoxicated: cause number 0037911 of the County Court at Law No. 1 of Williamson County

on July 26, 2000 (“2000 conviction”); cause number 19,301 of the County Court at Law of Caldwell

County on February 22, 1989 (“1989 conviction”); and cause number 307213 of the County Court

at Law No. 6 of Travis County on September 2, 1988 (“1988 conviction”).

               After stipulating to the prior convictions for purposes of the guilt-innocence phase

of the trial, appellant was found guilty of the felony offense of DWI as alleged in the indictment.

At the punishment phase, appellant pleaded not true to the enhancement provision. After finding

the enhancement allegation true, the jury assessed punishment at ten years’ confinement.


                                         DISCUSSION

               Because the current DWI statute was amended in 2005, appellant contends that it

applies only to an offense where all the elements—including prior convictions—are committed after

the effective date of September 1, 2005, and that its application to convictions prior to that date

violates the constitutional prohibition against ex post facto laws. As a consequence, appellant

contends that his 2005 conviction should not be enhanced from a Class B misdemeanor to a third-

degree felony, but should only be enhanced to a Class A misdemeanor because the pre-2005 version

of section 49.09(a) would have only permitted appellant’s 2000 conviction to be used for

enhancement. The State responds that the evidence is legally sufficient and does not violate the




       1
         See Tex. Penal Code Ann. § 12.42(a)(3) (West Supp. 2006), § 49.04(a) (West 2003),
§ 49.09(b)(2) (West Supp. 2006). The indictment also alleged that appellant had been previously
convicted of felony robbery, thus elevating the charge to a second-degree felony.

                                                2
prohibition against ex post facto laws because the legislature, when it amended the DWI

enhancement statute in 2005, did not redefine criminal conduct or increase the punishment after

appellant committed the underlying offense and thus the three prior convictions may be used to

enhance the offense to a felony.

                The current offense was allegedly committed on November 23, 2005, for which

the State indicted appellant for the offense of DWI. Such an offense is a Class B misdemeanor2

unless it is shown that the offender has a previous conviction for a similar offense. A showing of

one previous conviction enhances the offense to a Class A misdemeanor;3 two previous convictions

enhance the offense to a felony of the third degree.4 On the date of appellant’s offense, the 2005

version of section 49.09 of the penal code, the DWI enhancement statute, applied. Tex. Penal Code

Ann. § 49.09 (West Supp. 2006). On both September 2, 1988, and February 22, 1989—two of the

dates on which appellant engaged in his previous criminal conduct—enhancements were governed

by former article 6701l-1 of the Revised Texas Statutes. That statute provided for enhancement for

prior convictions as follows:


       (h)      For the purposes of this article, a conviction for an offense that occurs on or
                after January 1, 1984, is a final conviction, whether or not the sentence for the
                conviction is probated.

       (i)      A conviction may not be used for the purpose of enhancement under
                Subsection (d) or (e) of this article if:



       2
           See Tex. Penal Code Ann. § 49.04(b).
       3
           See id. § 49.09(a).
       4
           See id. § 49.09(b)(2).

                                                   3
               1.      the conviction was a final conviction under the 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; and

               2.      the person has not been convicted of an offense under Subdivision
                       (2), Subsection (a), Section 19.05, Penal Code, or Article 6701l-1, or
                       Article 6701l-2, Revised Statutes, committed within 10 years
                       immediately preceding the date on which the offense for which the
                       person is being tried was committed.


Act of May 27, 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 (codified

as amended at Tex. Penal Code Ann. § 49.09 (West Supp. 2006)).

               After appellant’s 1988 and 1989 convictions, Texas changed its law concerning

which individuals committing DWI offenses were subject to jurisdictional and punishment

enhancements resulting from their prior DWI convictions. Under the current version of the statute,

which is the version applicable to appellant’s current charge, any prior DWI conviction, regardless

of when it occurred, may be used to enhance the charge to achieve felony jurisdiction and increase

punishment. See Tex. Penal Code Ann. § 49.09(b)(2), (d); see also Act of May 25, 2005, 79th Leg.,

R.S., ch. 996, § 3, 2005 Tex. Gen. Laws 3363, 3364 (eff. Sept. 1, 2005) (repealing former penal

code section 49.09(e), which rendered certain prior convictions unavailable for enhancement in part

due to remoteness). This new version of the DWI enhancement statute took effect on September 1,

2005. Id.

               Both the United States and Texas Constitutions prohibit the State from applying an

ex post facto law, and the same standard is employed under both provisions. U.S. Const. art. I, § 10,



                                                 4
cl. 1; Tex. Const. art. I, § 16; Grimes v. State, 807 S.W.2d 582, 586 (Tex. Crim. App. 1991). The

ex post facto clauses prohibit four types of laws: (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) laws

that aggravate a crime, or make it greater than it was, when committed; (3) laws that change the

punishment and inflict a greater punishment than the law assigned to the crime when it was

committed; and (4) laws that alter the legal rules of evidence to receive less or different testimony

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

Carmell v. Texas, 529 U.S. 513, 521 (2000) (quoting Calder v. Bull, 3 U.S. 386, 390 (1798)). When

we engage in an ex post facto analysis, our sole concern is whether the statute at issue assigns more

severe criminal or penal consequences to an act than did the law in place when the act occurred.

Grimes, 807 S.W.2d at 587. The act at issue is the conduct leading to the current criminal charge.

Jordan v. State, 56 S.W.3d 326, 332 (Tex. App.—Houston [1st Dist.] 2001, pet. ref’d).

               Appellant’s conduct at issue in this appeal occurred on November 23, 2005,

more than two months after the new statute took effect on September 1, 2005. By permitting the

State to use appellant’s 1988 and 1989 convictions in addition to the 2000 conviction to enhance

his current charge to a felony, appellant argues that the 2005 changes to the DWI enhancement

statute violate the constitutional prohibition against ex post facto laws. Because the convictions

were too remote and therefore not available for enhancement under article 6701l-1, appellant argues

that the removal of the time limitation in the 2005 version of the statute is unconstitutional because

it increases the punishment for those prior criminal acts beyond what the law permitted at the time




                                                  5
of their commission. For this argument, appellant relies on Scott v. State, 55 S.W.3d 593

(Tex. Crim. App. 2001).

               In Scott, the defendant received deferred adjudication for a charge of indecency with a

child. At that time, the deferred adjudication statute provided in part: “‘dismissal and discharge

under this section may not be deemed a conviction for the purposes of disqualifications or disabilities

imposed by law for conviction of an offense.’” Id. at 595 & n.3 (quoting Tex. Code Crim. Proc.

Ann. art. 42.12, § 5(c) as it was in effect in 1991). The defendant was later charged with aggravated

sexual assault and, by that time, the deferred adjudication statute had been amended to allow

deferred adjudication for certain sexual offenses, including indecency with a child, to be used as a

conviction for the purpose of enhancing a later sexual offense. Id. at 595-96. The court of criminal

appeals first observed that “[t]he resolution of criminal charges will always carry the possibility of

collateral consequences, and as long as those consequences are not statutorily restricted, disabilities

and disqualifications which the defendant might not have anticipated may proceed from the prior

cause.” Id. at 597. But the court held that the change in the deferred adjudication statute constituted

an ex post facto law because the prior deferred adjudication statute contained an express and

complete restriction on the collateral consequences of the offense and, therefore, when that

restriction was removed, defendant’s punishment for his prior offense was increased. Id. at 597-98.

               This case is distinguishable from Scott because article 6701l-1 never contained an

express and complete restriction on collateral consequences such as that found in the deferred

adjudication statute in Scott. See Romo v. State, No. 04-05-00602-CR, 2006 Tex. App. LEXIS

10403, at *4-5 (Tex. App.—San Antonio 2006, no pet.) (mem. op., not designated for publication).



                                                  6
In Romo, the San Antonio court of appeals, addressing the 2001 version of the statute, distinguished

identical circumstances as exist here from those in Scott:


        Unlike Scott, where the deferred adjudication statute expressly limited the future use
        of Scott’s “dismissal and discharge under this section,” former article 6701l-1 merely
        placed restrictions on what prior convictions could be used to enhance an offense at
        that time. It did not place any restrictions on the collateral effects or future use of a
        conviction obtained under the statute. Accordingly, the 2001 amendment to the DWI
        enhancement statute did not increase Romo’s punishment for his prior convictions
        and is not an ex post facto law.


Id. at *5.

                We find this reasoning persuasive. We hold that the ten-year time limitation on the

use of prior DWI convictions found in article 6701l-1 was not an explicit guarantee that those

convictions could not be used in the future, but only a restriction on what prior convictions could be

used to enhance a DWI offense at that time. Therefore, by removing all time limitations on the use

of prior DWI convictions to enhance current DWI charges, the 2005 changes to the DWI

enhancement statute did not increase appellant’s punishment for the prior convictions and is not an

ex post facto law. See id.; see also State v. Pieper, No. 14-06-00368-CR, 2007 Tex. App. LEXIS

3089, at *16 (Tex. App.—Houston [14th Dist.] Apr. 24, 2007, no pet. h.).

                For the same reason, we reject appellant’s legal sufficiency argument that the current

version of section 49.09 does not apply to his case because the prior convictions are elements of the

current offense and, therefore, some of the elements occurred before the effective date of the new

law. In support of this argument, appellant relies on Getts v. State, 155 S.W.3d 153, 155-56

(Tex. Crim. App. 2005), in which the court applied the 2001 version of the statute and found that



                                                   7
the defendant was not guilty of a felony offense because then-section 49.09(e) prohibited the use for

enhancement of a 1984 conviction. Id. at 157. In Getts, the defendant was charged with a DWI

committed in 2002 and the court properly applied the statute then in effect, including the provisions

of 49.09(e) which prohibited the use for enhancement of relevant offenses not occurring within ten

years of the charged offense. Section 49.09(e) was in effect until September 1, 2005, when it was

repealed. See Act of May 21, 2001, 77th Leg., R.S., ch. 638, § 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.

We therefore apply the statute in effect at the time of the commission of the offense, which was the

statute as amended effective September 1, 2005; this current version of the statute does not contain

the remoteness restrictions found in former section 49.09(e).

               Although the instant offense was committed on November 23, 2005, appellant urges

that the old law should apply because the prior offenses are elements of the current offense. Because

some elements of the offense occurred before the effective date of the new law, he urges that the

old law applies. This argument has been previously rejected. See Weaver v. State, 87 S.W.3d 557,

560-61 (Tex. Crim. App. 2002); Rawson v. State, No. 03-03-00336-CR, 2005 Tex. App. LEXIS

7190, at *8 (Tex. App.—Austin 2005, no pet.) (mem. op., not designated for publication). As the

court of criminal appeals in Weaver observed, penal code sections 49.04 and 49.09(b) define the

offense of felony DWI. 87 S.W.3d at 560. Section 49.09(b) makes an offense under 49.04 a third-

degree felony under certain circumstances. Neither of these sections underwent any changes in the

2001 legislation affecting the elements of the offense.         The section about which appellant




                                                 8
argues—section 49.09(e)—does not define an element of the offense. Id. at 561. All of the elements

of the offense were committed after September 1, 2005, and the new version of the statute applies.


                                          CONCLUSION

               Because the 2005 version of the DWI enhancement statute is not an ex post facto law

as applied to appellant and the evidence is legally sufficient, we hold that the trial court did not err

in applying the 2005 version of the statute to appellant allowing enhancement to a felony-level

offense. We overrule appellant’s points of error and affirm the judgment of conviction.




                                               __________________________________________

                                               Jan P. Patterson, Justice

Before Justices Patterson, Pemberton and Waldrop

Affirmed

Filed: May 30, 2007

Do Not Publish




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