Brian James Matew v. the State of Texas

Opinion

NUMBER 13-20-00062-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI – EDINBURG

BRIAN JAMES MATEW, Appellant, v.

THE STATE OF TEXAS, Appellee.

On appeal from the 218th District Court of Atascosa County, Texas.

ORDER

Before Justices Hinojosa, Tijerina, and Silva Order Per Curiam

This cause is currently before the Court on appellant’s motion for rehearing and

motion for rehearing en banc. Appellant’s motions urge reconsideration of our opinion

handed down on February 3, 2022.

In Appellant’s motions for rehearing, he contends this Court utilized the wrong

standard of review to analyze an evidentiary issue in section IV of our opinion. We disagree. In his brief, appellant posited his issue as whether the Judicial Clemency statute

“prohibits the court from receiving or admitting into evidence” Matew’s felony predicate

convictions. See TEX. CODE CRIM. PROC. ANN. art. 42A.701. This is an evidentiary matter,

and “[w]hen reviewing a trial court’s ruling on the admission of evidence, an appellate

court applies an abuse of discretion standard of review.” Casey v. State, 215 S.W.3d 870,

879 (Tex. Crim. App. 2007) (citing Montgomery v. State, 810 S.W.2d 372, 391 (Tex.

Crim. App. 1991) (op. on reh’g)).

However, assuming without agreeing that we should have applied a de novo

review of the issue, our disposition of the matter would remain the same. See State v.

Salinas, 982 S.W.2d 9, 10 n.1 (Tex. App.—Houston [1st Dist.] 1998, pet. ref’d) (noting in

one instance when a court “actually conducted a de novo review with an unnecessary

overlay of the abuse of the discretion standard” that the “court’s reasoning was unaffected

by the error.”). When conducting a de novo review, we “ascertain[] and giv[e] effect to the

legislature’s intent as expressed by the plain and common meaning of the statute’s

words.” Adetomiwa v. State, 421 S.W.3d 922, 926 (Tex. App.—Fort Worth 2014, no pet.).

Here, the legislature included the predicate felony as a basic element in the felon in

possession statutory offenses. See TEX. PENAL CODE ANN. §§ 46.04(a)(1), 46.041(b).

Analyzing this issue de novo, we conclude the Texas legislature intended for evidence of

the predicate felony to be admitted into evidence to prove these offenses. See id. As we

indicated in our memorandum opinion, Texas case law overwhelmingly supports this

rationale. See Matew v. State, No. 13-20-00062-CR, ___ S.W.3d ___, ___, 2022 WL

321120, at *6 (Tex. App.—Corpus Christi–Edinburg Feb. 3, 2022, no pet.); Ex parte

2 Jimenez, 361 S.W.3d 679, 680 (Tex. Crim. App. 2012) (“The State proved Applicant was

a felon by introducing proof of Applicant's prior felony conviction for rape of a

child”); Fennell v. State, 455 S.W.2d 248, 249 (Tex. Crim. App. 1970) (concluding prior

felony conviction for former unlawful possession of a weapon statute “was an essential

element of the offense charged in the indictment” and must be proven at the guilt phase

of trial); Cuellar v. State, 40 S.W.3d 724, 727–28 (Tex. App.—San Antonio 2001) (“To

prosecute a convicted felon for violation of Section 46.04, the State must prove two

elements: (1) the defendant was convicted of a felony; and (2) the defendant possessed

a firearm away from his residence.”). Accordingly, the trial court did not err when it

admitted Matew’s prior convictions into evidence.

The Court, having fully examined and considered appellant’s motion for rehearing

and motion for rehearing en banc, appellee’s response, and the relevant case law, is of

the opinion that appellant’s motions should be denied.

Do not publish. TEX. R. APP. P. 47.2(b).

Delivered and filed on the 7th day of October, 2022.