Lavigne v. State

803 S.W.2d 302, 1990 Tex. Crim. App. LEXIS 209, 1990 WL 208089

Opinions

OPINION ON APPELLANT’S PETITION FOR DISCRETIONARY REVIEW

PER CURIAM.

The Fourteenth Court of Appeals, in Lavigne v. State, 782 S.W.2d 253 (Tex.App-Houston [14th Dist.] 1989), rejected the claim made on behalf of Rita Lavigne, henceforth appellant, that her 25 year penitentiary sentence was invalid. The basis for appellant’s complaint was that she had been convicted of a second degree felony offense under the Public Health Code, the Texas Controlled Substances Act. The maximum possible punishment, unen-hanced, was 20 years’ confinement in the penitentiary. The trial judge, in assessing appellant’s punishment at 25 years’ confinement in the penitentiary, applied the range of punishment that is set out in V.T.C.A., Penal Code § 12.42(d). This was the minimum possible punishment that could have been assessed under § 12.42(d). The court of appeals held that the trial judge did not improperly assess appellant’s punishment. We granted review in order to make the determination whether the court of appeals correctly decided the issue.

In Childress v. State, 784 S.W.2d 361 (Tex.Cr.App.1990), this Court recently held that upon conviction for the non-Penal Code felony offense of failure to stop and render aid, which is an offense prescribed in Art. 6701d, § 38(a), V.A.C.S., punishment may be enhanced pursuant to § 12.42(d) of the Penal Code with two felony Penal Code convictions.

Finding that the holding in Childress controls the issue in this cause, we hold that the court of appeals correctly decided the issue. The judgment of the court of appeals is affirmed.