Sherman, James Charles v. State

Opinion

Affirmed and Memorandum Opinion filed February 24, 2004

Affirmed and Memorandum Opinion filed February 24, 2004.

In The

Fourteenth Court of Appeals

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NO. 14-03-00505-CR

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JAMES CHARLES SHERMAN, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 262nd District Court

Harris County, Texas

Trial Court Cause No. 946,509

M E M O R A N D U M   O P I N I O N

Appellant James Charles Sherman appeals from the trial court=s denial of his motion to quash the second enhancement paragraph in the indictment.  Following the denial of his motion, appellant waived a jury and entered a plea of guilty to the charged felony offense of possession of a firearm by a felon.  He also entered a plea of true to both of the enhancement paragraphs in the indictment, and punishment was assessed at 25 years= confinement.  Because all dispositive issues are clearly settled in law, we issue this memorandum opinion. See Tex. R. App. P. 47.4.  We affirm.

In his sole issue presented for review, appellant argues the trial court erred in denying his motion to quash the second enhancement paragraph of the indictment, which listed his February 14, 1992 conviction for possession of a controlled substance.  He contends that because this offense is now classified as a state jail felony,^[1] it cannot be used for enhancement purposes under Section 12.42(d) of the Texas Penal Code.^[2]  We disagree.

Our sister court has previously recognized that the Texas Health and Safety Code was amended in 1993.  SeePerry v. State, 902 S.W.2d 162, 163 (Tex. App.CHouston [1st Dist.] 1995, pet. ref=d).  One result of this legislation was the reclassification of certain types of offenses, including possession of certain amounts of listed controlled substances.  Id.  Consequently, Section 481.115(b) now provides that possession of less than one gram of a listed substance is a state jail felony rather than a second-degree felony.  Tex. Health & Safety Code Ann. ' 481.115(b) (Vernon 2003); see also infra note 4.  However, this amendment applies only to offenses committed on or after September 1, 1994, and the legislature specifically provided that Aan offense committed before the effective date of this article is covered by the law in effect when the offense was committed.@^[3]

It is undisputed that appellant committed the offense listed in the second enhancement paragraph on February 13, 1992.  At that time, the offense was classified as a second-degree felony.^[4]  Because the legislature amended the classification of the offense committed by appellant subject to the provision that the amendment would not alter the classification of such offenses occurring prior to September 1, 1994, appellant=s conviction remains a felony and can be used for enhancement purposes.  The trial court therefore did not err in denying his motion to quash.  Accordingly, appellant=s sole issue presented for review is overruled.

The judgment is affirmed.

/s/      Adele Hedges

Chief Justice

Judgment rendered and Memorandum Opinion filed February 24, 2004.

Panel consists of Chief Justice Hedges and Justices Frost and Guzman.

Do Not Publish C Tex. R. App. P. 47.2(b).

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^[1]  We will assume for purposes of this appeal that appellant was arrested with less than one gram of cocaine in his possession, as he claims in his affidavit.

^[2]  That section provides: AIf it is shown on the trial of a felony offense other than a state jail felony punishable under Section 12.35(a) that the defendant has previously been finally convicted of two felony offenses, and the second previous felony conviction is for an offense that occurred subsequent to the previous conviction having become final, on conviction he shall be punished by imprisonment . . . for life, or for any term of not more than 99 years or less than 25 years.@ Tex. Pen. Code Ann. ' 12.42(d) (Vernon Supp. 2003).

^[3]  Act of May 29, 1993, 73rd Leg., R.S., ch. 900, '' 2.08, 2.09, 1993 Tex. Gen. Laws 3586, 3714.

^[4]  Act of May 16, 1989, 71st Leg., R.S., ch. 678, ' 1, 1989 Tex. Gen. Laws 2230, 2936-37, amended by Act of May 29, 1993, 73rd Leg., R.S., ch. 900, ' 2.02, 1993 Tex. Gen. Laws 3586, 3706.