Armando G. Constante v. State ( 2008 )

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MEMORANDUM OPINION
No. 04-07-00455-CR
Armando G. CONSTANTE,
Appellant
v.
The STATE of Texas,
Appellee
From 187th Judicial District Court, Bexar County, Texas
Trial Court No. 2006-CR-0505
Honorable Raymond Angelini, Judge Presiding
Opinion by: Rebecca Simmons, Justice
Sitting: Alma L. López, Chief Justice
Phylis J. Speedlin, Justice
Rebecca Simmons, Justice
Delivered and Filed: July 23, 2008
AFFIRMED
Appellant Armando G. Constante was charged with the felony offense of driving while
intoxicated, enhanced with six prior driving while intoxicated convictions. After his motion to
quash the indictment and his motion to dismiss the enhancement allegation were denied by the trial
court, Constante entered a plea of no contest. Pursuant to a plea bargain, the trial court sentenced
Constante to five years confinement in the Institutional Division of the Texas Department of
Criminal Justice. Because the trial court properly applied Texas Penal Code section 49.09(e), in
effect at the time of Constante’s arrest, we affirm the judgment of the trial court.
04-07-00455-CR
FACTUAL BACKGROUND
Constante was arrested for driving while intoxicated (“DWI”) on August 30, 2005. In its
indictment, the State alleged six prior convictions for purposes of elevating Constante’s offense
from a misdemeanor to a felony and reserved a June 4, 1988 felony conviction to enhance
Constante’s punishment as a habitual offender for punishment purposes. Trial counsel subsequently
filed a “Motion to Quash and Exception to Substance of Indictment and in the Alternative, Motion
to Dismiss Enhancement Allegation.” Constante argued that the previous convictions could not be
used for enhancement because Texas Penal Code section 49.09(e), in effect at the time of the
offense, prohibited the same. Constante’s sole issue on appeal is that the trial court lacked
jurisdiction to hear the case because the prior convictions were too remote for felony enhancement
purposes.
STANDARD OF REVIEW
Constante’s assertion that the trial court misapplied Texas Penal Code section 49.09 is a
matter of statutory construction, which is a legal question that we review de novo. Ceballos v. State,
246 S.W.3d 369, 371 (Tex. App.—Austin 2008, pet. ref’d); Jones v. State, 175 S.W.3d 927, 930
(Tex. App.—Dallas 2005, no pet.). In construing a statute, an appellate court’s primary objective
is to ascertain and give effect to the Legislature’s intent. Boykin v. State, 818 S.W.2d 782, 785
(Tex. Crim. App. 1991). In doing so, we look first to the plain and common meaning of the
language of the statute, “because the text is the only definitive evidence of what the legislators . . .
had in mind.” Id. (emphasis in original); TEX. GOV’T CODE ANN. § 311.011(a) (Vernon 2005)
(“Words and phrases shall be read in context and construed according to the rules of grammar and
common usage.”).
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04-07-00455-CR
TEXAS PENAL CODE ANN. § 49.09(e)
The Court of Criminal Appeals opinion in Getts v. State, 155 S.W.3d 153, 155-56
(Tex. Crim. App. 2005), is dispositive of this issue. Getts was charged with a felony DWI based on
two prior DWI convictions from 1997 and 1984. On appeal, Getts argued the prior convictions were
too remote in time to elevate the offense to a third degree felony. Id. at 154. The Getts Court
analyzed section 49.09(e) which prior to its September 1, 2005 revision provided:
Except as provided by Subsection (f), a conviction may not be used for
purposes of enhancement under this section if:
(1) the conviction was a final conviction under Subsection (d);
(2) the offense for which the person is being tried was committed more than
10 years after the latest of:
(A) the date on which the judgment was entered for the previous
conviction;
(B) the date on which the person was discharged from any period of
community supervision on which the person was placed for the
previous conviction;
(C) the date on which the person successfully completed any period
of parole on which the person was released after serving a
portion of the term to which the person was sentenced for the
previous conviction; or
(D) the date on which the person completed serving any term for
which the person was confined or imprisoned for the previous
conviction; . . . .
Id. at 155. Act of Sept. 1, 2003, 78th Leg., R.S., ch. 1275, § 2(117), 2003 Tex. Gen. Laws 4147,
4147, repealed by Act of Sept. 1, 2005, 79th Leg., R.S., ch. 996, § 3 (effective September 1, 2005).
First and foremost, the Getts Court explained that because subsection (e) states “a conviction
may not be used,” the subsection applies to prior convictions individually, and not collectively.
Getts, 155 S.W.3d at 155-56. Thus, an appellate court must consider one prior conviction at a time.
Id.
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Accordingly, we look to the allegations set forth in the State’s indictment. Under Getts, we
first consider whether the current 2005 offense was more than ten years after the 1987 DWI alleged
in Constante’s indictment. Because we answer in the affirmative, we calculate the time period
between the 1987 final conviction and the current allegation. Since this time period is greater than
ten years, Constante must have been convicted of a DWI offense within ten years of the 1987
conviction. On April 7, 1993, in cause number 91-CR-4362, Constante was convicted of felony
DWI and sentenced to four years confinement in the Institutional Division of the Texas Department
of Criminal Justice. Thus, because all three conditions are met:
(1) The 1987 conviction is a final conviction;
(2) The 2005 offense was committed more than ten years after the 1987 offense; and
(3) Constante was convicted of another alcohol related offense within ten years of the 1987
conviction, that being the 1993 conviction;
the 1987 and the 1993 convictions are available for enhancement purposes. Getts, 155 S.W.3d at
156-57.
Constante urges that this leads to an absurd result and we should decline to follow Getts. We
must, however, make note of the Court of Criminal Appeals acknowledgment that, under its
interpretation, “a 100-year-old conviction could be used if the defendant also had a 90-year-old
conviction, but a 12-year-old conviction cannot be used if the other conviction was just 1-year-old.”
Id. at 157. Importantly, the Court explains that there is nothing inherently absurd in a statute
providing that certain prior convictions are available for enhancement purposes but not others. Id.
We are bound by the Court of Criminal Appeals’ interpretation of section 49.09(e) as set forth in
Getts. See Act of Sept. 1, 2003, 78th Leg., R.S., ch. 1275, § 2(117), 2003 Tex. Gen. Laws 4147,
4147, repealed by Act of Sept. 1, 2005, 79th Leg., R.S., ch. 996, § 3 (effective September 1, 2005);
Getts, 155 S.W.3d at 156-57.
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Because the trial court properly applied section 49.09(e), as it was in effect at the time of
Constante’s arrest, we affirm the judgment of the trial court.
Rebecca Simmons, Justice
DO NOT PUBLISH
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