Texas Department of Criminal Justice v. Edward McElyea ( 2007 )

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-05-00766-CR
David Bruce Townsend, Appellant
v.
The State of Texas, Appellee
FROM THE DISTRICT COURT OF TRAVIS COUNTY, 147TH JUDICIAL DISTRICT
NO. D-1-DC-2005904087, HONORABLE WILFORD FLOWERS, JUDGE PRESIDING
MEMORANDUM OPINION
Appellant David Bruce Townsend was charged with committing the offense of
driving while intoxicated on January 26, 2004. The indictment alleged two prior convictions for
offenses relating to the operation of a motor vehicle while intoxicated from August 1993 and
July 1991. Appellant filed a motion to quash the indictment, arguing that allowing the prior
convictions to be used for enhancement under subsection 49.09(e) of the penal code, which was
amended in 2001, would violate the ex post facto provisions of the state and federal constitutions.
He argued that the use of the prior convictions in this case would “remove the statutory restriction
placed on the enhancement use of the [prior convictions] when the underlying offenses were
committed” and would “retroactively increase[] the punishment for those offenses in violation of the
state and federal ex post facto clauses.” The trial court denied appellant’s motion to quash, and
appellant pled guilty to the charged offense. He appeals, complaining that the trial court erred in
denying his motion to quash.
This Court recently addressed and rejected this same argument in Saucedo v. State,
No. 03-06-00305-CR, 2007 Tex. App. LEXIS 4292, at *7-11 (Tex. App.—Austin May 30, 2007,
no pet. h.) (mem. op., not designated for publication), following the reasoning set out by our sister
court in its unpublished opinion in Romo v. State, No. 04-05-00602-CR, 2006 Tex. App. LEXIS
10403, at *4-5 (Tex. App.—San Antonio Dec. 6, 2006, no pet.) (mem. op., not designated for
publication). 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.) (following Romo). We again reject this
argument for the reasons stated in Saucedo, Romo, and Pieper. We affirm the
judgment of conviction.
___________________________________________
David Puryear, Justice
Before Chief Justice Law, Justices Puryear and Waldrop
Affirmed
Filed: July 26, 2007
Do Not Publish
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