William Lawrence Taylor A/K/A Eddie W. Ogilive v. State

MEMORANDUM OPINION No. 04-02-00528-CR William Lawrence TAYLOR a/k/a Eddie G. Ogilvee, Appellant v. STATE of Texas, Appellee From the 290th Judicial District Court, Bexar County, Texas Trial Court No. 2001-CR-4574 Honorable Sharon MacRae, Judge Presiding

Opinion by: Sarah B. Duncan, Justice

Sitting: Sarah B. Duncan, Justice

Karen Angelini, Justice

Sandee Bryan Marion, Justice

Delivered and Filed: April 23, 2003

AFFIRMED

William Taylor was found guilty of misdemeanor theft enhanced to a state jail felony by two previous misdemeanor theft convictions, enhanced to habitual by two previous felony convictions. He was sentenced to three years imprisonment and fined one thousand dollars. He appeals, alleging the punishment exceeds the statutory maximum for a state jail felony under section 12.42 of the Texas Penal Code. We disagree and affirm the trial court's judgment.

Taylor was charged with the theft of property valued under $1500, a misdemeanor offense. See Tex. Pen. Code Ann. § 31.03(e)(1)-(3) (Vernon 2003). However, the indictment alleged that Taylor had two previous theft convictions, thus elevating the charged theft to a state jail felony. Id. at § 31.03(e)(4)(D). The indictment further alleged that, before the commission of the charged offense, Taylor had been convicted of the felony of robbery by assault; and, before the commission of the charged offense and after the conviction for robbery by assault had become final, Taylor was convicted of the felony of possession of cocaine under twenty-eight grams. Because of these previous felony convictions, Taylor was subject to punishment for a second degree felony. Id. § 12.42(a)(2). Taylor's punishment of three years imprisonment falls within the range for a second degree felony. Id. § 12.33(a).

In support of his argument, Taylor cites Brown v. State 14 S.W.3d 832, 833 (Tex. App.-Austin 2000, pet. ref'd), for the proposition that "[t]he punishment for a third offense theft under Sec. 31.03(e)(4)(D) cannot be enhanced beyond a state jail felony pursuant to Sec. 12.42(a) Tex. Pen. Code by proof of additional felony theft convictions." However, the previous felonies used to enhance Brown's conviction for theft of property under $1500 were themselves convictions for theft; therefore, Brown's theft conviction remained a state jail felony under section 31.03(e)(4)(D). See id. at 832. Taylor's previous felony convictions were not for theft. See Rawlings v. State, 602 S.W.2d 268, 269-271 (Tex. Crim. App. [Panel Op.] 1980).

Taylor's reliance on Campbell v. State, 49 S.W.3d 874, 878 (Tex. Crim. App. 2001), is also misplaced. Previous state jail felonies were not used to enhance a state jail felony. Likewise inapposite is Sinegal v. State, 789 S.W.2d 383 (Tex. App.-Houston [1st Dist.] 1990, pet. ref'd), which addresses the use of remote prior convictions for impeachment purposes. See id. at 387. Previous convictions, however remote, can be used for enhancement purposes. See Joles v. State, 563 S.W.2d 619, 621-22 (Tex. Crim. App. 1978); Hicks v. State, 545 S.W.2d 805, 810 (Tex. Crim. App. 1977).

The trial court's judgment is affirmed.

Sarah B. Duncan, Justice

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