Vasquez v. State, No. 44275

• Court: Court of Appeals of Texas. Court of Criminal Appeals of Texas
• Writing for the Court: ROBERTS
• Citation: 477 S.W.2d 629
• Docket Number: No. 44275
• Decision Date: 16 February 1972
• Parties: Apolonio Ernesto VASQUEZ, Appellant, v. The STATE of Texas, Appellee.

Page 629

477 S.W.2d 629 Apolonio Ernesto VASQUEZ, Appellant,
v.
The STATE of Texas, Appellee. No. 44275. Court of Criminal Appeals of Texas. Feb. 16, 1972.
Rehearing Denied April 5, 1972.

James P. Finstrom, Dallas, for appellant.

Henry Wade, Dist. Atty., and James Moss, Asst. Dist. Atty., Dallas, and Jim D. Vollers, State's Atty., and Robert Huttash, Asst. State's Atty., Austin, for the State.

OPINION

ROBERTS, Judge.

This is an appeal from a conviction for possession of marihuana, second offense. Appellant plead guilty before the court on January 30, 1970, and his punishment was assessed by the court at ten years' confinement.

Appellant contends in his first ground of error that the trial court erred by sentencing him in accordance with Article 725b, § 23(1), Vernon's Ann.P.C., as amended, without first making a determination that the prior offense alleged in the indictment for enhancement occurred after the effective date of the amendment which provided that the minimum punishment for a second conviction should be ten years' confinement. (Acts 1955, 54th Leg., p. 903, ch. 354, § 1.) (Re-enacted in 1969 as Article 725b, § 23(a) (Acts 1969, 61st Leg.,

Page 632

p. 703, ch. 242, § 1)). He contends that if the prior offense occurred before the effective date of the 1955 amendment, then his sentence as a second offender would be invalid because the enhancement part of the statute would be an ex post facto law as applied to him and therefore unconstitutional as a violation of Art. I, § 10, U.S. Constitution and Art. I, § 16, Texas Constitution, Vernon's Ann.St.

It is well settled that a conviction which occurred prior to the enactment of a statute providing for increased punishment upon a subsequent conviction may be used for enhancement purposes under that statute, and that such usage is not unconstitutional as being an ex post facto application of the statute. Gryger v. Burke, 334 U.S. 728, 68 S.Ct. 1256, 92 L.Ed. 1683 (1948); Graham v. West Virginia, 224 U.S. 616, 32 S.Ct. 583, 56 L.Ed. 917 (1912); Oliver v. United States, 290 F.2d 255 (8th Cir. 1961) cert. denied, 368 U.S. 850, 82 S.Ct. 83, 7 L.Ed.2d 48 (1961); United States v. Sierra, 297 F.2d 531 (2nd Cir. 1961) cert. denied, 369 U.S. 853, 82 S.Ct. 939, 8 L.Ed.2d 11 (1961); Wey Him Fong v. United States, 287 F.2d 525 (9th Cir. 1961) cert. denied, 366 U.S. 971, 81 S.Ct. 1937, 6 L.Ed.2d 1261 (1961); Pettway v. United States, 216 F.2d 106 (6th Cir. 1954) cert. denied, 355 U.S. 918, 78 S.Ct. 348, 2 L.Ed.2d 277 (1958); Beland v. United States, 128 F.2d 795 (5th Cir. 1942) cert. denied, 317 U.S. 676, 63 S.Ct. 157, 87 L.Ed. 543 (1942); Gomez v. State, 162 Tex.Cr.R. 30, 280 S.W.2d 278 (1955). See also Salazar v. State, 423 S.W.2d 297 (Tex.Cr.App.1968).

In Hill v. State, 158 Tex.Cr.R. 313, 256 S.W.2d 93 (1953) (opinion by Morrison, J.), this Court held that an amendment to a statute which provided for increased penalties upon a second conviction did not increase the punishment for the offense and therefore it could not be an ex post facto law. However, in dictum the court suggested that if the statute had materially increased the punishment, then the utilization of a conviction which occurred before the amendment took effect, for enhancement purposes, would be an ex post facto application. In Gomez v. State, supra, the Court held expressly to the contrary. Judge Morrison, the author of the opinion in Hill v. State, in a concurring opinion in Gomez v. State, supra, at 282 agreed with the holding of the Court, citing numerous authorities from other jurisdictions in support thereof and concluded that the rule as announced by the Court in Gomez was the sounder rule.

Any suggestion to the contrary in Hill v. State, supra, is expressly overruled. The holding in Gomez v. State, 162 Tex.Cr.R. 30, 280 S.W.2d 278 (1955) is controlling and will be followed by this Court.

The reason that a conviction which occurred before the statute was enacted may be used for enhancement is that the statute providing for a greater penalty upon a subsequent conviction does not seek to punish the offender for the original criminal act a second time, but rather, 'The repetition of criminal conduct aggravates . . . guilt and justifies heavier penalties . . ..' Graham v. West Virginia, 224 U.S. 616, 623, 32 S.Ct. 583, 585, 56 L.Ed. 917 (1912).

Since the prior conviction could have been used for enhancement purposes even if the offense had occurred prior to the 1955 amendment, the trial court did not err by not first making a determination that the prior offense occurred after 1955. Appellant's first ground of error is overruled.

Appellant contends in his second ground of error that the trial court failed to admonish him properly as to the consequences of his plea before accepting it.

The record reflects that the trial court erroneously told the appellant, before accepting the plea, that the punishment for possession of marihuana, second offense, 'shall be a term of years in the Texas Department of Corrections for a period of not less than ten years.' The appellant answered that he understood. The court then accepted the plea. Thereafter, the oral stipulations were read into the record.

Page 633

Before all the stipulations were read, the court interrupted the reading and the following transpired:

'THE COURT: Let me make this correction in the record.

The punishment for the offense of which he is charged is life imprisonment or any term of years not less than ten, and let me ask the Defendant if you understand that and would your answers be the same to my questions that I asked you earlier?

'THE DEFENDANT: Yes, sir.'

Appellant contends that this later correction of the erroneous admonishment was not sufficient to satisfy the requirements of Art. 26.13, Vernon's Ann.C.C.P.

The failure to admonish a defendant who enters a plea of guilty or nolo contendere as to the consequences of the plea is reversible error. Art. 26.13, V.A.C.C.P.; Loudd v. State, 474 S.W.2d 200, (Tex.Cr.App., delivered December 21, 1971); Ex parte Battenfield, 466 S.W.2d 569 (Tex.Cr.App.1971); Crawford v. State, 466 S.W.2d 319 (Tex.Cr.App.1971); Miller v. State, 424 S.W.2d 430 (Tex.Cr.App.1968); Williams v. State, 415 S.W.2d 917 (Tex.Cr.App.1967); Alexander v. State, 163 Tex.Cr.R. 53, 288 S.W.2d 779 (1956).

The case at bar, however, is not a case in which...