Paul Greg Crow v. The State of Texas--Appeal from 27th District Court of Bell County

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State: Texas

Court: Texas Northern District Court

Docket No: 03-03-00266-CR

Case Date: 11/20/2003

Plaintiff: JEFFREY KEIRN

Defendant: THE STATE OF TEXAS--Appeal from 105th District Court of Nueces County

Preview:NO. 07-07-0067-CR IN THE COURT OF APPEALS FOR THE SEVENTH DISTRICT OF TEXAS AT AMARILLO PANEL A JANUARY 8, 2008 ______________________________ TERRELL ZEBADHAL THOMAS, APPELLANT V. THE STATE OF TEXAS, APPELLEE _________________________________ FROM THE 390TH DISTRICT COURT OF TRAVIS COUNTY; NO. D-1-DC-06-200790; HONORABLE JULIE H. KOCUREK, JUDGE _______________________________

Before CAMPBELL and HANCOCK and PIRTLE, JJ.

MEMORANDUM OPINION

Appellant, Terrell Zebadhal Thomas, appeals his conviction for the offense of unlawful possession of a firearm by a felon, enhanced by two prior felony convictions, and sentence to 20 years confinement in the Institutional Division of the Texas Department of Criminal Justice. On appeal, appellant raises the single issue that the same prior

conviction was used both as an element of the offense and as an enhancement of punishment. We affirm.

Background

The indictment against appellant alleges that he possessed a firearm before the fifth anniversary of his release from confinement in prison for the felony offense of assault of a public servant. The assault of a public servant conviction was also identified as a prior felony conviction in the first paragraph of the enhancement portion of the indictment. The indictment further alleges a second prior felony conviction as an enhancement of the indictment.

Following a trial on the merits, a jury convicted the appellant of the primary offense of unlawful possession of a firearm by a felon. Appellant went to the trial court for punishment and entered a plea of "Not True" to both enhancement paragraphs. After hearing the evidence, the trial court found that both allegations were true and sentenced appellant to 20 years confinement.

Analysis

Appellant correctly points out that the same prior conviction may not be used to prove both an element of an offense and an enhancement allegation contained in the same indictment. See Ramirez v. State, 527 S.W.2d 542, 544 (Tex.Crim.App. 1975); Garcia v. State, 169 Tex.Crim. 487, 335 S.W.2d 381, 382 (1960). This became known as the "Garcia-Ramirez" rule and was subsequently reaffirmed after the passage of the Texas Penal Code. See Wisdom v. State, 708 S.W.2d 840, 845 (Tex.Crim.App. 1986).

2

However, before we can analyze the effect of any error committed by the trial court, the issue of preservation of error must be examined. To preserve an issue for appellate review, the complaining party must make a timely objection to the trial court that properly states the specific grounds for the desired ruling, if they are not apparent from the context of the request, objection, or motion. TEX . R. APP. P. 33.1(a)(1); Butler v. State, 872 S.W.2d 227, 236 (Tex.Crim.App. 1994); Adams v. State, 179 S.W.3d 161, 164 (Tex.App.

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