### TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03
- 21
- 00368
- CR

Rasheen Smith , Appellant

v. The State of Texas , Appellee

FROM THE 424TH DISTRICT COURT OF BLANCO COUNTY NO. CR01732, THE HONORABLE EVAN C. STUBBS , JUDGE PRESIDING

M E M O R A N D U M O P I N I O N
Appellant Rasheen Smith entered open guilty pleas to one count of en gaging in organized criminal ac tivity (Count I) and two counts of forg ing financial instruments (Counts II and III )

. See Tex. Penal Code §§ 32. 21(d), 71.02(a). Following a punishment hearing , the trial court sentenced him to 17 years ’ confinement on Count I and two years ’ confinement on Counts II and III , with the senten ces to run concurrently. 1 See i d. § 3.03. In a single issue on appeal, Smith contends that h i s sentence was illegally enhanced by a prior out -of- state conviction that did not qualify as an enhancing conviction as a matter of law

. We will affirm the trial court ’ s judgment of conviction.

1 On the face of the judgment for Count I, t he trial court also assessed a $3,000 fine and ordered Smith to pay $2,209.11 in restitution.2 BACKGROUND Smith was charged in a 1 3

- count indictment wit h one count of engaging in organized crim inal activity , a third

- degree felon y , a n d 1 2 counts of forging financial instruments. In addition, t he State filed notice of its intent to prove four prior Georgia felony convictions for enhancement purposes . Duri n g t he plea heari ng, Smith pleaded guilty to Counts I through III.
He also pleaded t rue to the first enhancement paragraph

— all eging a 1997 Georgia conviction for the no n - sta te ja il felony o ffense of theft by receiving stolen property

— and to the remaining
10 forgery counts

. In ex change for his pleas , the State agreed to dismiss the remaining counts and be barred from any further prosec ution conce rning them.
F ollowing a punis hment hearing at which Smith, his wife , and an employee of his
nonpr o fit testifi ed , the trial court found S m ith guilty of Counts I throug h III a n d found th e allegations in the en hancement paragraph to be t rue. The court as sessed his punishmen t at 17 years ’ confinement , a $3,000 f ine, and $2,20 9.11 in restitution for Count I ; two year s ’ confinement for Count II ; and two years ’ confinement for Count III and ordered that the
sentences run concurre ntly. This appeal followed.

DISCUSSION In his o nly is sue , Smith contends that his sentence was illegally enhanced because his 1 99 7 Georgi a c onv iction for theft by receiving stolen property does not qualify as an enhancing conviction under s ubs ections 12.41 (1) and 12.42 (a) of the Texas Penal Code. See id. §§ 12.41 , . 42. Consequentl y, he asserts that h is a ssessed p unishment o f 17 ye ars ’ conf in eme nt for Count I exceeded the statutorily permissible range for a third

- degree felony and was therefore3 unlawful

. Se e id. § 12. 3 4 (a ) ( providing that individual a djudged guilty of third

- degree fel ony

m ay not be punished by imprisonment for term of more th an 10 years).

“ An out

- of

- state prior final felony conviction can be used to enhance a sentence imposed in Texas. ” Ex parte Pue , 552 S.W.3d 226, 231 (Tex. Crim. A pp. 2018)

. The Legislature enacted section 12.41 of the Penal Code “to deal speci fically wit h th e classification for enhancement purposes of convictions obtained outside the Penal Code.” Ex parte Blume , 618 S.W.2d 373, 376 (Tex. Crim. App. 1981). S ubs ec t ion 12.41 (1) provides that a non - Penal Code conviction , such as an ou t

- of

- state c onviction , is c lassified as a third

- degree felo ny if imprisonment in a penitentiary is “affixed to the offense a s a possible p unishment

. ” Tex. Penal Code § 12.41 ; see Robles v. State , 141 S.W.3d 250, 252 (Tex. App.

— Austin 2004, pet. ref’d) ( observing that stat ute “ h as b een held to apply to prior convictions obtained under Texas statutes other than the current penal code, as well as to previous convictions obtained outside of Texas under the laws of other states and t he federal government ”)

. Such a conviction “ may be use d for enha ncement of punishment pu r suant to [section] 12. 42, ” Trotti v. State , 698 S.W.2d 245, 246 (Tex. App.

— Austin 1985, pet. ref’d) , which provides in relevant p art :
Except as provided by Subsection (c)(2), if it is shown on the trial of a fel ony of the third degree that the defendant has previously been finally convicted of a felony other than a state jail felony punishable under Section 12.35(a), on conviction t he defendant shall be punished for a felony of the second degree.

Tex. Penal Code § 12.4 2(a)

. The parties disagree about the appli cable standard of review. “ Whether an
out

- of

- state offense constitutes a felony for purposes of enhancemen t is a question of law that we review de novo

. ” Newsome v. State , No. 09

- 17

- 00122

- CR, 2018 WL 1 097644, at *2 ( Tex.4 App.

— Beaumont Feb. 28, 2018, no pet.) (mem. op., not designated for publication) 2 (citing State v. Richardson , 439 S.W.3d 403 (Tex. App.

— Fort Worth 2014, pet. ref’d); Lucio v. State , 128 S.W.3d 262, 263

– 64 (Tex. App.

— Houston [1st Dist.] 2003, no p et.) ) ; Jordan v. State , No. 01

- 14

- 00721

- CR, 2015 WL 67684 97, at *7 (Tex. App.

— Houston [1 st Dist.] Nov. 5, 2015 ,

n o pet. ) (mem. op. , not d e signated for publication ) (citing S mith v. State , 309 S.W.3d 10, 13

– 14 (Tex. Crim. App. 2010) )

. B ut see Thom as v. Sta te , 482 S.W.3d 235, 246 (Tex. App.

— Eastland
2015 , no pet. ) ( conclud ing that “ [t] he trial court did not abuse its disc retion when it permitted the jury to consider [defendant] ’ s prior Louisiana felony convictions ” where defendant contended that State had fa iled to prove that co nvictions were not s t a te jail f elonies for enh a ncement p urpose s )

. T he State’s contrary assertion that we should employ an abuse

- of

- discretion standard results from its mis construing Smith’s claim as a challenge to the sufficiency of the

ev idence supporting the trial court’s f inding that his enhancement alleg ation was true.
See Mosley v. State , No. 05

- 09

- 01315

- CR, 2010 WL 5375968, at *5 n.2 (Tex. App.

— Dallas Dec. 29, 2010, pet. ref’d) (mem. op., not designated fo r publication) (“When a defe ndant pleads ‘true’ to an enhancement paragraph, he cannot complain on appeal that the evidence is insufficient to support the enhancement. Here, however, appellant challenges the legal classification of his prior offense.” (i nternal citation omitte d) ) ; A ndika v. State ,

2 Although we are not bound by our sister co urts ’ de termination of the proper s tandard of revi ew , we fi nd t heir imp l icit reasoning persuasive. Whether a prior conviction is a felony is a question of law, Andika v. State , No. 10

- 04

- 00278

- CR, 2005 WL 1484050, at *4 (Tex. App.

— Waco June 22, 2005, no p et.) (mem. op., not designated for publication) , a nd the tr ial court is not in a better positi on to decide the issue , which does not involve matters of witness demeanor or credibility , see State v. Moff , 154 S.W.3d 599, 601 (Tex. Crim. App. 2004) ( “ Wh en th e re solution of a question of law does not tu rn on an evalu atio n of the credibility and demeanor of a witness, then the trial court is not in a better position to make the determination, so appellate courts should conduct a de novo review of the issue

. ” ).5 No. 10

- 04

- 00278

- CR , 2005 WL 1484 050, at *4 (Tex. App.

— Waco June 22, 2005, no pet.) (mem. op., not designated for publication) (“Whether a prior conviction is a felony is a question of law; it is not subject to a ‘legal sufficiency’ re view. ” ); see also Ex parte Rich , 194 S.W.3d 508 , 515 ( Tex. Crim. App. 2006) ( “ Applicant ’ s si tuation should be addressed as a claim of illegal sentence because the mischaracterization of his prior offense affected his sentence , rather than the trial court ’ s dete r mination of guilt

. ” ); Thomas v. State , No. 03

- 19

- 004 71

- CR,
2021 WL 2834716, at *3 (Tex. App.

— Austin July 8, 2021, pet. ref’d) (mem. op., not designated for publication) (treating as illegal

- sentence complaint contention that “prior convictions in
Ari zona a nd California were the equivalent of a state

- jai l fe lony or misdemeanor in Texas and thus, could not have been used to enhance [ defe n d ant ’s] sentence” )

. In determining the classification of a prior conviction under s ect ion 12.41, an appellate court m ay ta k e judicial notice of the law s of another state , ev e n where th e text of those laws d o es not appear in the trial r ec ord. See Tex. R. Evid. 202 ( allowing court , “at any stage of the proceeding, ” to “ take judicial notice o n its own ” of another state ’ s p ublic statutes ); Cain

v. State , 721 S.W.2d 493, 49 4 (T ex. App.

— Houston [1 st Dist.] 1986 , no pet. ) ( “ A Texas appellate court may take judicial notice of the laws of another state. ”); Tate v. State , 120 S.W.3d 886 , 889 (Tex . App.

— Fort Worth 2003 , no pe t. ) ( “ We ma y take judi cial notice of another state ’ s law for the firs t time on appeal. ” (citing Tompkins v. State , 774 S.W.2d 195, 215 (Tex. Crim. App. 1987) ; Ex parte Mason , 656 S.W.2d 470, 47 1 (Tex. Crim. App. 1983) ; Gaffney
v. State , 812 S.W.2d 439, 440 (Tex. App.

— Texarkana 1991, pet. ref ’ d); Nubine v. State , 721 S.W.2d 4 30, 434 (Tex. App.

— Houston [1st Dist.] 1986, pet. ref ’ d) )) ; Jones v. State , 758 S.W.2d 356, 356 (Tex. App.

— Houston [14 th Dist.] 1988 , pet. ref ’d ) ( “[W ] e are not limited
to the record made in t he tr i al court as to law of a sister state. We may take judicia l no tice of the6 laws of Marylan d. ”) . As the Court of Criminal Appeals explained in M a son prior to the

en actment of Rule 202 , “ [W] e reject the notion that an appellate co urt must look solely t o the

reco rd made in the trial court for ‘ evidence ’ of statutory pro visions in the law of a sister state. ”
656 S. W.2d at 471 ; see also Willis v. State , 589 S.W.3d 221, 225 (Tex. App.

— Texarkana 2019, no pet.) ( observing that content of ano ther state ’ s law is no t subject to reasonable dispute because it can be accurate l y an d readily determined from sources whose accuracy cannot reasonably be questioned ). Here, the enhancement paragraph to which Smith pleaded tr ue alleg ed :
It is presented in and to said [c] ou rt th a t, on or about August [] 25 , 1997, in Cause Number 97CR2460, in the Superior Court of Dekalb County, Geo [r] gia, the Defendant was finally convicte d of the non

- state jail felony offense of THEFT RECEIVING STOLEN PROPERTY

. During the plea hearing , both S m ith and his counsel stated that they under stood that by pleadi ng t rue to the enhancement, Smith ’ s “ range of punishment on Count 1 would be anywher e from two to 20 years in p rison. ” Smith also testified that he had r ead and understood
Coun t I, for which t he t r ial judge explained “ the range of punishment

. . . is actu ally that of a second degree felony, just as I discussed, of 2 to 20 years in prison, 2 to 10 years of probation, and up to a $10,000 fine. ” Smith subsequently pleaded guilty to Counts I throu gh I I I and true to the enhancement paragraph “ simply because [h e is ] guilty and because the allegations are true and for no other reaso n
. ” Under Georgia law, “ [a] person commits t he offense of theft by receiving stolen property when he receives, disposes of, or retains stolen property which he knows or should know w as s tolen unless the property is received, disposed of, or retained with intent to restore it
to the owner. ” Ga. Code Ann. § 16

- 8

- 7 (a) (1997)

. T he offense is punished as a misde meanor7 exce pt , in r elevant part : “ if the property which was the subject of the theft exceeded $ 500.00 in value, by imprisonment for not less than one nor more than ten years or, in the discretion of the trial judge, as for a misdemeanor

. ” Id. § 16

- 8

- 12 (a)(1)

. A “ felon y” i s defined under G eor gia law

as “ a crime pun ish a ble by death, by imprisonment for life, or by imprisonment for more than
12 months. ” Id. § 16

- 1

- 3(5)

. B ecause the out

- of

- sta te offense for which Sm ith was convicted carried imprisonm ent in a pe nitentiar y as a possible punishment, it is a third

- degre e fe lony for enhancement purposes under s ubsection 12.42(a)

. S ee Tex. Penal Code §§ 12.41(1) , .42(a). Thus, h is sentence w as properly enhanced , a n d , as it did not exc eed the statutory maximum for a

s econd

- de g ree f elony , s e e id. § 12.33 (a) (providing that sec ond

- degree felony is punishable by imprisonment “ for any term of not more than 20 years or less than 2 years ” ) , was not illegal , s ee Ex parte Pue , 552 S.W.3d at 228 ( “ An illegal sentence is one that is not auth o rized by law; therefore, a sentence that is o utside the range of punish ment authorized by law is considered illegal. ” (citing Mizell v. State , 11 9 S.W.3d 804, 806 (Tex. Crim. App. 2003); Ex parte Beck , 922 S.W.2d 181, 182 (Tex. Crim. App. 1996)) ).
Sm ith a r gues , conve r sely, t hat the i ssue i s decid ed b y the Court of Criminal Appeals ’ decision in Ex parte White , 211 S.W.3d 316, 319 (Tex. Cri m. App. 2007 )

. He asserts that the Ge orgia offense of theft by receiving stolen proper ty is “ substantia lly similar ” to t he Texas offense of theft, which is c lass ified as a misdemeanor or state jail felony unless the value of the stolen property exceeds $30,000 or meets certain cat egorical exceptions inapplicable here

. See Tex. Penal Code § 3 1 .0 3(a), ( e) (1)

– (5)

. Beca use t h e record is silent as to t he value of the stolen property in the Georgia case, he contends , the S tate f ailed to demonstrate that the8 conviction in that cas e was for a felony and could therefor e be used to enhance his sentence under s ubsect ion 12.42( a ).
H i s reliance on W hite is , however, misplaced

. W hite concerned enhancement under subsection 12.42(c) (2), not 12.42(a). 211 S.W.3d at 318 ; see Tex. Penal Code § 12.42(c)(2) ( addressing enhancemen t wh en charged offense and previous felony offe nse s were

s exual assault or human trafficking

- related offenses)

. Subsection 12.42(g) (2) provides , “ F or the
pu rp o ses o f Subsection (c)(2) :
. . . a c onviction under the laws of another state for an offense

con t aini ng elements that are substantially similar to the elem ents o f an offense listed under Subsection (c)(2)(B) is a conviction of an offense listed under Subsection (c)(2)(B). ” Tex. Penal Code § 12.42(g)(2) (emphasis added)

. For purposes of subsection 12.42(a), on the other hand ,

“ the relevant inquir y is whethe r ano t her state chose to classify the offense as a felony. ” Williams
v. State , 356 S.W.3d 508, 517 (Tex. App.

— Texarkana 2011 , pet. ref ’d ) (distinguishing between standard s under s ubs ections 12.42(a) and 12.4 2 ( c)( 2)) ; see Co ok v. State , 256 S.W. 3d 846, 851 (Tex

. App.

— Texarkana 2008 , no pet. ) (explaining that defe ndant ’ s reliance on s ubsection
12 .42(c)( 2) was misplaced because “ ‘ subst antiall y similar ’ re quirement is not applicable to enha ncements under Section 12.4 2(d) ” ). Smith also argues that a lthough he pleade d true to the enhancement allegation

— which as a “ general rule

. . . relieves the state of its burden to prove a prior conviction alleged for enhancement and forfeits the right to appeal the insufficienc y of evidence t o prove the prior

conv iction ”

— his case f alls within the exception “ when the record affirmatively reflects that the enhancement itself was improper

. ” Roberson v. State , 420 S.W.3d 832, 838 (Tex. Crim. App. 2013) ( citing Sanders v. State , 785 S.W .2d 445, 448 (Tex. App.

— San Anton io 1990, no pet.) )

. We f irst note that his argument conflates a n illegal

- se ntence claim , a question of l aw, with a n9 evidentiary

- suf fi ciency challenge

. Cf. Flowers v. Sta te , 220 S.W.3d 919, 921 (Tex. Crim. App. 2007) (explaini ng that to prove prior convic tion, State must o nly establ ish that (1) conviction exist s, an d (2) defendant is linked to conviction ” )

. B ut see Lugo v. State , 299 S.W.3d 445, 455 (Tex. App.

— Fort W orth 2 009, pet. ref’d) ( “ [F] or the State to show that Lugo was subject to punishment as a two

- time ha bitual offender, it was required to show b eyond a reasonable doubt that before commission of the primary offense

— murder

— Lugo had been finally convicted of feloni es i n cause numbers 0573866D and 0484031D and that they were committed in the proper
sequence
. ” ). Se c ond, to the extent that Smith raises such a chal lenge , the enhancement
paragrap h does not show on its face that his conviction was for a m isdemeanor , and the re is nothing in the record before us to indica te that the allegation was of an o ffense for

w hich i mpri sonment in a penitentiary was not a possible punishment

. See Axelrod v. State , 764 S.W.2d 296 , 30 1

– 0 2 (Tex. App.

— Houston [1st Dist.] 1 988 , pet. dism ’ d 789 S.W.2d 594 (Tex. Crim. App . 1 989) ) ( “ [W] e have before us a silent record, a plea of true, and a facially valid enhancement allegation. No reversible error is apparent in this record. ” ). Any such argument is therefore without merit. For thes e reasons, we overrule Smith ’ s single issue on appea l.

CONCLUSION Having overrule d Smith ’ s sole issu e, w e a f firm the judgment of the trial court.10 __________________________________________ R osa L opez Theofa nis , Justice Before Justices Baker, The ofan is, a nd Jones* Affirmed Filed: May 4 , 2023 Do Not Publish *Before J. Woodfin Jones, Chief J usti ce (Retired), Thi rd Cour t o f Appe als, sitting by assign ment. See T ex. Gov ’ t Cod e § 74. 003(b)

.