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Ex parte Pue

Court of Criminal Appeals of Texas

February 28, 2018

EX PARTE JEREMY WADE PUE, Applicant

         ON APPLICATION FOR A WRIT OF HABEAS CORPUS CAUSE NO. CR2008-214-1 IN THE 207TH DISTRICT COURT COMAL COUNTY

          Richardson, J., delivered the opinion of the Court in which Hervey, Alcala, Newell, Keel, and Walker, JJ., joined.

          OPINION

         In 2008, Applicant Jeremy Wade Pue was convicted by a jury of the third degree felony offense of evading arrest or detention with a vehicle.[1] He was sentenced as a habitual offender because his sentence was enhanced by two California felony convictions-one from 2002 and the other from 2007. The trial court sentenced Applicant to thirty years in prison. His conviction was affirmed on direct appeal.[2] Applicant now claims in this application for writ of habeas corpus[3] that his thirty-year sentence is illegal because it was improperly enhanced by the 2007 California conviction.[4] Applicant had only two prior felony convictions, and both of them occurred in California. There were no other felony convictions the State could have used to enhance Applicant's sentence.[5] We agree that Applicant's sentence was improperly enhanced by the 2007 California conviction. We grant relief.

         I.

         Overview

         An illegal sentence is one that is not authorized by law; therefore, a sentence that is outside the range of punishment authorized by law is considered illegal.[6] A claim that a sentence is illegal because it exceeds the statutory maximum is cognizable in a writ of habeas corpus and may be raised at any time.[7] Thus, Applicant's claim that his sentence was illegally enhanced is cognizable even though he failed to raise that issue on direct appeal.[8]

         In 2008, when Applicant was sentenced in this case, the State sought to enhance his punishment with two prior felony convictions. One was a 2007 California felony conviction for possessing a "useable quantity" of a controlled substance under California Health and Safety Code § 11377(a). Applicant pled guilty to that 2007 possession charge before the Superior Court of Orange County, California, on May 21, 2007. Imposition of sentence was suspended, and Applicant was placed on probation for three years.[9] Applicant was still on probation for that 2007 California felony conviction when he was sentenced in this case in 2008.

         We filed and set this writ application to decide whether Applicant's sentence in this case was improperly enhanced. The first issue we specifically agreed to address was

whether Applicant's prior 2007 probated conviction from California, which was alleged in one of the habitual enhancement paragraphs, could have been used as a punishment enhancement in California and was therefore available for use as a punishment enhancement in this Texas prosecution.

         We ordered briefing on this issue and have reviewed the parties' briefs and considered their arguments. By order dated November 1, 2017, we noted that further briefing would be useful and invited both parties to provide this Court with legal and policy arguments as to whether the "finality" of an out-of-state conviction, for purposes of punishment enhancement in a Texas prosecution, should be determined in accordance with the law of the foreign jurisdiction or in accordance with Texas law.

         We now hold that, whether the 2007 California conviction could have been used as a punishment enhancement in California does not control whether such prior conviction was available for use as a punishment enhancement in this Texas prosecution. More importantly, we hold that, whether a prior conviction-in-state or out-of-state-is "final" under Texas Penal Code § 12.42 is to be determined in accordance with Texas law. This means that the law of another state does not control whether a defendant's conviction is properly enhanced under Texas law.[10]

          II.

         Punishment Enhancement Involving Out-of-State Prior Convictions

         Punishment enhancement for habitual offenders falls generally under Texas Penal Code § 12.42(d), which provides as follows:

Except as provided by Subsection (c)(2) or (c)(4), if it is shown on the trial of a felony offense other than a state jail felony punishable under Section 12.35(a) that the defendant has previously been finally convicted of two felony offenses, and the second previous felony conviction is for an offense that occurred subsequent to the first previous conviction having become final, on conviction the defendant shall be punished by imprisonment in the Texas Department of Criminal Justice for life, or for any term of not more than 99 years or less than 25 years. A previous conviction for a state jail felony punishable under Section 12.35(a) may not be used for enhancement purposes under this section.[11]

         Section 12.42(c)(2) and 12.42(c)(4) address enhancement when the charged offense and previous felony offenses were sexual assault or human trafficking related offenses. Neither section applies in this case. Moreover, since this offense was a third degree felony under section 12.35(c)(1), [12] section 12.35(a), which addresses punishment for state jail felonies, does not apply here.

          It is well established that under Texas law only convictions that are "final" can be used for enhancement purposes.[13] "[I]t is equally well established that a conviction is not final for enhancement purposes where the imposition of sentence has been suspended and probation granted."[14] "A successfully served probation is not available for enhancement purposes."[15] The imposition of a sentence is required to establish the finality of a conviction.[16] However, a probated sentence can turn into a final conviction if probation is revoked.[17] It is the State's burden to prove finality for purposes of enhancement under Art. 12.42(d).[18]

         An out-of-state prior final felony conviction can be used to enhance a sentence imposed in Texas. Under the Full Faith and Credit Clause of the United States Constitution, the various states must recognize "public acts, records, and judicial proceedings of every other State."[19] The Full Faith and Credit Clause ensures that judicial decisions rendered by a court in one state are recognized and honored in every other state. However, the out-of-state conviction must be a "final" conviction. In Spiers v. State, this Court reversed the appellant's conviction because there was no proof that his previous conviction for burglary in Mississippi, which resulted in a suspended sentence, was a final conviction:

The record reveals that in the burglary conviction appellant's sentence was suspended. There is no showing that this suspended sentence was ever revoked. Accordingly, there is no proof that the burglary conviction was a final conviction. Absent such proof such conviction cannot be used for enhancement.[20]

         The question, however, is whether the finality of the out-of-state conviction is to be determined under the other state's law or Texas law. There are several Texas appellate court opinions (many of them unpublished) that have held that a conviction from another state is considered "final" under Texas law for enhancement purposes if it is considered "final" under the other state's law.[21] However, only two opinions from this Court have been cited in appellate court opinions as authority to support such rule of law-Ex parte Blume[22] and Diremiggio v. State.[23] As we explain below, neither case persuades us to follow such rule.

          In Ex parte Blume, the defendant brought an action for post conviction writ of habeas corpus, asserting that his federal felony conviction was improperly used for enhancement because the prior federal felony conviction would not have been a felony under our state penal code. The "sole question presented" in Blume was whether a federal felony conviction for an offense which does not constitute a felony under the Texas Penal Code could still be used to enhance punishment under section 12.42.[24] We held in Blume that it could, since the federal felony offense for which the applicant was previously convicted carried "confinement in the penitentiary . . . as a possible punishment" in accordance with Texas state law-Penal Code § 12.41(1).[25] Therefore, under Blume, section 12.41(1) of the Texas Penal Code rendered the prior federal conviction a "felony of the third degree" under Texas law for the purposes of the enhancement subchapter. Ex parte Blume involved a federal conviction, not an out-of-state conviction, and the issue still was whether a conviction was properly enhanced under Texas law. Moreover, the finality issue currently before us was not at issue in Blume. We therefore find Blume distinguishable and not controlling of the issue before us today.

         The State maintains that under the rule of Diremiggio v. State, an out-of-state conviction is final in Texas if it is final under the law of the convicting state. We recognize that Diremiggio has been cited to support that position.[26] However, we do not agree that such is the holding of that case. Nor do we interpret Diremiggio v. State as standing for the proposition that if a conviction from another state is available for enhancement purposes in that state, then it is available for enhancement purposes under Texas law.

         In Diremiggio, the appellant had a prior conviction in Virginia for uttering a forged check with intent to defraud, and he was sentenced to the penitentiary for five years, with four years suspended on condition of good behavior for ten years. The State argued that only four out of the five years was suspended, so the appellant necessarily received a final conviction as to the one year actually served. This Court held that such "partial" imposition/suspension of a sentence was insufficient to make a prima facie showing that the prior conviction was a "final" conviction. This Court did not specifically hold that we must interpret whether a conviction from another state is available for enhancement purposes under that other state's law. Rather, in Diremiggio this Court held that the State had not met its burden to prove that there was a prior "final" conviction available to enhance the appellant's sentence. In so holding, this Court noted that, "while the method of partial imposition and partial suspension of execution of a sentence is alien to Texas law, the State made no effort whatever to enlighten the trial court if it had proof that such a conviction was considered to be 'final' under Virginia law."[27] As authority to support what we believe to be no more than a side comment, this Court cited to the case of Almand v. State.[28] However, Almand v. State does not stand for the rule that a prior out-of-state conviction is "final" for purposes of enhancement if it is "final" under the other state's law. Rather, in Almand, this Court simply recognized that the State had met its burden to prove that the prior conviction out of Louisiana was indeed a "final" felony conviction under Texas law. The State had introduced a pen packet showing that the defendant had been convicted of an offense in Louisiana. As punishment for such offense, he had served seven and a half years in the Louisiana State Penitentiary. This Court noted that, under the Texas Penal Code, a "felony" is defined as an offense punishable by "confinement in a penitentiary."[29] Since, "in the absence of any showing to the contrary, it is assumed the laws of another State are the same as Texas, " this Court agreed that the State had met its burden to show that the appellant had a prior final felony conviction.[30] Despite these distinctions, Diremiggio has been cited by appellate courts in Texas as the prevailing authority from this Court to support the conclusion that if an out-of-state conviction is available for enhancement under the other state's law, then it is available for enhancement under Texas law, even if it would not otherwise be considered a "final" conviction in Texas.

         Diremiggio and Blume have been stretched to stand for the proposition that if it is good enough for them, it is good enough for us. Today, we dispel such "rule" and clarify that the "finality" of an out-of-state conviction for purposes of enhancement must be determined in accordance with Texas law.

         Our decision today is consistent with previous cases we have decided. In Jordan v. State, [31] this Court said that "[i]n connection with section 12.42 enhancement provisions and their predecessors, we have held uniformly that the prior convictions must be final convictions."[32] Similarly, in Ex parte White, [33] we relied on Texas Penal Code subsections 12.42(c)(2)(B)(v) and 12.42(g)(1) and (2) in deciding that there was a statutory exception to this finality requirement. In Ex parte White, the applicant's convictions for indecency with a child and aggravated sexual assault of a child were properly enhanced by a prior Delaware offense of unlawful sexual contact even though the applicant's prior Delaware conviction was probated and probation was never revoked.[34] We held that, "[b]ecause of his prior conviction in Delaware, applicant had been 'previously convicted, ' under the laws of another state, of an offense containing elements that are substantially similar to the elements of an offense listed in subparagraph 12.42. (c)(2)(B)(ii)."[35] Thus, the prior Delaware conviction could be used for enhancement under subsections 12.42(c)(2), 12.42(g)(1), and 12.42(g)(2), even though probation had not been revoked because the specific language of our statutes allowed for enhancement "regardless of whether the sentence for the offense was ever imposed or whether the sentence was probated and the defendant was subsequently discharged from community supervision."[36] We specifically noted that "[b]ecause our own legislature has spoken specifically" to the issues before this Court in Ex parte White, it was not "necessary to determine whether such convictions are considered final by the originating jurisdiction or the effect of finality in a foreign jurisdiction on enhancements in Texas."[37]

         It is clear that the Texas Legislature has enacted specific statutory provisions allowing for enhancement for non-final convictions. But there is no specific Texas statutory provision allowing for enhancement in this case using the 2007 California non-final conviction. More importantly, there is no statutory authority allowing for out-of-state law to control punishment enhancement in Texas. The State argues that the absence of a post-Diremiggio amendment to section 12.42 addressing this issue illustrates the Legislature's intent that the law of the convicting state will determine the finality of an out-of-state conviction. In light of our interpretation of Diremiggio, and for the reasons discussed herein, we are not persuaded by this argument.

         Because Applicant was on probation for his 2007 California conviction at the time he was sentenced in this case, it would not have been considered a "final" conviction under Texas law. We hold, therefore, that since the 2007 California conviction was not available for enhancement under Texas law, it could not properly enhance Applicant's 2008 Texas sentence.

         In arguing that we should abide by California law to determine conviction finality, the State urges us to follow the California case of People v. Laino.[38] People v. Laino held that "a plea of guilty constitutes a conviction" and "for purposes of a prior conviction statute, a conviction occurs at the time of entry of the guilty plea."[39] However, People v. Laino does not address whether the conviction was "final" under California law, just that a guilty plea is a conviction. Thus, it is inapplicable.

         Moreover, the complexity of California's various enhancement laws further illustrates why it would be impractical for us to decide whether another state's law dictates whether a conviction is "final" under Texas law. First, contrary to the State's argument that the 2007 conviction was final under California law, we have found California case law to support the conclusion that Applicant's 2007 felony conviction-where the imposition (rather than the execution) of the sentence was suspended- was not "final, " even under California law.[40]Second, under California's "Three Strikes" laws, it is not clear whether Applicant's conviction could be used for enhancement in California.[41] We will not require a Texas trial court to sort through the nuances of forty-nine other states's enhancement laws, some of which may have no similarities with Texas enhancement requirements.

          III.

         Conclusion

         Unless a more specific Texas statute applies, Texas courts should follow Texas Penal Code § 12.42, requiring that a defendant be "finally convicted" of the alleged prior offense before punishment can be enhanced. And the determination of whether a defendant has been "finally convicted" for enhancement purposes under section 12.42 is to be made in accordance with Texas law.[42] In this case, because Applicant had been placed on probation for his 2007 California felony conviction, and probation had not been revoked at the time that he was sentenced in this case in 2008, his 2007 California conviction was not "final" under Texas law, and thus it could not be used to enhance his sentence in this case.[43]

         We grant relief based upon Applicant's first ground and hold that Applicant was improperly sentenced as a habitual offender.[44] Applicant's sentence is set aside, and he is remanded to the custody of the Sheriff of Comal County so that a new punishment hearing may be conducted by the trial court.

         CONCURRING OPINION

          Keller, P.J.

         I agree with the Court, for the reasons stated in its opinion, that Texas law should control when determining the finality of a foreign conviction.[1] I also agree with Judge Yeary that we should not grant relief on an "illegal sentence" claim of the sort before us without first addressing the propriety of doing so. But Applicant has also raised ineffective assistance-of-counsel claims for failing to research the finality of his second California conviction, and I believe that these claims have merit. My research convinces me that the second California conviction was not final under settled California law or settled Texas law. Because the conviction was not final regardless of what law applies, and because Applicant has no other prior convictions (aside from the two in California), I would hold that counsel was deficient for failing to challenge the use of this conviction for enhancement purposes, and Applicant was prejudiced because his thirty-year sentence exceeds the maximum punishment allowed for his offense.[2]

         Applicant was punished as a habitual offender under the 2008 version of Penal Code § 12.42(d). That statute explicitly required that the prior felony convictions be final:

Except as provided by Subsection (c)(2), if it is shown on the trial of a felony offense other than a state jail felony punishable under Section 12.35(a) that the defendant has previously been finally convicted of two felony offenses, and the second previous felony conviction is for an offense that occurred subsequent to the first previous conviction having become final, on conviction he shall be punished by imprisonment in the institutional division of the Texas Department of Criminal Justice for life, or for any term of not more than 99 years or less than 25 years.[3]

         The State's contention that California law did not require a conviction to be final to be usable for enhancement purposes is beside the point. Finality still had to ...


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