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Rodriguez v. State

Court of Criminal Appeals of Texas

June 5, 2019



          Yeary, J., filed a dissenting opinion in which Slaughter, J., joined.


         I dissent to the Court's failure to grant discretionary review in this case. It represents another incarnation of an issue I have been urging the Court to tackle for some time now, to no avail. The Third Court of Appeals held that the use of a prior felony conviction to enhance Appellant's sentence was improper because part of the evidence the State offered to establish the prior felony conviction suggested that the offense committed was actually no more than a state jail felony, unavailable for habitual enhancement under Section 12.42(d) of the Penal Code. See Tex. Penal Code § 12.42(d) (providing for a punishment range of 25 years to life upon a felony conviction if the defendant has been convicted of two sequential prior felony convictions other than a state jail felony).

         Appellant did not complain in the trial court that the prior conviction should not have been used against him to impose habitual punishment under Section 12.42(d). Nevertheless, because the court of appeals believed that the State's use of the prior conviction for enhancement resulted in an illegal sentence, which this Court has declared to be subject to challenge even when raised for the first time at almost any stage of post-conviction review,[1]it reversed the trial court's judgment and remanded the cause for a new punishment proceeding. Rodriguez v. State, No. 03-18-00260-CR, 2018 WL 6425018, at *9–14 (Tex. App.-Austin Dec. 7, 2018) (mem. op., not designated for publication). I am not convinced that Appellant should be permitted to challenge his sentence in this case by arguing for the first time on appeal that his prior third-degree felony conviction, which the State relied upon to enhance his punishment, was only a state jail felony conviction. I would grant the State's petition for discretionary review to examine the court of appeals' disposition of the case.


         A jury found Appellant guilty of possession of methamphetamine in a correctional facility, a third-degree felony. At punishment, the State proceeded with evidence of two prior felony convictions it had alleged in the indictment for habitual enhancement purposes under Section 12.42(d).[2] One of the prior convictions alleged to enhance Appellant's punishment to habitual offender status was a third-degree felony theft conviction. In order to prove that prior theft conviction, the State introduced the indictment and the judgment, the latter of which recited that he was convicted of a third-degree felony. The indictment alleged that Appellant committed the theft "on or about" September 27, 1994.[3] The judgment, however, recited that Appellant was convicted of having committed the offense, not "on or about," but "on" September 27, 1994. Unfortunately for the State, if the particular theft Appellant was shown to have committed (property valued at less than $1,500, with two prior theft convictions) really did occur "on" September 27, 1994, then the judgment should only have reflected conviction for a state jail felony, which may not be used for habitual enhancement purposes under Section 12.42(d). See Acts 1993, 73rd Leg., ch. 900, § 1.01, p. 3638, eff. Sept. 1, 1994 (amending Tex. Penal Code § 31.03(e) to lower the punishment for theft under these circumstances from a third-degree felony to a state jail felony). The enhancement allegations were nevertheless found to be true, and Appellant received a life sentence for the possession-in-a-correctional-facility conviction.

         For the first time on appeal in this case-nearly a dozen years after his prior conviction for third-degree felony theft became final, and without previously attacking that final conviction through a post-conviction application for writ of habeas corpus-Appellant argued that the trial court erred to allow the enhancement of his punishment with this particular final prior theft conviction. The court of appeals agreed, holding that the judgment recitation that Appellant committed the offense "on"-not just "on or about"-September 27, 1994, established that the prior theft offense was not a third-degree felony, as stated in the judgment, but only a state jail felony. It therefore concluded that the prior theft conviction was not the kind of felony that is required for habitual enhancement under Section 12.42(d). Rodriguez, 2018 WL 6425018, at *13.[4] Even though the judgment also recited that Appellant was convicted of a third-degree felony, the court of appeals concluded that the punishment he received in that case-a ten year sentence, originally suspended, but later imposed after his community supervision was revoked-was unauthorized, thereby voiding the theft conviction and rendering it unavailable for later enhancement under Section 12.42(d). Id. at 14. The State has now challenged this holding on discretionary review.


         As I have expressed in recent dissents, I do not disagree in principle with the proposition that truly "illegal sentences" ought to be subject to remedial court action even when raised for the first time on collateral attack. See Ex parte Pue, 552 S.W.3d 226, 239 (Tex. Crim. App. 2018) (Yeary, J., dissenting) ("I have no quarrel with the notion that an 'illegal sentence'-that is to say, a sentence that on its face falls outside the range of punishment authorized by law-should be regarded as cognizable even if complained of for the first time in post-conviction habeas proceedings."); Ex parte Clay, 539 S.W.3d 285, 286–87 & n.2 (Tex. Crim. App. 2018) (Yeary, J., dissenting) (recognizing Mizell, but observing that "[t]he cases that support this proposition mostly involved assessment of a punishment that was simply unauthorized by statute"). But I have also argued that the "principle that an 'illegal sentence' may be raised 'at any time,' regardless of whether there was a contemporaneous objection lodged at trial, does not apply with respect to improper enhancement claims-or at least not all (and maybe not even most) improper-enhancement claims." Pue, 552 S.W.3d at 240 (Yeary, J., dissenting) (citing 43B George E. Dix & John M. Schmolesky, Texas Criminal Practice: Criminal Practice and Procedure §59:55, at 886–87 (3d ed. 2011)); Clay, 539 S.W.3d at 287 (same).

         As in Pue and Clay, the prior conviction that the State used in the case to enhance Appellant's sentence is being challenged for the first time in a collateral attack-albeit a collateral attack of a prior conviction in the direct appeal of the primary conviction that was enhanced. We long ago held that such prior convictions could not be collaterally attacked on direct appeal in the absence of a trial level objection, subject to a very limited exception. In 1982, this Court handed down its opinion on rehearing in a case called Hill v. State, 633 S.W.2d 520 (Tex. Crim. App. 1982) (op. on reh'g). On original submission in Hill, a case which, like this case, was addressed on direct appeal, the Court had set aside the conviction because one of the prior convictions used to enhance the punishment to habitual status had later proven to be invalid on the ground that the appellant had not had the assistance of counsel when he appeared in court for the pronouncement of sentence. Id. at 522 (op. on orig. subm.). The Court reversed itself on rehearing, however, holding that "the failure to object at trial to the introduction of proof of a[n] allegedly infirm prior conviction precludes a defendant from thereafter attacking a conviction that utilized the prior conviction." Id. at 525 (op. on reh'g).

         There was one exception that Hill recognized. Even in Hill itself, the Court acknowledged that an objection might not be required to collaterally attack prior convictions "based upon void charging instruments." Id. at 523.[5] And, indeed, in subsequent cases, we continued to allow collateral attacks upon convictions with enhanced sentences based upon prior convictions that were predicated on fundamentally defective indictments, since such indictments had deprived the convicting courts-in those prior convictions-of jurisdiction to render judgments in the first place. See, e.g., Duplechin v. State, 652 S.W.2d 957, 957–58 (Tex. Crim. App. 1983) (distinguishing Hill on the basis that the prior conviction had been based upon a fundamentally defective indictment, and granting relief on appeal despite the lack of a trial objection); Ex parte White, 659 S.W.2d 434, 435 (Tex. Crim. App. 1983) (continuing to grant post-conviction habeas corpus relief for a claim that an enhancement had been improper, notwithstanding Hill, because the prior conviction had been predicated on a fundamentally defective charging instrument); Ex parte Todd, 669 S.W.2d 738, 739 (Tex. Crim. App. 1984) (granting post-conviction habeas corpus relief because "[i]t is an exception to the [Hill] rule that . . . the prior conviction complained of is based on a void indictment").[6]

         But the Court has yet to explain what other defects in prior convictions-making them unfit for use to enhance subsequent sentences-may serve to obviate Hill's contemporaneous objection requirement. Specifically, should Appellant have to object at trial to an apparent conflict in the judgment of a prior conviction that has been alleged for enhancement purposes before he may bring an appellate challenge to the use of that prior conviction? Here, there was an apparent conflict in the enhancement-offense judgment: a recitation that Appellant was convicted of a third-degree felony, but another recitation-that the offense occurred on September 27, 1994-that, if true, would render the first recitation inaccurate. Had Appellant objected at trial that he could not be enhanced on the basis of such a judgment-or, better yet, had he timely challenged that prior conviction in a post-conviction application for writ of habeas corpus-the conflict could potentially have been addressed and resolved.[7] It might even have been resolved in such a way that the State could use the prior conviction to enhance after all.[8] In any event, unlike the quintessential "illegal sentence" scenario,[9] it is not indisputably clear that Appellant's jury could not have resolved the conflict in the judgment-assuming it even had any basis to comprehend the legal significance of the conflict-by finding that the recitation of the date the offense was committed was mistaken.[10]

         While the indictment alleged the offense was committed "on or about" September 27, 1994, the offense might actually have been committed before September 1, 1994, in which case it would have indeed constituted a third-degree felony and could have been used to enhance Appellant's punishment.[11]

         The Court should at least grant the State's petition for discretionary review in this case to decide whether the defect in the judgment for the underlying theft conviction falls within the Hill contemporaneous objection requirement or ...

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