Cooke, Derrick Keith
WR-81,360-01
Tex. App.May 29, 2015Background
- Derrick Keith Cooke was indicted in Tarrant County (2002) for family-violence assault; he pled nolo and received deferred adjudication, later adjudicated and sentenced to 3 years (2008).
- The Tarrant County charge was enhanced based on a 1999 New Mexico assault conviction.
- While the Tarrant conviction was used as an enhancement, Cooke was later convicted in Hood County (2008) of assault-family-violence (3rd-degree) and sentenced to 8 years; the Hood indictment expressly relied on the Tarrant conviction as an enhancement.
- Cooke filed an Article 11.07 habeas application (2011), arguing the Tarrant conviction was illegally enhanced from a Class A misdemeanor to a felony because Section 22.01(b)(2) authorizes enhancement only by prior convictions "under this section" (i.e., Texas convictions).
- Cooke also asserts ineffective assistance of trial counsel for failing to object to use of the out-of-state (New Mexico) conviction; he contends valid objection would have kept the Tarrant offense as a Class A misdemeanor and prevented the Hood enhancement.
- The Court of Criminal Appeals ordered briefing (Feb. 25, 2015); this brief argues jurisdiction (collateral consequences establish confinement) and seeks vacation of the Tarrant/Hood-enhanced convictions and relief for counsel’s ineffectiveness.
Issues
| Issue | Plaintiff's Argument (Cooke) | Defendant's Argument (State) | Held |
|---|---|---|---|
| Jurisdiction / collateral-consequence under Art. 11.07 §3(c) | The Tarrant conviction (improperly enhanced using a NM conviction) produced collateral consequences by enhancing the Hood County sentence, thus invoking habeas jurisdiction | The State would argue (implicitly) that collateral-consequence requirement is not met or that relief would not relieve consequences | Relief requested: Court should find collateral consequence and exercise jurisdiction (no final court decision in brief) |
| Legality of Tarrant enhancement under Tex. Penal Code §22.01(b)(2) | "Under this section" limits enhancements to prior Texas §22.01 convictions; a New Mexico conviction cannot support elevating a Class A misdemeanor to a felony — so the Tarrant sentence is illegal | The State (not briefed here) might argue the phrase permits out‑of‑state convictions or that case law permits the enhancement | Relief requested: Vacate Tarrant (and dependent Hood) felony enhancement as illegal; conviction/sentence outside lawful range (no final court decision in brief) |
| Effect on Hood County conviction (chain‑enhancement) | The illegal Tarrant enhancement was used to enhance Hood sentence; therefore Hood conviction is tainted and a collateral consequence exists | State would argue Hood conviction is independently supported or that vacating Tarrant would not necessarily alter Hood adjudication | Relief requested: Vacate Hood enhancement or grant relief because Hood relied on illegal Tarrant enhancement (no final court decision in brief) |
| Ineffective assistance of counsel for failing to object to New Mexico conviction | Trial counsel performed below objective standard by not moving to quash or object to out‑of‑state enhancement; reasonable probability of different outcome | State likely contends counsel’s failure was reasonable given then‑existing law or settled precedent | Relief requested: Find counsel ineffective and grant relief/remand for appropriate relief (no final court decision in brief) |
Key Cases Cited
- Ex Parte Graves, 70 S.W.3d 103 (Tex. Crim. App. 2002) (jurisdictional inquiry on habeas and collateral consequences)
- Ex Parte Harrington, 310 S.W.3d 457 (Tex. Crim. App. 2010) (collateral consequence alone can constitute confinement for art. 11.07)
- Ex Parte Parrott, 396 S.W.3d 531 (Tex. Crim. App. 2013) (illegal‑sentence claim based on improper use of prior convictions is cognizable on habeas)
- Strickland v. Washington, 466 U.S. 668 (U.S. 1984) (two‑prong ineffective‑assistance standard)
- Faulk v. State, 608 S.W.2d 625 (Tex. Crim. App. 1980) (plain‑meaning statutory construction)
- Mitchell v. State, 821 S.W.2d 420 (Tex. App.—Austin 1991) (interpreting similar "under this section" language to exclude out‑of‑state convictions)
- Boykin v. State, 818 S.W.2d 782 (Tex. Crim. App. 1991) (statutory interpretation principles)
- Chiarini v. State, 442 S.W.3d 318 (Tex. Crim. App. 2014) (statutory interpretation and plain‑meaning analysis)