*1 Sеe, should be admitted. Jones v. parties may given. When a detailed (Tex.Cr.App.1978). act, declaration, writing conversation or act, evidence, given decla- requested is denied. The relief necessary to writing ration or which is explain fully make it understood or to given also be evidence.” petitioner part of Dr. An-
Since admitted testimony, previous
derson’s introduc- containing portion
tion of the the extrane-
ous offense was not error. The extraneous disputed
offense related to a material issue competency. appellant’s in the case: Lynn parte Dale BLUME. Ex petitioner’s retrospective hearing, At No. 65266. built a case around mani- pulative exposed behavior. The State Texas, Appeals of Court of Criminal that, extraneous offense to show because En Banc. commitment, charges against the civil July petitioner had been dismissed. Not only did the commitment result in the dis- charges,
missal of subsequently peti-
tioner escaped custody. from The State’s
theory focused the facts that the com-
mitment incompeten- did not show mental contends,
cy, petitioner as the but showed
exemplary manipulative behavior. The
questions concerning the extraneous of-
fense were develop relevant the State’s
theory petitioner feigned ill- mental 59,663, (No.
ness. See Ballew v. State 17, 1980) (pending
December on motion for
rehearing). ground of error is over-
ruled.
Moreover, petitioner’s objection to misplaced extraneous offense is
competency hearing. purpose The basic
the exclusion of extraneous offenses is to
prevent being the accused from tried for
some being collateral crime or for a crimi generally.
nal Campos v. purpose Such is not
applicable competency hearing. pe in a A guilt
titioner’s or innocence is to be deter
mined separate in a trial where extraneous generally prohibited.
offenses are
46.02(4)(a), competency V.A.C.C.P. In a
hearing, concerning peti all relevant facts
tioner’s mental competency should be sub Watson,
mitted to jury. parte su
pra. If the extraneous offense is relevant issue,
and material to this contested
374
court further found “from an examination by of the record and from admissions enhancing felony that the conviction a felony was for an offense not made under law, punishment that the should Texas be set aside.” the find by not bound This Court is conclusions, ings, or recommendations of post- reaching court in decisions on the trial application for writ of habeas convictiоn Ramirez, corpus parte relief. 577 261 S.W.2d question presented is The sole 2 Penal a fed whether under the new Code Huttash, Austin, Atty., for Robert State’s for an offense which does eral conviction the State. felony the Texas not constitute a under punish be used to enhance Penal Code can V.T.C.A., 12.- ment under Penal 42. We hold that it can.
OPINION Code,3 the enhance- the old Penal Under provided ment articles as follows: DAVIS, Judge. W. C. conviction for Subsequent “Article 62. post-conviction This application is an for on trial of a felony. If it be shown pursuant writ of habeas to Article corpus defend- capital that felony less than Petitioner was Vernon’s Ann.C.C.P. convicted of the same ant has been before 18, felony pos- August convicted on 1978 of nature, or one of the punishment his session of marihuana and subsequent such second or punishment on third-degree felony enhanced1 from a to a highest which is shall be the conviction second-degree felony by prior the use of a of such of- to the commission affixed felony conviction in Federal Court. On Oc- ordinary cases.4 fenses 8,1980, petition- tober this Court remanded felony. Third conviction Article 63. application er’s court back to the trial times con- Whoever shall have been three findings of fact as to whether the federal capital shall less than victed conviction was enhance- indeed used for imprisoned for conviction be on such third (Tex.Cr.App.). ment. life in the determination, Within this factual which is felony”, us, speak of “a now While these statutes before the trial court finds 47, which Vernon’s Ann.P.C. by conviction “was enhanced it was Article 47, supra, Article “felony”.5 Under Applicant’s plea of true to a felo- defined misde- conduct could be ny in Federal The trial before Court.” 12.42(a). act or omission forbidden “An offense is an 1. annexed, law, by positive on and to which V.T.C.A., 1973, Legis- 2. Acts 63rd conviction, any prescribed in this lature, January Chap. effective must —be An offense Code. —not by Chap. Legislature, amended 426, Acts 63rd by punishable confinement death January effective 1974. felony; every penitentiary other offense is a capital either is a misdemeanor. Felonies are Ann.P.C., Legislature, 3. Vernon’s Acts 39th capital. An offense for which or not felony. capital highest is death is a misde- emphasis are divided into felonies 4. All added writer of this Offenses unless otherwise indicated. meanors.” 47, supra, provided: 5.Article
375 “offense”, they meanor less were for it had to constitute an crimes denounced something and an offense was defined as Legislature of Texas as felonies. See also law, by positive “forbidden and to which is Puckett, Ex Parte 310 Tex.Cr.R. annexed, conviction, аny punishment (1958) Clark v. prescribed in this code”. Tex.Cr.R. The first construing case su- *3 State, supra, As noted Garcia pra, State, was Arnold v. 127 Tex.Cr.R. statutory guidance Court without (1934) (opinion S.W.2d 997 rehearing), classify pur for convictions enhancement wherein the defendant contended that hence, poses: the rationale set forth in Ar applicable statute was not because one of State, supra, nold v. became the rule. Such prior his convictions was had in Federal forty was the state of the law in Texas for Court. This Court stated: however, years; with the enactment of the stresses, “The point appellant exact Code, sig new Penal made namely, that the conviction in the federal changes wording nificant of the enhance court pen- cannot be used to enhance the ment statutes. him, alty against stated, as above passed been on so far as the mеmbers of pro- 12.42 now V.T.C.A. Penal this court are aware. Considered vides as follows: light however, precedents, upon “(a) If it be shown on the trial of general subject of the trial of habitu- third-degree felony that the defendant criminals, al no sound perceived reason is any has been once before convicted of for setting present aside judgment. felony, punished on conviction he shall be above, As stated one of priоr convic- second-degree felony. for a against tions the accused was in the Unit- (b) If it be shown on the trial of a ed States court. It was in the state of Texas, however, second-degree felony defendant and was for an offense by any has been once before convicted of of the state.” felony, punished on conviction he shall be Next, in Garcia v. 140 Tex.Cr.R. first-degree felony. for a the defendant was convicted fоr assault (c) with intent If it be shown on the trial of Punishment, murder. by enhanced use of first-degree felony that the defendant several felony convictions in both federal any has been once before convicted states, foreign courts of was assessed at felony, punished on conviction he shall be imprisonment pursuant life to Article by Department confinement in the Texas supra. Initially, rejected the Court ap- life, any of Correсtions for or for term of pellant’s contention that felony convictions years not more than 99 or less than in federal support courts will not impo- years. sition of a life sentence. posited: The Court (d) If it be shown on the trial of only question “The which we consider to felony offense that the defendant has open by this Court is previously been convicted of two whether or not the convictions must offenses, previous felony and the second be for offenses which are denounced conviction is for an offense that occurred the law of Texas as felonies.” subsequent previous to the first convic- The Court looked for an answer in the final, having tion become on conviction he legislative history pro of the enhancement punished by shall be confinement in the visions, but found none. The Court then Department Texas of Corrections guidance turned fоr language in Ar life.” above, quoted nold v. and concluded Under the new that convictions for felonies in federal 1.07(a)(14), “felony” courts and is defined as courts of other states would not support the enhanced in Texas un- follows:
“ enhancement, pursuant available for designated an ‘Felony’ means offense so punishable law death or confine- or V.T.C.A. Penal Code. Petitioner was ment in a concealing receiving conviсted of a sto- vehicle, proscribed motor len an offense 1.07(a)(20), Under V.T.C.A. Penal provides: ’ “ 18 U.S.C. ‘Law means the constitution or a stat- conceals, stores, receives, “Whoever bar- ute of this or of the United States ters, sells, disposes or motor vehi- aircraft, as, moving or which is a cle or however, importantly, Most of, which or part constitutes interstate specifically ture enacted a statute to deal commerce, knowing foreign the same to for enhancement the classification stolen, be fined not more have been shall purposes of convictions obtained outside the $5,000 imprisoned than for not more states, part: 12.41 Code. Section years, than five or both.” subchapter, any purposes “For of this *4 4083, 18, provides part: in Title U.S.C. § prosecu- from a conviction not obtained against “Persons convicted of offenses tion under this code shall be classified as the courts-martial United States follows: imprisonment for more punishable by (1) degree’ ‘felony of the third if confine- in may be confined year than one penitentiary ment in a is affixed to United States possible punishment, the offense as a peti- Thus, for which federal offense the in confinement tioner was convicted carried provi- Contrasting the old code with the punishment. penitentiary possible as a the sions of the new can be no doubt there 12.41(1), supra. con- that intended to make he that in courts as well also contends petitioner victions for felonies federal in as courts of states available for en- of counsel the effective assistance denied purposes. investigation hancement was conduct pre-trial no that attorney. There is noth by his ed defense State, However, Montgomery v. 571 support this which would ing in the record (Tex.Cr.App.1978), since 18 decided S.W.2d the alle proof of assertion. The burden the effective date of the new Penal a to relief prisoner entitle the gations which panel of this Court followed the rule an Alexan Parte upon petitioner. code; e., felony the old i. nounced under We (Tex.Cr.App.1980). der, 598 308 S.W.2d law must be under Federal an offense not sus has petitioner conclude that felony which is denounced аs a under Texas proof. burden of tained his State, (Tex. 548 410 law. Smith v. S.W.2d decided since the new Cr.App.1977), also denied. requested is The relief Montgomery, in and cited in It is so ordered. prior federal conviction volved the use of a I,Art. 11—a of the deny to bail under ROBERTS, J., participating. applied the
Texas Constitution. The Court federal offense old rule but found that the CLINTON, concurring. Judge, by Texas law. Both was also denounced relied on former Montgomery and Smith and authorized empowered Were we authority, and in Penal Code cases for their weigh to determine the first instance neglected to consider both cases this Court to and then public policy considerations Insofar of the new Penal Code. the effect re- decision with consequential make ap turn on the Montgomery and Smith habitual repeat spect rule, they are overruled. plication of this offenders, might urge the Court I rule that established rationale adhere to application, Turning back to State, v. Montgomery merely conviction was followed that the federal we conclude 377 Indeed, join I With these observations 571 18 S.W.2d for the Court. might that reasonably one conclude public policy presently of Texas J., ONION, joins. P. federal
rejects underlying the notion pun- sought to be offense used to enhance TEAGUE, Judge, dissenting. State, supra
ishment
—а
de-
when this Court
May
Since
of firearm
insists
mild form
control —and
State,
127
cided
Tex.Cr.R.
74
Arnold v.
regu-
attach to
no
kind
law in
this State
acquisi-
latory
pertaining
simple
scheme
been
conviction from a for-
tion of a firearm.
between
Similar tensions
jurisdiction may
eign
not be used
or Federal
per-
federal and state interests
well
punishment purposes
for enhancement
situations,
in other
need not
upon
ceived
but I
an offense
predicated
unless it was
the laws of
engage
that academic
make
was also
exercise
Montgomery v.
Texas. See
point.
(1978). Today,
Title
Provisions
Montgomery,
and buries
changes the law
D,
Subchapter
12.43,
12.42 and
§§
colors, and sub silentio over-
without full
Legislative Department
are creations of the
Arnold,
supra, and Garcia v.
rules
people
in which the
law-
have vested their
(1940).1
Tex.Cr.R.
making power,
III,
Constitution
respectfully
in the law I
To this
Texas,
of the Stаte of
Judicial
and the
dissent.
Department
yet
been constitutional-
*5
many
why
change
such
There
reasons
are
ly permitted
proper-
“any power
to exercise
Upon
in the law is unwarranted.
close
ly
Legislative
attached” to either the
or
majority’s attempts
justify
to
analysis, the
II,
Departments,
Executive
see Article
§
lacking
logic
holding
its
both
and skill
is
Any
proposi-
id.
further discourse on that
statutory construction.
superfluous.
tion is
very simple
is the
fact
First and foremost
enactments,
Legis-
By
supra,
its cited
the
Legislature,
presumed that
the
it is
lature,
deliberation,
presumably upon due
enacting
to consider
new
when it meets
consciously
judicial gloss
removed the
laws,
old
of
repealing
laws
is aware
this
previously applied
Anderson,
to
provisions
antecedent
See State
Court’s decisions.
codes,
of
penal
the former
of
observations
119 Tex.
26 S.W.2d
aсcurately
opin-
which are
described in
supra,
Sep-
was decided on
Montgomery,
Thus,
through
ion for the Court.
though
1, 1981,
On June
almost
tember
1978.
application of the classification of offenses
later,
Legislature of this
years
three
penal
12.41, supra,
outside
§
its 67th session. Interest-
completed
State
public policy
may
be
State of Texas
Legislature
presuma-
ingly, though the
egregiously
so
offended that constitutional
Mulchahey,
Montgomery and
bly aware of
protections
implicated,
are
the case at bar
overrule
substantively
single
not one
bill
proposed by
present
Mulchahey was
does not
such an instance.1
presented,
conjure up
suppose
this Court would be im
example,
raised and
pelled
an
To
extreme
light
the situation in
of con
to examine
of this State
record
citizen
has a
criminal
and, my judgment,
flicting
policies,
public
conducting
bingo game
of
today.
should do so. But
organization
behalf of a veterans
in a sister
clearly
classi
state which has
majority does not see fit to discuss
1. As the
meaning
fied that offense as a
within the
unanimous
of Ex
this
recent
Court’s
Yet,
supra,
related definitions.
parte Mulchahey (No. 67,278, 4/1/81, State’s
people
late
November 1980 election the
motion for leave to
rehearing
file motion for
plainly approved
empowering
оf this
unanimously
4/29/81),
it, too,
denied
has been
just
Legislature
regulate”
to “authorize and
sub
Chronologically,
silentio overruled.
how-
bingo games,
very
thereby endorsing the
such
ever,
got
it has
to be one of the shortest-lived
penalized by
sister
conduct denounced and
unanimous
decisions ever handed down
this
Certainly,
properly
if
state.
the issue were
Court.
Legislature to the view which this
Legislature.2
a member of the 67th
Com-
Court
Carvajal
pare,
v. would takе
In these three
Court’s decision
[in
future].
(1975),
regular
the en-
sessions the
act-
12.46, ed,
actment
only
of Y.T.C.A. Penal
Sec.
and we can
construe their failure to
Carvajal
effectively
overruled
act as an endorsement of the construction
give
our statute which these cases
to it.”
is the statute itself. Y.T.C.A. Pe-
Second
Id. at 182.
12.42(d),
present “habitu-
nal
statute,”
substantially
al criminal
a reco-
Judge Beauchamp
say?
also
But what did
dification of former Penal
Art. 63. In
Code
message
Legislature by
He
sent a
it
drafting the remainder of
12.42 was
change
if
desired to
the law
Garcia that
necessary
qualifica-
to eliminate the former
conviction,
encompass
all that
any
tion “of the same
or one of the
phrases
was needed was to add the words or
nature,”
catego-
because of the new
state,
or in
“in this or in
This,
felonies,
rization of
see
12.04.
statutes.
federal court” to the enhancement
however,
any intent
does not evidence
on November
Garcia was decided
change the former law as established in
years ago. Legislatures have
almost 41
Garcia, supra.
recently
of June
gone,
come and
most
august body of
day
to this
Third,
I do not believe the
fit to
government has not seen
import
holding and the
grasps the
of its
of our
recidivist-enhancement
substance
Supreme
reason
which the
rule
faсt,
statutes.
In
since
in Kirschner v.
Court of Wisconsin stated
ture has enacted recidivist-enhancement
adopted
A reading of 12.41 will reflect that it does apply per se to our recidivist-en- I understand the rule of stare decisis to statutes, hancement provided which are establishing precedent be one of and au- pertains non-penal to how a decisis, thority. The doctrine of stare sim- code classified, e., offense will be i. classifi- ply put, is that when this Court has once being dependent cation upon punishment— law, principle established a it will adhere jail, penitentiary, See, g., fine. e. Platter principle and apply it to all future As one, salutary cases. The doctrine is а Judge Clinton said in Betancourt v. ordinarily departed should not from “standing alone addressing principle when a decision or definitional, only Sec. 12.41 is without any long standing. law of also Black’s Law operative effect coupled unless with some (5th 1979). Dictionary, page 126 Ed. subsection of Sec. 12.42 for penalty pur- so, doing Without basis in fact for I poses.” Nowhere does 12.41 set out an believe that a of this Court intent to deviate from long-standing deрarting from the doctrine of stare decisis Garcia, rule of supra. Contrary to the ma- holding in this cause that federal or jority’s assertion that “there can be no foreign state now be legislature doubt that the intended to make pur- used for enhancement of convictions for felonies in federal courts as poses pursuant to Sec. 12.42. well as courts of other states available for *7 purposes,” enhancement adoption reasons, I foregoing For the above and new penal code in 1973 did not evi- [the] respectfully dissent of the decision dence intent part on the majority misconstruing our recidivist-en- ture that a different should hancement statutes. govern. thereafter Carvajal v. supra, and Commentary the Practice to Sec.
12.42(d), supra. Legislature’s most
recent omission to indicate a is of
major significance because we are here ad- construction,
dressing a matter of statutory decision,
not of judicially created rules of evidentiary matters. Shivers
It is evident from the above observations past interpretations this Court’s of our