Gibson v. State

to intention- make it an offense wanted to knew GIBSON, Appellant, that the actor engage in conduct David Hill

ally unwelcome, failed conspicuously it (c) (a)(3) and what it in subsections do Texas. The STATE of naturally clearly did in subsections (a)(1) (2). No. 1267-98. As to the Texas. Appeals of of Criminal Court ... perpetrator us that “the

Court assures 30, 1999. that the conduct may fact wish I recipient.” shall welcomed knowledge that there

question the Court’s deny that it I shall not persons.

are such thing legis- for the have been a fíne

would made the governor

lature and the offense; may it persons of such

conduct that did so would have

be that a statute But it better than the one we have. to hold really unacceptable Court it

that, says, if what it the statute means it

would cause “absurd results” because coer- few instances of sexual

“would cover only those that are committed

cion”— in- of sadistic “something the nature holding begs question;

tent.”4 The say can that an instance

unintentional sexual conduct is “coercion”

only by assuming legislature coercion, as

wanted to define instance is at assuming point

which is Worse, self-contradictory;

issue. it is say

Court cannot one breath in a

statute can be construed reasonable sadistic,

fashion, namely to reach inten- conduct, and in next breath that

tional

that construction leads to absurd results. might not as the

The statute cover conduct wants, but that is not the same legisla- being

its absurd. We are not

ture; the statute that we must deal with enacted. governor if says it is an offense

And that statute “intentionally subjects an-

certain ... conduct of a

other to ... unwelcome in that nature.” I see no room

sexual culpable mental state other

language for

than intent.

4. Ante at 685 n. 7. alleged appellant was convicted twice

State before for offenses related to the Spe- of a motor vehicle while intoxicated. 4, 1989, cifically, appellant on December involuntary manslaughter was convicted of killing persons a result of intoxicat- operating a motor vehicle while conviction, In ed. one the trial court as- years punishment sessed at seven confine- year a fine a seven ment and and $300 in the other. Au- probated sentence On ap- gust the trial court revoked and him to pellant’s probation sentenced years three confinement. the en- pre-trial “quash motion to indictment, appel- count” of his hancement Dallas, Zwillenberg, appel- Bernard requested lant that the trial court strike lant. allegations” “one of two enhancement Sandlin, Atty., Michael J. Asst. Dist. Appellant argued the indictment. Dallas, Paul, Atty., Matthew Aus- State’s prior involuntary manslaughter con-

tin, for State. Al- victions arose from the same incident. though appellant conceded OPINION require that the convic- HOLLAND, J., opinion delivered another, subsequént tions be to one he P.J., Court, McCORMICK, all, all, if “virtually claimed other en- MANSFIELD, KELLER, PRICE, and provisions hancement Texas criminal WOMACK, KEASLER, JJ., joined. such to be require law do convictions charged appellant, David Hill State Appellant not simultaneous.” sequential, Gibson, while intoxicated “unfairly sought insisted the State en- been twice before convietqd single prior for “a punishment hance” his motor ve- trial court illegal requested act.” He being hicle while intoxicated. See allega- “strike one of the enhancement ap- Pursuant Penal appellant’s The trial court denied tions.” guilty, trial court con- pellant’s plea of motion. appellant charged for that offense. victed appeal, appellant claimed Sec- On direct at ten The trial court assessed apply tion did not to a $1,000.00 years imprisonment and fine. convictions for man- “has two gave appeal. his notice of arising out slaughter based on two deaths Fifth affirmed his convic- while intox- tion. Gibson v. the use of two argued icated.” He 1998). (Tex.App.-Dallas Appellant filed incident out of the same review, discretionary arguing petition for spirit “violates the and rationale erred when it concluded the Dallas Court punishment.” Ap- enhancement scheme of he could be convicted meet pellant asserted this did “not in- though even his pursu- criteria “from a toxication-related offenses arose 49.09(b).” ant to Penal Code Section affirm. (cid:127)single illegal act.” We will Appeals disagreed, Fifth 23, 1996, the indicted January On Legislature did not intend concluding the driving a motor vehicle while appellant for instant offense intoxicated. To intoxication- that one of the degree felony, a third

amounted to of Section the “scheme” distinguish the other will final before offenses be related scheme from the “enhancement had 12.42(d). After ad- of Section punishment” the two The court concluded committed. offenses, argument; part dressing prior intoxication-related alleged plain lan- whether the criminal trans- consider from the same we shall which arose 49.09(b) the requires suffi- together, tried guage and were of Section action as a intoxication-relat- prove prior the instant offense the cient to establish State to State, the 972 as sequentially, Gibson v. degree third offenses occurred ed to show in order required prove at 149. under a habitual offender a defendant is should argues this Court 12.42(d). first are issues of These Section Ap- because Court grant “[t]he review this Court.1 impression before that Penal Code holding erred in peals 49.09(b) person requirement Section of the of grades are three There times of convicted two previously has been while intoxicated. driving fense relating to a motor an offense by set grades difference between has two includes a intoxicated for certain prior number involuntary man- previous The offense offenses. intoxication-related arising out based on two deaths slaughter any without driving while intox- illegal while single convic alleged prior use of two Appellant contends the icated.” tions, B misdemeanor. is a Class Tex. same arising out of the prior convictions (c). If the State & Penal Code and rationale spirit incident “violates had can a defendant punishment, of the enhancement scheme operat offense related convicted of one num- to take into account the which seek vehicle, aircraft or ing a motor defendant, prior illegal ber of acts of driving while intoxi acts.” consequences illegal of such A misde a Class offense becomes cated responds that Section The State 49.09(a). meanor. Tex. Penal Code the number of convictions and pertains to driving while B misdemeanor A and Class illegal acts. not to the number county tried in the offenses are intoxicated 4.07. If Proc. art. courts. validity of shall first address the Tex.Code Crim. “pre a defendant had can of the assertion that the use times of an convicted two viously been intoxication-related offenses Sec- vehi related of an “en- offense” purpose tion serve the cle, while intoxicat- aircraft or watercraft This punishment.” hancement scheme of (Tex.App.- S.W.2d 815 appeals have addressed 1. Several courts of Streff v. 49.09(b)’s 1994, pet.) question regard Section no the Eleventh this predecessor, Eastland 1(e). 67011-l(e) Article did not held that Article 67011— Tex.Rev.Civ. (e) (Vernon Supp.1985), re Stat. art. 67011-1 proven offenses be intoxication rd Leg., by May pealed Act of felony DWI statute. sequentially in the 900, 1.15, R.S., Tex. Gen. Laws ch. (Tex.App.- 753 S.W.2d In Peck v. State, th 696 S.W.2d 3707. In Guinn v. ref’d), argued pet. the defendant Austin (14 Dist.) pet. (Tex.App.-Houston (e) analogous general that 67011-1 ref'd), Appeals held Fourteenth Court of Third Court disa- enhancement statute. DWI offenses that “two misdemeanor Legislature’s failure noting greed, "[l]he day as becoming on the same function final 67011-l(e) language it employ in art. for DWI enhancement least, 12.42(d) is, sug- at the used in purposes.’’ Id. at 437. The Fourteenth that the second did not intend gestive that it special Legislature placed concluded driving while intoxi- conviction 67011-l(e), in Article enhancement scheme committed necessarily be for an offense cated general enhancement excluded the final." became after the ad in order to scheme of Section Peck, at 812. widespread de misery human dress "the Id. at drunk drivers.” struction caused Next, from Section on this basis. ed, while intoxicated Arti- plain language we will consider the degree. becomes a 49.0903). cle Penal Felony driving while intoxicated offenses are tried in ei- reading plain lan Our ther the district courts or the criminal guage of Section also indicates it district courts. Tex.Code Crim. PROC.art. punishment- should not be viewed as a 4.05. enhancement similar to statute intoxication-related of 12.42(d). interpreting In the course of fenses, they whether are felonies or misde language of Section we will at meanors, establishing serve the tempt “to effectuate the collective intent of qualifies whether the instant offense legislators Boykin who enacted” it. felony driving prior while intoxicated. The State, 782, (Tex.Crim.App. 818 785 S.W.2d intoxication-related offenses are elements 1991). of the offense of while intoxicated. states that expressly Section They felony define the offense as a and are the a commit- prove State must part admitted into evidence as prior ted two offenses related to proof during State’s its case-in-chief the vehicle, aircraft or watercraft guilt-innocence stage of the trial. 42 intoxicated.3 language The statute’s Dawson, E. Dix & ROBERT0. GeoRGe Texas unambiguous. is clear and 49.09 Section PRACTICE: CRIMINAL PRACTICE AND PROCE- requires only showing a that a defendant (1995 38.73, Supp. 651-652 & DURE has been convicted twice before of- 1999). a operation fenses of motor contrast, any prior In can use the State vehicle, aircraft or while intoxi- 12.42(d) felony conviction under Section to writing Legisla- cated. this potential range increase the had to say ture did not the convictions already for someone convicted of a order, they in specified occur a or that prior felony convictions do not deter- to transac- needed arise from in

mine whether the case will be tried only The Legislature expressed tions. felonies, county district court or court. As prove must a defendant had State in already those cases were set the district intoxication-relat- prior convictions for prior felony are courts. ed offenses. It is not for this to add pun- not admitted into evidence until the State, or subtract from that. Coit v. 808 stage ishment of a trial after the defendant 473, (Tex.Crim.App.1991); 475 already primary has been convicted of the cases cited therein. felony offense. Michael B. Chaelton, 49.09, they At passed the time Section Texas Law Texas Practice: Criminal language Legislature was aware of the (1994 29.4, Supp.1998). at 338 & statute and their of the habitual offender conclude that requirement must State enhancing purpose convictions serve the felony previous “the conviction second whereas the the offense Section subsequent for an that occurred to prior convictions used Section having become previous the first punish- enhancing serve the 12.42(d). distinguishable ment.2 final.” See Section Tex. Penal pertinent part, "If it Appeals con 3. The statute sets out in 2. Several Courts of have also cluded that the convictions are used in of an offense under is shown on the trial jurisdiction Section to establish person Section are not used for enhancement. v. Tamez two times of an has been convicted State, 845, (Tex.App.-San 980 S.W.2d An a relating to the of motor State, 1998); Hampton tonio v. 977 S.W.2d _, the offense is 467, 1998, pet. (Tex.App.-Texarkana degree.” ref'd); and Maibauer v. 968 S.W.2d 1998, ref'd). (Tex.App.-Waco pet. charge DWI to be enhanced include Legislature chose neither to to convic- language nor make reference alcohol-related similar his two 12.42(d). legisla This indicates tions, though those convictions arose even sequential tive resolve not include a incident. Gibson v. from the same DWI requirement proof required in the for State, (Tex.App.-Dallas 972 S.W.2d 148 in Section showing the granted appel- pet. granted). We Jones discretionary Cf. review on petition lant’s this (Tex.Crim.App.1998)(wherein ground “[t]he Legislature’s decision to Court cited holding that Penal Code erred language include from Tex.Code Crim. 49.09(b)[’s]requirement person hav- proof into Proc. art. 18.15 Article 13.08 previously convicted two times ing been carry forward legislative resolve a motor vehicle while an offense Arti language from Article 13.15 into has intoxicated includes 13.08.). cle involuntary convictions for man- that Section Accordingly, we conclude based on deaths out slaughter does not while intox- se- convictions occurred Today majority affirms icated.” Instead, quentially. must show Appeals. decision of the Court of previously was twice convicted of majority Ap- Both the and the Court for offenses related to a motor operating by peals reject appellant’s contention se- vehicle, aircraft, or intoxi- watercraft while § with Tex. lectively contrasting interpretation This the text of cated. of 12.42(d), § provides which for Pen.Code plain should have been repeat felony of- penalties enhanced for Boykin, legislators voted on it. that fenders. Both conclude because at 785. hold the Fifth S.W.2d 12.42(d) § requires that one two Appeals correctly Court of determined occurred prior convictions must have after in appellant’s State did not err relying on final the other conviction became involuntary two previous convictions for require- § has no such because manslaughter based on two deaths ment,1 prohibit the latter en- out act in order to by DWI-related con- hancement degree instant offense awas third victions, even when those convictions arise Ante, 695-696; from the same incident. Appellant’s ground for review is over- at 149. Gibson judgment Ap- ruled. The of of the Court issue, However, in focusing on this peals is affirmed. majority of JOHNSON, J., dissenting filed a ignored very different terminolo- opinion, MEYERS, J., joined. in which statutes, in terminol- gy employed the two claim. Tex. ogy supports appellant’s which JOHNSON, J., dissenting filed a provides: Pen.Code MEYERS, J., opinion, joined. in which a felony If it is shown the trial of on I respectfully dissent. jail felony offense other than a state intoxicated, of while en- convicted 12.35(a) punishable under Section that invol- hanced convictions for previously been the defendant has final- manslaughter. untary See Pen.Code ly felony offenses, convicted §§ manslaughter 49.04 & 49.09. The two previous felony conviction is the second from incident convictions arose the same subsequent an offense that occurred involving Gibson’s the first vehicle while intoxicated. The Court final, it on conviction he shall be Appeals held was not error become Chapter quential address the is- agree does not convictions does not I convictions, presented for sequential of se- sue review. but a discussion Thus, punished by imprisonment App.1996). using the institu- phrase Department tional division of the Texas “convicted two times of an offense life, any ...,” Criminal Justice for or for legislature meant presumably years term of not more than 99 or less something “two different from offenses.” years. than 25 context, Taken its natural the use supports appellant’s word “times” added.) conten- Emphases The emphasis is on 49.09(b)’s tion that focus is on defen- behavior; repeated two convictions from dant’s DWI incidents or transac- one event do not invoke the enhancement through tions which he was convicted. penalties. College See, e.g., Webster’s II New Dic- 49.09(b) provides: Tex. Pen.Code (1995) as, (defining tionaRY “time” If it is shown on the trial anof alia, occasion”). “an inter arguendo, Even assuming, the has been convict- matter,2 ambiguous on this its ed two times an legislative history supports operating a motor vehicle while in- (and claim. Section 49.09 is the current toxicated, an offense of an air- modified) version of Tex.Rev.Civ. craft while anor offense of Stats. 6701i-l(e), similarly provided art. operating watercraft while for increased based on the the offense is a of the third de- language, “pre same that a defendant has gree. viously been convicted two or more times added.) (Emphasis While the [driving See Act of intoxicated.]” specified previous “felony the use of con- 16,1988, R.S., 303, 3,§ Leg., 68th ch. §in very victions” it used the (subse 1983 Tex. Gen. Laws phrase different “convicted two times of quently repealed). analyses by Bill relating § ...” in In ig- 17, 1983, Study Group May House on difference, noring majority this has not May indicate that the focus of the simply interpreted plain language (e)) (including amendments to art. 6701Z-1 Ante, as it claims to have done. repeat A was on DWI section- Instead, offenders. 696-97. it has rewritten that by-section analysis shows that the various statute to read: provisions punishments for increased If it is shown trial of an offense on nd DWI,” DWI,” “1st “2 and “3rd and Subsequent Finally, competing DWI.” has previously been convicted House and Senate versions of the amend two times of an offense punishments ments lists the increased operating of a motor nd rd DWI,” DWI,” “1st “2 and “3 DWI.” intoxicated, an offense of operating an aircraft while plain language legisla- Both the an operating or offense of history tive indicate that focus the offense is a upon previ- number degree. incidents, ous convictions related to DWI previous DWI inci- but on the number of contrary our approach This is to statu- resulting in conviction. This same dents tory When the interpretation. manner, §in which philosophy is reflected has used different terms in such a convictions, speaks in terms of presume we that it intended those terms to meanings. Tigner requires sequence v. but of events such have distinct See (Tex.Crim. are invoked provisions 544-545 enhancement approach statutory interpreta- only exceptions applica- 2. to this rule are if Under our tion, plain language we look to the literal text for the mean- tion of the statute’s would lead ing ordinarily give consequences Legislature we to absurd intended, plain meaning. Boykin possibly or if the effect to that v. could not ambiguous. (Tex.Crim.App.1991). plain language Id. only by repeated incidents of behavior. bad case, appellant had one

In the instant which his two

DWI incident on Therefore, based.

convictions were falls apply. Appellant 49.09(a), provides for en-

under

hancement based on convicted time of

“previously been one of a mo- Because

tor vehicle while intoxicated.” otherwise, majority holds I dissent.

Bobby BERRY, Appellant, of Texas. STATE

No. 894-98. Criminal of Texas.

Case Details

Case Name: Gibson v. State

Court Name: Court of Criminal Appeals of Texas

Date Published: Jun 30, 1999

Citation: 995 S.W.2d 693

Docket Number: 1267-98

Court Abbreviation: Tex. Crim. App.