Craig Ronald HARRISON, Appellant, v. The STATE of Texas, Appellee.
No. 01-95-01509-CR
Court of Appeals of Texas, Houston (1st Dist.).
July 24, 1997.
950 S.W.2d 419
Before TAFT, MARGARET GARNER MIRABAL and WILSON, JJ.
In applying a nearly identical pollution exclusion clause, the San Antonio Court of Appeals has held that one can “occupy” a site without owning or holding any other interest in the premises so long as he or she has the right to occupy such portions of the property as are necessary to perform the obligations he or she has assumed. See id. at 722. Under this definition, we hold that KCI “occupied” the property upon which it was performing operations pursuant to its contract with NGP. Therefore, we hold that subsection f(1)(a) excludes coverage for the spill.
2) Subsection f(1)(d)
KCI argues that the pollution exclusion clause is ambiguous and should be interpreted to provide coverage under subsection f(1)(d). KCI‘s argument is based on its contention that because subsection f(1)(d) specifically excludes coverage for situations in which the insured brings the pollutants onto the premises, it provides coverage for situations in which the insured does not bring the pollutants onto the premises. We disagree.
Subsection f(1)(d) applies to “any premises, site or location on which any insured or any contractors or subcontractors working directly or indirectly on any insured‘s behalf are performing operations.” We agree with Highlands that this subsection merely expands the pollution exclusion to cover “any premises,” instead of only premises “at any time owned or occupied by, rented or loaned to” an insured, in situations where an insured undertakes certain designated activities. As such, we hold that the “plain, ordinary, and generally accepted”2 meaning of subsection f(1)(d) is that it does not grant coverage in this situation.
3) Summary
Because we hold that subsection f(1)(a) affirmatively excludes coverage in this situation and that subsection f(1)(d) does not grant coverage, we hold that the trial court erred in denying Highlands‘s motion for summary judgment and in granting KCI‘s counter-motion for summary judgment. Because we hold that, as a matter of law, the pollution exclusion clause excludes coverage in this situation, we also hold that the trial court erred in awarding KCI damages and attorney‘s fees by granting KCI‘s second motion for summary judgment. Accordingly, we sustain Highlands‘s fifth point of error.
CONCLUSION
Having sustained Highlands‘s fifth point of error,3 we reverse the judgment of the trial court and render judgment in favor of Highlands.
Cynthia Cline, Houston, for Appellant.
John B. Holmes, Julie Klibert, Houston, for Appellee.
OPINION
A jury found appellant, Craig Ronald Harrison, guilty of theft. Appellant pled true to enhancement paragraphs alleging two prior convictions for aggravated robbery. The trial court found the enhancements true and sentenced appellant to 40-years confinement. This case raises the issue of whether an appellant who pled true to enhancement paragraphs may challenge on appeal the sufficiency of the evidence proving those enhancement allegations. We also address whether trial counsel rendered ineffective assistance by allowing appellant to plead true. We affirm.
Plea of True Waives Sufficiency Challenge
In point of error one, appellant contends the evidence was insufficient to support a finding of true to the first enhancement paragraph in the indictment. Appellant argues the judgment from the pen packet shows on its face that appellant appealed the conviction, thereby undermining proof of finality.
Appellant relies on Tucker v. State, 811 S.W.2d 694 (Tex. App.—Houston [1st Dist.] 1991, no pet.), in which this Court found insufficient evidence on facts indistinguishable from those in this case. The State acknowledges Tucker, but claims it conflicts with a long line of cases holding that a plea of true relieves the State of its burden to prove the enhancement allegations.
The record shows appellant initially entered a plea of not true at the punishment hearing. He proceeded to stipulate to the truth of the enhancement allegations, however, as well as to being the same person who had California convictions for second degree robbery (two offenses), second degree burglary (four offenses), grand theft, drive or take vehicle (two offenses), and possession of stolen credit cards. The State then introduced pen packets from Texas and California concerning appellant‘s prior convictions. Appellant stated affirmatively he had no objection to the pen packets and wanted to proceed by entering the stipulations. In the Texas pen packet, the judgment reflecting the conviction in the indictment‘s first enhancement paragraph ended with an addendum stating notice of appeal had been given. After the parties closed, the trial court reexamined appellant as to his plea and appellant changed his plea to true. Based on appellant‘s plea of true, the trial court found both enhancement paragraphs true.
In Harvey v. State, the Court of Criminal Appeals cited a line of cases for the proposition that a plea of true removes the State‘s burden of proving enhancement allegations. 611 S.W.2d 108, 111 (Tex. Crim. App. 1981).1 The court thereby acknowledged the
This Court has followed Harvey in Bonner v. State, 728 S.W.2d 921 (Tex. App.—Houston [1st Dist.] 1987, no pet.), and Axelrod v. State, 764 S.W.2d 296, 302 (Tex. App.—Houston [1st Dist.] 1988), dism‘d as improvidently granted, 789 S.W.2d 594 (Tex. Crim. App. 1990). In Bonner, the sufficiency challenge was the State‘s failure to prove the enhancement conviction was final. 728 S.W.2d at 923. Of what the State‘s proof consisted, if anything, is not set out in the opinion. Id. We applied the rule stated in Harvey and held the plea of true waived the sufficiency challenge, despite further complaint that the indictment did not allege Bonner had been finally convicted; the indictment only alleged appellant had been previously convicted. Bonner, 728 S.W.2d at 923. In Axelrod, the sufficiency complaint appears to have been that alleging only that Axelrod had been previously convicted of a misdemeanor did not rule out the possibility it was a Class C misdemeanor, too low a degree for use to enhance. See Axelrod, 764 S.W.2d at 302. The proof was unknown, because no statement of facts of the punishment hearing was brought before us. Id. While Harvey is noted as prevailing law in Axelrod, the decision turned on Axelrod‘s failure to produce a sufficient appellate record. Axelrod, 764 S.W.2d at 301-302.
In Tucker, this Court set out the facts in such detail that it is clear Tucker not only entered a plea of true, but stipulated to both convictions. 811 S.W.2d at 695. Thus, the facts are indistinguishable from those in this case. No mention of the well-settled rule of Harvey was made, however, and the opinion assumed it was the State‘s burden to prove the enhancement paragraphs, despite the plea of true. Tucker, 811 S.W.2d at 695-96. Instead of recognizing Harvey, we stated that the holding in Tucker was controlled by Spiers v. State, 552 S.W.2d 851 (Tex. Crim. App. 1977). We noted that, in Spiers, even though the defendant “admitted” two prior convictions, the burden was on the State to prove the convictions were final. Tucker, 811 S.W.2d at 696. Apparently, in Tucker, an admission to two prior convictions in Spiers was equated with a plea of true and stipulation to evidence as to prior convictions. Were that a true equation, Tucker would be sound.
In Spiers, the Court of Criminal Appeals stated, “Although appellant admitted these two prior convictions, the burden was upon the State to prove that they were each final convictions.” 552 S.W.2d at 852. Unfortunately, the facts are so sparse in Spiers that the plea is not indicated. The short opinion in Spiers does not even reveal at what point during the trial the admission of two prior convictions was made. Only by assuming that the admission in Spiers was his plea of true at the punishment stage would Spiers control Tucker.
The difference between an admission and a plea of true is illustrated in Anthony v. State, 794 S.W.2d 526 (Tex. App.—Corpus Christi 1990, pet. ref‘d). Anthony entered a plea of
Tucker also cited Sanders v. State, 785 S.W.2d 445 (Tex. App.—San Antonio 1990, no pet.). Sanders stands for the proposition that even though a defendant pleads true to an enhancement allegation, the record may affirmatively reflect that the prior conviction actually was not final. See id. at 448. In Sanders, the alleged prior conviction was one for which Sanders was assessed probation; the probation was not revoked (thereby making the conviction final) until after the trial court had sentenced Sanders to an enhanced punishment based on having found the prior conviction final. See id. Under these conditions, the Fourth Court of Appeals considered the error, and reversed for a new punishment hearing, in the interest of justice. Id. at 448-449.
The difference between Sanders and this case is that here there is no affirmative showing appellant‘s prior conviction actually was not final. An entry on a judgment or sentence that a conviction was appealed only establishes that, at the time of that entry, the conviction was not final. It does not affirmatively show, as in Sanders, that the conviction actually was not final prior to commission of the primary offense. Sanders represents a very narrow exception, which does not apply here, to the Harvey rule that a plea of true to enhancement allegations establishes their sufficiency.
We conclude that, in Tucker, we erred in equating a defendant‘s admission to prior convictions with his plea of true to enhancement paragraphs, thereby holding the case was controlled by Spiers. Fortunately, Tucker does not appear to have been followed as to its erroneous aspect.
Only two cases have cited Tucker. See Walker v. State, No. 01-95-00264-CR (Tex. App.—Houston [1st Dist.] October 3, 1996, n.p.h.) (not yet published); Gonzales v. State, 831 S.W.2d 491, 493 (Tex. App.—Houston [14th Dist.] 1992, pet. ref‘d). Walker cited Tucker for the proposition that the State must prove finality when it introduces a judgment showing the conviction is on appeal. Walker, slip opinion at 6-7. There is no mention in Walker about what plea was entered. In Gonzales, a plea of not true was entered. Gonzales, 831 S.W.2d at 492. Tucker was cited for the proper remedy when the State fails to meet its burden of proving finality. Gonzales, 831 S.W.2d at 493.
Under these circumstances, we overrule Tucker to the extent it did not follow the rule that a plea of true to enhancement paragraphs waives a challenge to sufficiency of the evidence on appeal. We hold that appellant‘s plea of true precludes his complaint about insufficient evidence supporting the first enhancement paragraph. Accordingly, we overrule appellant‘s first point of error.
Ineffective Assistance of Counsel
In point of error two, appellant contends trial counsel was ineffective during the punishment phase of trial by stipulating true to the enhancement paragraphs contained in the indictment. Appellant asserts if appellant had pled not true, the State‘s evidence would have been insufficient to prove the first enhancement paragraph. Appellant claims harm because the range of punishment would have been much lower (two to 20 rather than 25 to 99 or life).
The standard for determining effective assistance of counsel at the punishment stage of trial is whether trial counsel was reasonably likely to render, and whether counsel reasonably rendered, effective assistance of counsel. Ex parte Cruz, 739 S.W.2d 53, 57 (Tex. Crim. App. 1987). Sufficiency of assistance is gauged by the totality of the repre
It is conceivable that appellant could have pled not true, refused to stipulate to any of the matters to which he stipulated, and, if the State had not brought further proof of finality of the first enhancement conviction, appellant could have successfully challenged the sufficiency of the evidence proving his first enhancement paragraph. This assumes the State was not prepared to prove these matters without appellant‘s cooperation. We decline to make assumptions about matters relating to ineffective assistance of counsel that are not firmly founded in the record. See Gamble v. State, 916 S.W.2d 92, 93 (Tex. App.—Houston [1st Dist.] 1996, no pet.).
Accordingly, we overrule appellant‘s second point of error.
Conclusion
We affirm the trial court‘s judgment.
All Justices voted for en banc review.
SCHNEIDER, C.J., and COHEN, WILSON, HEDGES and NUCHIA, JJ., join the majority opinion of TAFT, J.
O‘CONNOR and ANDELL, JJ., join the dissenting opinion of MARGARET GARNER MIRABAL, J.
MARGARET GARNER MIRABAL, Justice, dissenting.
I respectfully dissent.
The majority today is overruling a well reasoned opinion from this Court, Tucker v. State, 811 S.W.2d 694 (Tex. App.—Houston [1st Dist.] 1991, no pet.). In my opinion, Tucker is good law.
In the process of overruling Tucker, the majority is relying on cases that are distinguishable in a material respect: none of the cases the majority relies on include the key component of the State raising the issue of whether a prior conviction was final through evidence put on by the State. In my opinion, if the State puts on evidence that raises an issue about whether a conviction is final, then the State has the burden to go forward and prove actual finality, even though the defendant has pled “true” to the enhancement paragraph.1
The majority does not dispute that, if the record affirmatively reflects that a prior conviction was not final, then the conviction cannot be used to enhance punishment, even though the defendant pled “true” to the enhancement allegation. Such was the holding in Sanders v. State, 785 S.W.2d 445, 448 (Tex. App.—San Antonio 1990, no pet.). Tucker logically extends the Sanders holding to support the conclusion that, if the State puts on evidence that affirmatively shows that a conviction was appealed and therefore may not be final, then the conviction cannot be used to enhance punishment unless the State resolves the issue and shows the appeal has come to an end. Tucker, 811 S.W.2d at 695-96.
Tucker is on “all-fours” with the present case. We have found no other reported case with the same facts. Tucker makes sense. We should follow Tucker.
Accordingly, I would sustain appellant‘s first point of error and remand the case to the trial court for a new punishment hearing.
On en banc review, O‘CONNOR and ANDELL, JJ., join Justice MARGARET GARNER MIRABAL‘s, dissenting opinion.