Johnson v. State

in Davis In the of our decision directing a wake to a writ of mandamus entitled Court, clear prior of this it is statutory under decisions comply party official with certification, as the ones circumstances such and we ex- requirements arise, are candidates applicable in this case un- tended the deadline otherwise against party mandamus relief party allow entitled to the Election Code to der carry fail to out their officials who perform his duties. 980 S.W.2d official not trans- Davis decision does Secretary duties. The 584. did mandamus authority into late a directive Secretary authority had no State. accept filings. The late Secretary of State filing a late until the deadline had accept simply empowered Secretary of State by law. also a court of See been extended so. to do Hannah, LaRouche (Tex.1992) (declining to issue writ manda- reasons, join the For cannot these State). Secretary against

mus opinion. Court’s no this case

There is difference between Davis there has been a

and the case. Until party official failed to

determination that the statutes,

comply and that all the with requirements for the of ex- issuance

traordinary present, relief mandamus re- are court, by be much less

lief cannot issued Secretary through It State. JOHNSON, Appellant, Pershing John extraordinary of mandamus that the measure deadlines the Election Code were extend- has fit to ed Davis. The seen Texas, Appellee. The STATE grant authority to the expressly mandamus appeals compel No. courts of and to this Court to 757-95. duties, Tex. perform election officials to their Court of Criminal 273.061, § Elec.Code authority but that Banc. En Secretary given

not been to the of State. The kinds of that must be determinations June historically in cases of nature have made Secretary been made courts. The encouraged, should not much less

State

required, to determine when court would issued mandamus and to then sua

sponte accept untimely filings.

The Court to draw distinction seems here,

between this ease and Davis because committee chair did file certificate proper Secretary’s form dead- before candidates, certifying Sep- which was

line for 11, fifty-five days

tember election.

Tex Elec.Code § But 161.008. the missed Secretary of

deadline was not the State’s

deadline; September it was the deadline party

applicable to officials such Rothstein of the Texas Election

under section 145.037 filing 10 came too

Code. Secretary place Bird

late for the of State It to see these

on the ballot. is difficult how distinguish

facts this case Davis. Saum, Moran, Nasworthy

Patricia Tom Houston, appellant. Greene, Attorney,

Steve Assistant District Liberty, for State.

OPINION ON APPELLANT’S PETITION FOR DISCRETIONARY REVIEW PER CURIAM. grams delivered over 400 of a jury

controlled substance 1984. A convict- him ed of that offense but this Court and reversed remanded the case for reas- State, Johnson v. punishment. sessment of S.W.2d 668 While appeal pending he Virginia was convicted in another ease and twenty years sentenced to of confinement. case, On remand in 1993 for this Texas sixty trial court assessed confinement, along with a fine. $5000 recites that the Texas sen- Virginia tence is to operate. appeal, appellant ceases to On ar- gued although the 1987 amendment to 42.08(a), V.A.C.C.P., permitted cumu- sentence, oper- lation with an out-of-state its ation in his Ex case violated the Post Facto Clause of the United be- States Constitution he cause committed the offense be- fore and the 1987 the statute version in effect at the time of the offense did not allow cumulation with an out-of-state sen- rejected Appeals tence.1 The Court of 1. For. a about the discussion substance and cir and concluded that the 1987 amendment changed cumstances of the 1987 amendment to Art. the law and allowed Texas 42.08, (Tex. see Cook v. 824 S.W.2d 634 be cumulated with federal and sen out-of-state ref’d). App. pet. petition In Cook the tences. This Court refused the for dis — Dallas opin history cretionary Court of traced the of Art. 42.08 in Cookwith a disclaimer review retroactively pun increases the judgment. Clause if it contention affirmed (Tex. Dept. acts. ishment for criminal Johnson California -, 1995). granted appel- Corrections App. —Beaumont 1597, 1601, -, petition discretionary lant’s review to ex- An ex facto law makes holding. amine than punishment more severe measure of claim, rejecting post ex facto Ex Post that of earlier statute. Id. The the appeals peremptorily court of concluded the prohibits application the of Facto Clause State, opinion this Court’s in Grimes v. that already punitive crime new measure a (Tex.Cr.App.1991), controls. the A in Id. retroactive increase committed. In Chimes this Court held that Article post ex “quantum punishment” of violates the 44.29(b), Y.A.C.C.P., providing a remand Id., at-, 115 514 U.S. facto clause. following punishment for re-assessment of 1602, 131 at L.Ed.2d at 595. judgment of occur the reversal a error only phase, in the ring punishment Supreme Court The United States in Ex applied violation of the Post Facto single iden has not a formula for articulated Id., Appellant argues at that tifying changes a suffi legislative that have statute, procedural Grimes involved a while the cient effect on to fall within present case the statute increases at Ex 514 U.S. Post Facto Clause. punishment retroactively, is impermis which 1603, -, at 597. at 131 L.Ed.2d 115 S.Ct. sible under the Ex Post Facto Clause. We question legislative adjustments The of what agree. Facto a matter violate Ex Post Clause is reviewing degree. A must deter- of Id. court (1) post punishes An ex a facto law statutory produces mine whether previously crime an act committed which was of increasing of measure a sufficient risk (2) done, changes punish innocent when to the act. Id. punishment attached criminal greater punishment and ment inflicts a than only A amendment that creates the law attached to a criminal offense when of speculative possibility most attenuated committed, (3) deprives person charged increasing producing prohibited of effect of any with a crime defense at the available not violate the measure of does the act time was committed. Collins v. Ex Facto Clause. Id. Post Youngblood, 497 U.S. 2719, 2715, 30, (1990); 111 L.Ed.2d 38-39 Ex Long held ago, the Texas Court of Hallmark, (Tex. 672,

parte 674 statute, per which Cr.App.1994). impli The issue ease sentences, a defendant mitted consecutive definition, concerning pun cates the second the offense the effec who committed ishment. post facto. the statute was ex tive date of State, 262, 264-65 post operation Tex.Ct.App. ex The facto a statute Baker v. (1881); State, Tex.Ct.App. involving punishment expressed has been Hannahan ways. variety engages a court In each ease the ‘When previ post analysis, required facto should the sentence when [it be] ex con com solely assigns expired. defendants cerned with whether a statute ous sentence offenses, in the disadvantageous penal criminal or con mitted which resulted more sentences, before sequences place to an second the consecutive act than did law in of Crimi the act the effective date Revised Code occurred....” Grimes Procedure, supra, permitted at which (quoting Weaver v. nal Gra ham, 13, 101 Prior to the enact 29 n. 964 cumulative sentences. (1981)). An n. 23 n. 13 ex ment of Article consecutive Ap Court post facto law makes more burdensome the were not allowed. Texas more peals its that because Article 800 was a crime after commission. held at the offense Ex the law time Id. A statute violates the Post Facto onerous than appeals properly amend ground. construed the ion on another Cook in Cook ment, us is not before S.W.2d 11 Neither and therefore issue today. questions the State whether the court of nor committed, at 336. it was facto when S.Ct. at He was applied year committed on offenses before its sentenced to one confinement anoth- Baker, 264-65; adoption. Tex.Ct.App. charge, consecutively at er to be served with Hannahan, Tex.Ct.App. Supreme opin 666. The the other sentences. Id. The Court specify ions these observed total of cases do that this was a nine holding grounded imprisonment. the ex Id. defendant was I, sentenced, prohibition § dangerous special in Article 10 of the as a federal offender constitution, I, § calling in Article 16 of the Texas under a federal statute for increased Constitution, terms, punishment, ten-year inor the common law. Never two theless of an concurrently are indicative attitude that served with the other sentences. Id., to run one sentence with anoth 101 S.Ct. at impose greater punishment Supreme er is to a than if L.Ed.2d at 336. Court com- mented, concurrently. special run dangerous sentences were In “The offender well, regarded charge in contexts as courts have and sentences thus resulted addi- Id., punishment only year.” order that a run tional of about a sentence 122-23, 430, punish with another as an enhancement of 449 U.S. at 101 S.Ct. at 66 suggests ment. Supreme L.Ed.2d at 336. This recognized Court has that consecutive sen- example, For a pro defendant’s due tencing punishment. increases rights if cess are after a violated successful appeal the defendant resentenced vindic recently purpose This Court examined the tively response in to defendant’s asser of a providing statute consecutive sen- right appeal. tion of his North Carolina tences. Basden v. 897 319 S.W.2d Pearce, 711, v. 89 395 S.Ct. 23 U.S. (Tex.Cr.App.1995). construing In (1969). analysis Part of the 42.08(b), that the in- we determined obvious under such a claim is whether the defen harshly of “to tent the statute was more dant’s increased on resen- punish” not deterred inmates who are Pearce, 725-26, tencing. U.S. at Id., committing prison. in at crimes at at 23 L.Ed.2d 669-70. This plain meaning This Court held of that the requiring Court has that an order never held statute, defendants, argued by “would upon resentencing consecutive sentences fol permitting lead to in- the absurd result lowing were sentences that concurrent when pun- mates to commit without fear of crimes originally assessed vindictive demonstrates length quoted ishment.” Id. We from the However, recognized pos ness. have we brief, “any argued State’s that which inmate Mullins, sibility parte that it does. Ex serving lengthy who is a sentence and re- S.W.2d Mean ceives additional sentences additional while, actually federal courts held that pun- crimes will never while incarcerated be cumulating originally that sentences were ished ... serve additional [and] will never punishment, concurrent constitutes increased time after the first sentence [consecutive] triggering thus Carolina v. North Pearce Id., explained n. 4. have received.” Markus, analysis. v. United States 603 F.2d plain in how certain circumstances mean- (2d Cir.1979); States, Barnes United ing punish- of the lead to “no statute would (D.C.Cir.1969). 419 F.2d 753 Id., prison ment for the first offense.” Consequently, interpreted we Arti-

Additionally, Supreme States n. 6. the United 42.08(b) way “adequately punish” in Court dealt effect of cle with the consecutive DiFrancesco, prison prior in sentence. sentences United States commission Basden, Id., Thus, at 322. in this Court recognized es- The defendant was sentenced to that cumulation sentences confinement, in eight years sentially punish- increase and five constitutes an Id., concurrently. be served 449 U.S. at ment.2 vacated, (5th Cir.1954), argues

2. The State of Article F.2d 619 that (1955) (remanded 42.08(a) does not violate the Ex 99 L.Ed. 1274 cause moot). case, Clause, Lee, citing that Post McDonald v. district court to dismiss as Facto of- the Texas say Appellant was convicted of disingenuous, It would During his pendency of in 1986. least, fense in to hold constitutes that what conviction, appellant was appeal from this contexts creased in the above Virginia on of another offense convicted punish does not also constitute increased 21, 1987, for which he received analysis. purposes ment for serving the 20-year sentence. to allow We must therefore conclude pris- Virginia in the Texas 20-year authority cumulation of under finally sen- system when 1993 he was time provide that did not at the a statute so the 1986 Texas conviction. tenced for Facto of the offense violates the Ex Post cumulated trial court by requiring the Texas sentence operate. Virginia sentence ceases to when the 16,133 judgment number cause Virginia offense appellant committed the Had Liberty from the 253rd District Court of question no the trial there is County is reformed the cumulation to delete could have cumulated the sentence court Ap- order. The of the Court appellant re- that offense with the sentence affirmed, as LaPorte peals is reformed. Cf. for the 1986 Texas offense under ceived (Tex.CrA.pp. Legis- scheme in effect. The 1992). VAC.C.P., 42.08(a), lature amended an out-of- in 1987 to “allow cumulation with Cook, state sentence.” See 824 S.W.2d McCORMICK, Presiding Judge, 641—43. dissenting. present a situation This case does matter, practical I dissent. As a the ma- already serving appellant was concur- where

jority opinion makes a sentence defendant’s Legislature re- sentences then the rent for an offense committed before consecutively. him to serve them Nor quired 1,1987, off limits to involv- cumulation orders where the does this case a situation ing sentences for committed in anoth- crimes actual sen- increased course, er state. Of this assumes that Texas as, appellant serving is such for exam- tence can be sentences cumulated with out-of-state appellant ple, requiring to serve majority issue sentences —an the decides to the maximum he could in this duck ease.1 when he committed the offense received (Tex.Cr.App.1992). Cook soldier was court-martialed and sentenced. sentence, 42.08(a), serving that While he was court-mart- held the 1987 amendment to Article V.A.C.C.P., “changed ialed and sentenced another offense. After the and allowed Texas for law assessed, his first sentence was he was and out- but before sentences to be cumulated with federal offense, Cook, Army court-martialed the second sentences.” See of-state adopted regulation requiring majority says the the second sen- that whether 641-43. The interrupt Appeals "properly sen- in Cook construed the tence the service of the first Court of regulation, prisoner today.” tence. Under the after the is “not us amendment” sentence, the served second service of the first disagree. necessary I It is to address was to Court resume. The Fifth Circuit Appeals properly construed the Court of Cook Appeals regulation in- held that did not the addressing the Fed- the 1987 amendment before offense, the earlier crease for the question the Court addresses eral constitutional v. and it had no ex facto effect. McDonald here, because, Appeals the did not if Court of Lee, F.2d at 625. amendment, it properly construe the then However, po- unnecessary the Fifth the Circuit addressed the Federal would be to address Army question. tential ex of the I would affirm constitutional sentence, But, regulation Appeals’ on the not on the sec- first in Cook. since Court of decision Furthermore, issue, might argue Fifth Circuit’s their majority ond sentence. ducks some holding opinion merely advisory pending opinion is inconsistent with this Court’s case is question presented in Basden. in Cook. In resolution of the words, Appeals did not if Court of matter, opinion preliminary majority properly to Article construe 1987 amendment 1. As 42.08(a), wasting adopt holding majority their time Court declines Dallas addressing the Federal constitutional issue in Cookv. S.W.2d 641-43 ( ref'd, 1991), Tex.App. pet. Cook v. case. — Dallas years. clearly proposition accept This would violate the Ex difficult to that our See, e.g., founding adopted Post Facto Clause. Miller v. Flori- fathers and the voters who da, 428, 433-35, 482 U.S. 107 S.Ct. intending did so the Ex Post Facto Clause (1987); 96 L.Ed.2d 351 Weaver Gra- sentences for criminals to serve concurrent ham, 24, 24-28, 450 U.S. 962- S.Ct. multiple crimes commit. Lan- Cf. (1981); Lindsey 67 L.Ed.2d 17 v. Wash- Appeals, 847 v. Fourteenth Court ford 397, 400-02, ington, 301 U.S. (Tex.Cr.App.1993) (primary S.W.2d (1937). 799, 81 L.Ed. 1182 No one claims the interpretation goal in the of a constitutional appellant actual sentences received for his provision give is to ascertain and effect to the multiple crimes violate the Ex Post Facto it). adopted apparent intent of the voters who Appellant’s Legis- claim is that the I would hold the Ex Post Facto Clause does legal him require lature cannot to serve these speak presented the circumstances consecutively. Lee, this case. See also McDonald (5th Cir.1954), vacated, F.2d But, the issue this case is whether the (1955). 948, 75 99 L.Ed. 1274 42.08(a) “changes 1987 amendment to Article greater punish and inflicts a respectfully dissent. ment than the law attached to a criminal (Emphasis Sup when committed.” offense WHITE, KELLER, MANSFIELD and plied). Youngblood, See Collins JJ., join this dissent. 2715, 2719, The 1987 amendment to Article 42.08(a) changed has not greater punishment

inflicted a

multiple crimes than what the law “attached appellant

to” them when committed them. only required appellant consecutively. legal

to serve his appellant being harshly”2 pun That “more CANTU, Appellant, Oscar ished, because he has to serve his sentences is, concurrently, rather than therefore, post irrelevant to the ex anal facto Texas, Appellee. STATE ysis. Dept. See Corrections v. California U.S.-,-fn. 598-95, Nos. 599-95. (1995) 1602 fn. 131 L.Ed.2d 588 Court of Criminal (focus inquiry is not on of the ex facto En Banc. prisoner’s an affects a amendment opportunity advantage provi to take Sept. ” early on whether sions release’ but such alters the definition of criminal by penalty

conduct or increases the which a (Emphasis Original). punishable).

crime is is, effect, breaking majority opinion ground adding another element

new here 200-year-old, well-settled definition of law contained Collins. Collins, 497 U.S. at See Bull,

2719; Dall. Colder v. (1798) J.). And, (Chase, it

L.Ed. find (Tex.Cr. any punishment for offense or would not receive 2. See Basden v. offense, Basden, upon prison depending the se- App.1995). the first the defendant invited Basden, 42.08(b), V.A.C.C.P., verity prison See of the second offense. Court to construe invitation prisoner at 322. We declined the that a would either not such a manner 42.08(b) committing prison to construe Article in this manner. a second be deterred

Case Details

Case Name: Johnson v. State

Court Name: Court of Criminal Appeals of Texas

Date Published: Jun 5, 1996

Citation: 930 S.W.2d 589

Docket Number: 757-95

Court Abbreviation: Tex. Crim. App.