JOSE OLIVA, Appellant v. THE STATE OF TEXAS
NO. PD-0398-17
IN THE COURT OF CRIMINAL APPEALS OF TEXAS
May 23, 2018
ON STATE‘S PETITION FOR DISCRETIONARY REVIEW FROM THE FOURTEENTH COURT OF APPEALS HARRIS COUNTY
Under
I. BACKGROUND
Appellant was charged by information with DWI. The information contained two paragraphs: the first alleged the commission of the current DWI and the second alleged a prior DWI conviction. The focus of the guilt stage of trial was solely on the first paragraph. The prior-conviction allegation was not read to the jury at the guilt stage, no evidence of the prior conviction was offered at the guilt stage, and there was no mention of a prior conviction in the guilt-stage jury instructions. Appellant was found guilty.
At the punishment stage, the State read the prior-conviction allegation to the jury and introduced evidence of a prior DWI conviction. The jury found the prior-conviction allegation to bе true and assessed punishment at 180 days’ confinement. The judgment labeled Appellant‘s current conviction as a “DWI 2ND” and the degree of offense as a “Class A Misdemeanor.”
The court of appeals held that the existence of a prior conviction is an element of the offense of “Class A misdemeanor DWI.”3 The court reasoned that a fact that elevates the degree of an offense is necessarily an element of the offense and that
II. ANALYSIS
A. The Parties’ Agreed Position
On discretionary review, the parties agree that the existence of a prior conviction is an element of the offense. We, of course, are not bound by any agreement or concessions by the parties on an issue of law.7 The present case illustrates that an agreed outcome on a particular legal issue can sometimes be in both parties’ self-interests. Here, Appellant wants the prior conviction to be decreed an element so that he can prevail on his sufficiency challenge. Such a decree, however, would seem to benefit the State in most cases because it would enable the State to introduce evidence of the prior conviction at the guilt stage of trial instead of having to wait until thе punishment stage.8
The State seeks review here, not because it disagrees with
B. The Statutes and Rules of Construction
Four statutory provisions appear to be directly relevant to the present case. The first is
A person commits an offense if the person is intoxicated while operating a motor vehicle in a public place.10
The second provision is
Except as provided by Subsections (c) and (d) and Section 49.09, an offense under this section is a Class B misdemeanor, with a minimum term of confinement of 72 hours.11
Third is
Except as provided by Subsection (b), an offense under Section 49.04, 49.05, 49.06, or 49.065 is a Class A misdemeanor, with a minimum term of confinement of 30 days, if it is shown on the trial of the offense that the person has previously been convicted one time of an offense relating to the operation of a motor vehicle while intoxicated . . . .12
The last directly relevant provision is found in the Code of Criminal Procedure, in Article 36.01, regarding when prior-conviction allegations may be read at trial:
When prior convictions are alleged for purposes of enhancement only and are not jurisdictional, that portion of the indictment or information reciting such convictions shall not be read until the hearing on punishment is held as provided in Article 37.07.13
In construing the meaning of, and interplay between, these statutes, we give effect to the plain meaning of the text, unless the text is ambiguous or the plain meaning leads to absurd results that the legislature could not have possibly intended.14 Statutory language is ambiguous if it “may be understood by reasonably well-informed persons in two or more different senses.”15 If the statutory text is ambiguous or the plain meaning leads to absurd results, then we can consult extratextual factors, including (1) the object sought to be attained, (2) the circumstances under which the statute was enacted, (3) the legislative history, (4) common law or former statutory provisions, including laws on the same or similar subjects, (5) the consequences
C. Ambiguity
We are faced with two potential constructions of the statutes before us: (1) the existence of the prior conviction is an element of the offense, or (2) the existence of the prior cоnviction is a punishment issue. The initial question is whether we can choose one of these constructions as the only one that is consistent with the language of the relevant statutes. Can we say that the statutory language unambiguously leads to the conclusion that the existence of a prior conviction is an element? Conversely, can we say that the statutory language unambiguously leads to the conclusion that the existence of a prior conviction is a punishment issue? We ultimately conclude that the answer to these two questions is “no“—the statutory scheme is ambiguous.
1. Explicit Labeling
The statute before us does not explicitly say whether the existence of a prior conviction should be litigated at the guilt stage or at punishment. On a few occasions, the legislature has explicitly provided that an issue that increases the penalty for a crime be tried at the punishment stage.19 But such language doеs not appear to be the norm for statutes prescribing punishment issues in noncapital cases. That language is absent from
In Wilson v. State, this Court recognized the Penal Code‘s most obvious and common method of prescribing elements of an offense: prefacing incriminatory facts with the language, “A person commits an offense if . . . .”24 We pointed out that the legislature has created both basic and aggravated offenses in this manner.25 An example of an aggravated offense created in this manner is aggravated assault, which refers explicitly to the statutory crime of assault and to aggravating factors, with all of these prefaced by the phrase “a person commits an offense.”26 An example that involves a prior conviction would be the statute proscribing the possession of a firearm by a felon, which incorporates the prior felony conviction into the preface: “A person who has been convicted of a felony commits an offense if he possesses a firearm . . . .”27
The DWI statutes do not follow this pattern. The phrase “a person commits an offense” appears in
The DWI scheme does provide that, if the prior conviction is shown, thеn the subsequent DWI offense “is a Class A misdemeanor.” In Calton v. State, we suggested that a statute could unambiguously prescribe an element of an offense by setting forth a fact that would increase the degree of the offense.29 We stated that a punishment enhancement “does not change the offense, or the degree of the offense of conviction. There can be no enhancement until a person is first convicted of an offense of a certain degree.”30 We cited no authority for the proposition that a punishment enhancement does not change the degree of the offense,31 and we later suggested in Ex parte Benson, a DWI case, that a prior conviction that merely enhances the offense level would not be an element of the offense.32 This suggestion was based in part on Ex parte Reinke drawing a distinction, with respect to the use of prior convictions, between enhancing the level of punishment, enhancing the level of the offense, and “jurisdictional elements” of the offense.33
We conclude that these seemingly competing statements are dicta to the extent they might be construed to apply to statutory language, such as the provision before us, that differs substantially from the statutory provisions being considered in those cases. The dissent claims that the language in Calton is not dictum because it was used to resolve the case. But language in an opinion can be dictum if it is broader than necessary to resolve the case.34 This is so because a court might not have carefully considered fact situations that vary substantially from the one before it.35 As will be discussed in subpart 4 below,
The dissent contends that we should nevertheless adhere to the language of Calton as an absolute statement of the law, regardless of the wording of a particular statutory provision (as long as the provision is not explicitly labeled a punishment issue). The dissent claims that our jurisprudence would be better served by the wholesale adoption of this language, despite the failure of Calton to cite any authority for it, because such adoption would simplify our analysis by creating an easy, bright-line rule. To the extent this is a plea to adhere to precedent, Calton is not controlling precedent for reasons already discussed. To the extent the dissent relies upon ease of use as a means of construing the statute, our primary duty in construing a statute is to “effectuate the collective intent or purpose of the legislators who enacted the legislation,”36 and there is no neсessary correlation between the ease with which a proposed rule can be applied and whether such a rule accurately reflects the legislature‘s intent.37 We also observe that there is at least one strong countervailing policy consideration against uncritically applying Calton‘s language to construe prior-conviction provisions as elements: the prevention of prejudice arising from informing a jury of extraneous offenses before a finding of guilt—a policy consideration that clearly underlies Article 36.01‘s prohibition against reading certain types of prior-conviction allegations at the guilt stage of trial.38
The dissent also contends that Calton‘s language is consistent with the use of the phrase “degree of offense” in connection with the word “convicted” in the statute that prescribes the requisites of a criminal judgment, Article 42.01.39 We do not find this significant. Subdivision 14 of the first section of Article 42.01 requires thаt a judgment state, “The date of the offense or offenses and degree of offense, for which the defendant was convicted.”40 The dissent contends that the word “convicted” in subdivision 14 signifies the guilt determination rather than encompassing both a finding of guilt and the assessment of punishment. The dissent says that we know this because other portions of Article 42.01 use “conviction and sentence” in contradistinction from one another. We disagree with the dissent‘s assessment in that regard: Our reading of Article 42.01 indicates that the word “conviction” includes both the finding of guilt and the sentence. Subdivision 8 of that statute provides that the judgment shall reflect, “In the event of a conviction that the defendant is
If we take a step back to look at what an offense level does, it becomes apparent that a fact that increases the offense level (the degree of the offense) could logically be either an element or a punishment issuе. The aggravating fact could, as in Calton, be one that makes a person guilty of a separate offense of a higher grade than the base offense without the aggravating fact. But there is nothing inherently illogical about having a punishment issue that increases the grade of the offense. The Penal Code‘s classification of offense levels—ranging from Class C Misdemeanor to Capital Felony—has the effect of largely standardizing punishment ranges. Instead of having to craft a specific punishment range for every offense, the legislature can assign an offense level listed in the Penal Code, with its preset punishment range.
There is a practical difference between an enhancing provision saying that an offense “is” a certain degree and one saying that an offense is “punished as” a certain degree—the former creates an offense level that can serve as the base offense level for further enhancement under general enhancement statutes such as
But this distinction does not mean that the grade of an offense could never be determined by a punishment issue. In fact, the legislature has explicitly created punishment issues that lower the grade of the offense if proven by the defendant: sudden passion in a murder prosecution,48 release
4. “if it is shown on the trial of . . . .”
Another reason it cannot be said that the DWI scheme unambiguously makes the existence of a single prior conviction an element of the offense is that the prior-conviction language in
On the other hand, it is not always true that this phrase (“if it is shown on the trial of“) causes a statute tо prescribe a punishment issue. The felony DWI provision, found in
5. Jurisdictional Nature of Enhancement: Misdemeanor versus Felony
Significantly, the statutory provision currently before us that prescribes the offense classification when there is one prior DWI conviction,
We may not be able to say that
D. Article 36.01 and Other Factors
1. Status as a Prior-Conviction Provision
One observation that can be made about Article 36.01 is that its requirement that certain allegations be read only at the punishment stage of trial applies only to prior convictions.65 When faced with a claim that Article 36.01 was violated by the reading of an “open-container” enhancement at the guilt stage of trial, the San Antonio Court of Appeals remarked that Article 36.01 did not apply because “the open container allegation is not a prior conviction.”66 Before the enactment of Article 36.01, this Court upheld the practice of allowing prior convictions alleged in the charging instrument to be read to the jury before it decided the issue of guilt.67 The legislature‘s obvious purpose in changing that practice was the “prevention of the extreme prejudice which would inevitably result” in announcing the prior convictions before guilt had been decided.68
In calling for prior convictions to be read at punishment, the statute reflects the recognition that prior-conviction allegations are traditionally and uniquely associated with punishment. The United States Supreme Court has pointed to “a longstanding tradition of treating recidivism as ‘going to the punishment only,‘“’69 and “the fact of a prior conviction” is explicitly excluded from the constitutional right to a jury trial in Apprendi v. New Jersey.70 And while Texas is one of a few states that accord a statutory right to a jury trial at the punishment stage, in noncapital cases that right can be forfeited if it is not asserted,71 even though the constitutional right to a jury trial at the guilt stage can be relinquished only if it is affirmatively waived.72 This difference in preservation categories between the constitutional and
From this discussion, we conclude that the status of a statutory aggravating fact as a prior conviction is itself a factor in favor of construing the statutory aggravating fact as a punishment issue. If, on the other hand, the statutory aggravating fact would be part of the circumstances of the offense on trial, that would be a factor in favor of construing the statutory aggravating fact as an element of the offense. This prior-conviction/circumstances-of-the-offense factor is by no means conclusive and can be outweighed by other considerations. In Wilson, for example, the “serious bodily injury” provision involved a circumstances-of-the-offense fact, but it was still a punishment issue for other reasons, which will be explored below.74 And in Calton, the prior-conviction prоvision prescribed an element of the offense due to other considerations that we will discuss.75 At this point, we simply conclude that
2. Various Textual Factors
In Wilson, the serious bodily injury enhancement statute for DWI provided:
If it is shown on the trial of a person punished for an offense under Subsection (c), (d), or (e) of this article that the person committed the offense and as a direct result of the offense another person suffered serious bodily injury, the minimum term of confinement for the offense is increased by 60 days and the minimum and maximum fines for the offense are increased by $ 500.76
We found that two aspects of the statutory language supported a conclusion that a punishment issue was prescribed. First, the statute used the phrase “if it is shown on the trial of,” which we found, for reasons discussed earlier,77 to “compel the conclusion” that the serious-bodily-injury issue was a punishment issue.78 Second, the statute used the phrase “of a person punished for an offense under Subsection (c), (d), or (e).”79 With resрect to this second phrase, we explained that the language “clearly denotes that before” the serious bodily injury enhancement “is to be invoked an individual must be convicted of DWI.”80
In State v. Engelking, we relied upon Wilson to conclude that an enhancement based on the amount of controlled substance being 400 grams or more was a
In Calton, we addressed a prior-conviction provision in the evading-arrest statute.83 The evading-arrest statute provided in relevant part:
(a) A person commits an offense if he intentionally flees from a person he knows is a peace officer attempting to lawfully arrest or detain him.
(b) An offense under this section is a Class B misdemeаnor, except that the offense is:
(1) a state jail felony if the actor uses a vehicle while the actor is in flight and the actor has not been previously convicted under this section;
(2) a felony of the third degree if:
(A) the actor uses a vehicle while the actor is in flight and the actor has been previously convicted under this section; . . .84
Absent from this statute was any phrase similar to “if it is shown on the trial of” or the words “punished” or “punishable.” The statute provided that an offense “is” a state jail felony if the actor uses a vehicle and does not have a prior conviction and “is” a third degree felony if the actor uses a vehicle and does have a prior conviction. We held that the existence of a prior conviction—necessary to make the offense a third degree felony—was an element of the offense.85
The felony repeat offender statute,
Except as provided by Subsection (c)(2), if it is shown on the trial of a felony of the third degreе that the defendant has previously been finally convicted of a felony other than a state jail felony punishable under Section 12.35(a), on conviction the defendant shall be punished for a felony of the second degree.86
In light of our prior discussion, we can see four factors that weigh in favor of
Under our cases, then, the words “punished for,” “punishable by,” or similar language ordinarily mark an enhancing provision as a punishment issue. The status of an enhancing provision as a prior-conviction provision, on the other hand, is some indication of a punishment issue but is not conclusive. But the inference that a prior-conviction provision is a punishment issue becomes much stronger when it includes “if it is shown on the trial of” language, and that inference is further strengthened if it is also true that the provision is contained in an entirely separate section from the section that more obviously prescribes the elements of the offense.
The DWI provision in the present case,
These factors are the same with respect to
Calton contains some language that could suggest that the jurisdictional nature of a prior conviction is simply irrelevant: “[T]he relevant question is whether the prior conviction is an element of the offense, not whether it is jurisdictional. . . . [W]hether something is an element of an offense is a completely separate inquiry from whether it is jurisdictionally required.”90 But Calton was addressing a claim by the State that there were only two types of prior convictions—those that are jurisdictional and those that are used
If we are to avoid rendering part of Article 36.01 meaningless, we must also give meaning to the phrase “are not jurisdictional.” We have rejected the notion that there is a special category of “jurisdictional” elements that are not elements for all purposes.95 For the phrase “are not jurisdictional” to have meaning, then, something that would otherwise be a punishment issue must become an element because it is jurisdictional. In fact, our prior-conviction jurisprudence in both DWI and theft cases has emphasized the jurisdictional nature of certain prior-conviction provisions in concluding that they prescribe elements.96 Under this view, the jurisdictional nature of the two-prior-conviction provision for felony DWI converts what would otherwise be a punishment issue into an element of the offense. Because the single-prior-conviction provision for misdemeanor DWI is not jurisdictional, that conversion effect does not occur, so the provision retains its character as prescribing a punishment issue.
The dissent suggests that our analysis results in “construing indistinguishable, side-by-side phrases in diametrically opposing ways.” In response to our obvious relianсe on Article 36.01‘s “jurisdictional” language to distinguish the felony and misdemeanor DWI provisions, the dissent is not persuaded because Article 36.01 tells us only that non-jurisdictional enhancements should not be read to the jury until punishment but does not tell us “what fact-issues fall into that category.” We disagree with this assessment. The word “jurisdictional” is highly informative. As we have discussed above, our caselaw has explicitly recognized that “jurisdictional” allegations are those that raise the level of the offense from a misdemeanor to a felony, which in turn results in vesting jurisdiction of the offense in district court—a court that generally lacks jurisdiction over misdemeanors.
The title of
Nevertheless, there is another way in which the title supports the notion that at least one of
E. Conclusion
From this discussion, we concludе that, although the statutory language is ambiguous, various factors suggest that the legislature intended that
Delivered: May 23, 2018
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