Case Information
*0 FILED COURT OF CRIMINAL APPEALS 10/9/2017 DEANA WILLIAMSON, CLERK
*1 PD-0734-17 COURT OF CRIMINAL APPEALS AUSTIN, TEXAS Transmitted 10/6/2017 1:38 PM Accepted 10/9/2017 10:00 AM DEANA WILLIAMSON NO. PD-‐0734-‐17 CLERK IN THE COURT OF CRIMINAL APPEALS OF TEXAS AUSTIN, TEXAS EX PARTE RUSSELL BOYD RAE, APPELLANT V. THE STATE OF TEXAS, APPELLEE BRIEF FOR APPELLANT ___________________________________________ NO. 06-‐17-‐00063-‐CR COURT OF APPEALS
FOR THE SIXTH DISTRICT OF TEXAS AT TEXARKANA On appeal from Cause Number F14-‐689-‐A In the 276 TH District Court of Marion County, Texas Honorable Robert Rolston, Judge Presiding Hough-‐Lewis (“Lew”) Dunn P.O. Box 2226 Longview, TX 75606 Tel. 903-‐757-‐6711 Fax 903-‐757-‐6712 Email: dunn@texramp.net Texas State Bar No. 06244600 Attorney for Appellant
IDENTITY OF PARTIES AND COUNSEL
*2
In compliance with Rule 68.4, TEX. R. APP. PROC., following are the identities of the trial court judge, all parties to the judgment appealed from, and the names and addresses of all trial and appellate counsel: Parties Russell Boyd Rae, Appellant The State of Texas, Appellee Trial Court Judge Hon. Robert Rolston Presiding Judge, 276 th District Court Marion County, Texas Trial and Appellate Counsel William K. Gleason, Attorney at Law P.O. Box 888 Jefferson, TX 75657 Counsel for Appellant at trial James R. (“Rick”) Hagan, Attorney at Law P. O. Box 3347 Longview, TX 75606 Counsel for Appellant in Probation Revocation and Habeas at Trial Court Angela Smoak County & District Attorney of Marion County 102 West Austin, Room 201 Jefferson, TX 75657 Trial Counsel for the State of Texas, Appellee
ii
IDENTITY OF JUDGE, PARTIES, AND COUNSEL (CONT’D)
*3 Hough-‐Lewis (“Lew”) Dunn Attorney at Law P.O. Box 2226 Longview, TX75606 Counsel for Appellant on Appeal Ricky Shelton Assistant County Attorney 102 West Austin, Room 201 Jefferson, TX 75657 Counsel for State on Appeal Stacey M. Soule State Prosecuting Attorney P.O. Box 13046 Austin, TX 78711-‐3046
iii *4 TABLE OF CONTENTS PAGE IDENTITY OF PARTIES AND COUNSEL ………………………………………… ii TABLE OF CONTENTS ……………………………………………………………….. iv INDEX OF AUTHORITIES ……………………………………………………………. vi STATEMENT OF THE CASE ………………………………………………………… viii STATEMENT REGARDING ORAL ARGUMENT ………………………………. viii SOLE ISSUE PRESENTED …………………………………………………………….. ix STATEMENT OF FACTS …..……………………………………………………………. 1
Guilty Plea ………………………………………………........................... 1 State’s Petition to Revoke Probated Judgment ……………….. 2 Hearing on Application for Writ of Habeas Corpus and …… 2 Motion to Quash Appeal ……………………………………………………………………………. 3
SUMMARY OF THE ARGUMENT …………………………………………………. 4 ARGUMENT ……………………………………………………………………………… 5
iv
PAGE
*5 SOLE ISSUE, RESTATED: …………………………………………………………. 5 DID THE COURT OF APPEALS ERR IN FINDING THAT THE PRIOR CONVICTION FOR OPERATING A WATERCRAFT WHILE INTOXICATED WAS A FINAL CONVICTION?
Part I. The Texas Parks & Wildlife Code is Different………… 5 Part II. Analysis of the Differences Between ……………………… 8
Texas Parks & Wildlife and Texas Penal Code Part III. The Court of Appeals Did Not Grasp the Distinction 10 Part IV. Application of Law of the Case or Stare Decisis 11 Part V. Conclusion …………………………………………………………… 13
PRAYER FOR RELIEF ………………………………………………………………….. 14 CERTIFICATE OF SERVICE …………………………………………………………….. 15 CERTIFICATE OF COMPLIANCE ……………………………………………………. 16
APPENDICES
APPENDIX A: Information and Judgment in Cause No. 6513 APPENDIX B: TEX. PARKS & WILD. CODE §31.097 APPENDIX C: TEX. PARKS & WILD. CODE §31.097
as amended, effective 9-‐1-‐91 APPENDIX D: TEX. PARKS & WILD. CODE §31.097 Repealing Legislation, 1993 v *6 INDEX OF AUTHORITIES CASES PAGE Ex parte Langley, 833 S.W.2d 141 (Tex. Crim. App. 1992) …………. 10 Ex parte Murchison , 560 S.W.2d 654 (Tex. Crim. App. 1978) …….. 6, 9 Ex parte Russell Boyd Rae , No. 74,840 ………………………………… 11, 12, 13
(Tex. Crim. App. 2003) Ex parte Russell Boyd Rae , 2017 Tex. App. LEXIS 5325 ……………… 3, 10 (Tex. App. – Texarkana, June 13, 2017) Ex parte Serrato , 3 S.W.3d 41 (Tex. Crim. App. 1999) ……………….. 7 Nixon v. State , 153 S.W.3d 550 ………………………………………………… 10
(Tex. App. – Amarillo 2004, pet. ref’d) Rizo v. State , 963 S.W.2d 137 (Tex. App. – Eastland 1997, no pet.) 11 State v. Swearingen , 478 S.W.3d 718 (Tex. Crim. App. 2015) …….. 13 Swearingen v. State , 424 S.W.3d 32 (Tex. Crim. App. 2014) ……….. 13
STATUTES AND RULES
ACTS OF TEXAS LEGISLATURE
Chapter 900, §1.18(b), 1993 ………………………………………….. 9, 11
TEX. CODE CRIM. PROC.
11.072 ………………………………………………………....................... 2 vi
PAGE
*7
TEX. PENAL CODE
§49.06 …………………………………………………………………………….. 9 §49.09(a) ……………………………………………………………………….. 6 §49.09(b)(2) …………………………………………………………………. 4, 7, 10 §49.09(c)(3)(C) …………………………………………………………………… 4, 8 §49.09(d) ……………………………………………………………………….. 10
TEX. PARKS & WILD. CODE §31.097 ………………………………………………………………………….. 5, 8, 9 §31.097(b) ……………………………………………………………………… 4, 5 §31.097(c) ………………………………………………………………………. 5
VERNON’S ANNOTATED CIVIL STATUTES
Art. 6701 l -‐1 ……………………………………………………………………. 7, 10 vii
STATEMENT OF THE CASE
*8 Appellant pleaded guilty to DWI, third offense and was sentenced to ten (10) years, probated for ten years. The State moved to revoke, and Appellant filed an Application for Writ of Habeas Corpus, which, after hearing, was denied. That Application contested the use of a prior conviction to enhance the DWI to a felony. Appeal was made to the Sixth Court of Appeals in Texarkana, which affirmed the trial court in a Memorandum Opinion on or about June 13, 2017. A Petition for Discretionary Review was then filed on July 12, 2017. This Court granted discretionary review on September 13, 2017.
STATEMENT REGARDING ORAL ARGUMENT
This Court has stated that the case will be submitted on briefs without oral argument. viii *9 SOLE ISSUE PRESENTED DID THE COURT OF APPEALS ERR IN FINDING THAT THE PRIOR CONVICTION FOR OPERATING A WATERCRAFT WHILE INTOXICATED WAS A FINAL CONVICTION?
ix *10 NO. PD-‐0734-‐17 IN THE COURT OF CRIMINAL APPEALS OF TEXAS AUSTIN, TEXAS EX PARTE RUSSELL BOYD RAE, APPELLANT V. THE STATE OF TEXAS, APPELLEE BRIEF FOR APPELLANT _____________________________________________________________ TO THE HONORABLE JUDGES OF THE COURT OF CRIMINAL APPEALS:
COMES NOW RUSSELL BOYD RAE, and files this, his Brief in support of review of his conviction in the trial court for felony DWI and subsequent affirmance by the Sixth Court of Appeals, and would show:
STATEMENT OF FACTS Guilty Plea Appellant was indicted for felony DWI, with two prior intoxication offenses alleged (CR 6). At his guilty plea (August 3, 2016) Appellant was *11 admonished by the trial court (1 RR 4-‐7), then entered his guilty plea (1 RR 7) to the charge of DWI, pleading guilty or “true” to the enhancement paragraphs (1 RR 8). The trial court accepted the pleas as voluntarily made, and asked the State for its evidence, consisting of a signed stipulation of evidence (1 RR 9). The State recommended ten years probated for ten years, fine of $3,500, and other conditions of probation, including 10 days in county jail (1 RR 9). Appellant agreed (1 RR 9). Trial court followed the agreement of the parties and entered judgment accordingly (1 RR 10; CR 8). State’s Petition to Revoke Probated Judgment
On or about November 10, 2016, there was filed the “State’s Petition to Revoke Probated Judgment” (CR 11). Capias issued; Appellant was arrested and jailed. Thereafter, on his behalf a “Defendant’s Motion to Quash Application for Revocation of Probation” was filed on December 27, 2016, with several exhibits attached (CR 13). Hearing on Application for Writ of Habeas Corpus and Motion to Quash
On December 27, 2017, Appellant filed his Application for Writ of Habeas Corpus, pursuant to Art. 11.072, TEX. CODE CRIM. PROC. (CR 30). The State filed the “State’s Response to Applicant’s Application for Writ of Habeas Corpus and Motion to Quash” (CR 50).
*12 At the hearing on February 23, 2017, Counsel for Appellant offered arguments and authorities on why the second conviction used for enhancement (boating while intoxicated, Cause No. 6513 from Marion County in 1993) was not a proper case to use for enhancement, requesting the trial court to declare the judgment in the case at bar void because of that infirmity (2 RR 3, 5). State’s counsel countered by arguing that there is a distinction to be made between using a prior DWI for purposes of jurisdictional enhancement as opposed to using it for purposes of punishment (2 RR 6), urging the trial court to review her arguments in her “Response” (CR 50). During the hearing both parties agreed that the exhibits to their respective pleadings be admitted into evidence as exhibits, and the trial court approved (2 RR 6,7).
Thereafter, the trial court entered its “Order Denying Application for Writ of Habeas Corpus with Findings of Fact and Conclusions of Law” (CR 74). Appeal
The Court of Appeals upheld the denial of habeas relief in Ex parte Russell Boyd Rae , 2017 Tex. App. LEXIS 5325 (Tex. App. – Texarkana, June 13, 2017).
SUMMARY OF THE ARGUMENT
*13 The Court of Appeals failed to grasp the distinction between, on the one hand, the old law that pertained to “boating while intoxicated” as enacted in 1989 in TEXAS PARKS & WILDLIFE CODE §31.097(b), and, on the other hand, later law under the Texas Penal Code describing intoxication-‐ related offenses and use of prior convictions. The law governing the use of prior conviction for “boating while intoxicated” on June 22, 1992 – the date of Appellant’s prior offense -‐-‐ provided that, if one successfully worked community supervision and was not revoked, then that “conviction” was never legally a “final conviction” for purposes of enhancement. TEX. PENAL CODE §49.09(c)(3)(C) and the repealing legislation in 1994 stated that an offense committed before its effective date, was covered by the law in effect when the offense was committed, and that the former law was continued in effect for that purpose. Therefore, the later law found in TEX. PENAL CODE §49.09(b)(2), concerning what priors could be used to enhance a DWI to a felony, did not apply to Appellant. The same issue in 2003 was resolved in favor of Appellant by this Court; the law of the case or stare decisis should yield the same outcome.
*14 ARGUMENT SOLE ISSUE, RESTATED DID THE COURT OF APPEALS ERR IN FINDING THAT THE PRIOR CONVICTION FOR OPERATING A WATERCRAFT WHILE INTOXICATED WAS A FINAL CONVICTION?
To elevate the DWI of June 21, 2015, to a third degree felony, the State relied upon two prior intoxication offenses: a conviction for DWI on January 28, 1987, in Cause No. 87-‐16 from Cass County, and a conviction for operating a boat while intoxicated on July 6, 1993, in Cause No. 6513 from Marion County. ( See , Indictment, CR 6). That offense was committed on June 22, 1992 ( See , Information, CR 17).
Part I. The Texas Parks & Wildlife Code is Different In 1992 the offense of “boating while intoxicated” was found in TEX.
PARKS & WILD. CODE, §31.097, in particular §31.097(b), TEX. PARKS & WILD. CODE, which stated, in relevant part: “No person may operate a moving vessel…while the person is intoxicated…” Punishment was also found in the same code, in §31.097(c), TEX. PARKS & WILD. CODE, giving a range of punishment to include a fine, jail, or a combination of both; subsequent subsections allowed for more severe punishment for repeat offenders. It was this law under which the State brought its complaint and *15 information in 1993 and for which Appellant was convicted in Cause No. 6513 in Marion County.
Exhibit A of Appellant’s Application in Habeas Corpus (CR 36 ff) offers a copy of the “Information,” showing Applicant’s offense was alleged to have occurred on June 22, 1992. The Judgment and Order Granting Probation was entered on July 6, 1993. (Both the Information and Judgment are attached to this Brief as “Appendix A.”) Though at one point the State moved to revoke that probation, the motion was eventually dismissed (CR 41-‐42). Thus, Appellant served out his probation without ever being revoked.
Appellant contends that the prior boating while intoxicated case could not be used to enhance his current offense to a third degree felony. [1] See, Ex parte Murchison , 560 S.W.2d 654, 656 (Tex. Crim. App. 1978). There, in an appeal of a conviction with assault with intent to commit rape, enhanced by two prior felony convictions to yield a life sentence, the Court of Criminal Appeals held that, absent an order revoking probation, a conviction is not “final” and may not be used for enhancement purposes; to do otherwise was a violation of due process of law. Similarly, because of its *16 own particular statute, the operation of a moving vessel while intoxicated or “boating while intoxicated” – when probated and not revoked – does NOT operate as an enhancing offense.
Because the 1992 case arose under a different statute, it differs from other intoxication offenses that involve a probated sentence linked to the operation of a motor vehicle. In the event of the latter, the case of Ex parte Serrato , 3 S.W.3d 41, 43 (Tex. Crim. App. 1999) held that “a probated DWI which occurred after January 1, 1984, but prior to September 1, 1994, may properly be used to enhance a sentence.” That was the case, because the DWI statute then in effect, Article 6701 l -‐1, V.A.C.S., specifically stated: “For purposes of this article, a conviction for an offense that occurs on or after January 1, 1984, is a final conviction, whether or not the sentence for the conviction is probated.” Ex parte Serrato , at 43.
It might seem at first glance as if the prior watercraft/boating DWI would be available as an enhancement. TEX. PENAL CODE §49.09(b)(2) states that a DWI may be enhanced by any combination of prior intoxication convictions: driving, boating, or flying, and two of them will *17 serve to enhance to a third degree felony. However, TEX. PENAL CODE §49.09(c)(3), “Operating a watercraft while intoxicated,” defines the offense, in relevant part:
“Offense of operating a watercraft while intoxicated means: …. (C) an offense under Section 31.097, Parks and Wildlife Code, as that
law existed before September 1, 1994.” (emphasis supplied) That latter statute, TEX. PARKS & WILD. CODE §31.097, was the law
in effect when Appellant was charged and received his probated sentence on July 6, 1993, the offense occurring on June 22, 1992. Consequently, Subsection (C) of TEX. PENAL CODE §49.09(c)(3) applies in the case at bar.
Part II. Analysis of the Differences Between Texas Parks & Wildlife and Texas Penal Code That being the case, the next question is this: Did Section TEX. PARKS & WILD. CODE §31.097 specify whether or
not a probated conviction under that statute was final? To answer that, one must review its legislative history. The entire statute, TEX. PARKS & WILD. CODE §31.097, as enacted into law by the 71 st Legislature (effective, July 1, 1989) is attached as “Appendix B.” The law *18 was amended by the 72 nd Legislature, effective September 1, 1991, as seen in attached “Appendix C.” Finally, the law was repealed by the 73 rd Legislature, providing that “boating while intoxicated” offenses occurring on or after September 1, 1994, were to be prosecuted under §49.06, TEX. PENAL CODE, attached as “Appendix D.” So the answer to the question above is this: Neither version of that statute, seen in Appendix B or C, stated that a probated sentence under TEX. PARKS & WILD. CODE §31.097 was available for enhancement. In fact, Chapter 900, §1.18(b) of the 1993 repealing legislation stated as follows, in relevant part:
… “(b) An offense committed before the effective date of this article is
covered by the law in effect when the offense was committed, and the former law is continued in effect for that purpose.”
(Appendix D). Therefore, the law in effect on June 22, 1992, applied to Appellant’s
“boating while intoxicated” offense, not some law enacted at a later date. That means the pronouncement in Ex parte Murchison controls: only a conviction in a revoked probation -‐-‐ only that sort of “final” conviction – can be used to enhance, not something less. Absent a specific statutory *19 directive such as found in Art. 6701 l -‐1, V.A.C.S., or in TEX. PENAL CODE §49.09(d), a probated sentence from 1993 for boating while intoxicated is NOT a final conviction for purposes of enhancement, unless it is revoked and a final conviction entered. A successfully served probation – which happened in Cause No. 6513 – is not available for enhancement. See also , Ex parte Langley, 833 S.W.2d 141, 143 (Tex. Crim. App. 1992). There the defendant was convicted and given probation, then revoked and sentenced, but then given shock probation, setting the case back to the status of probation, which was unrevoked. It was error to use that case for enhancement. See also, Nixon v. State , 153 S.W.3d 550, 551 (Tex. App. – Amarillo 2004, pet. ref’d).
Part III. The Court of Appeals Did Not Grasp the Distinction The Court of Appeals failed to grasp the distinction just made. Instead, it relied upon TEX. PENAL CODE §49.09(b)(2) which pertains to enhancing the DWI to a felony of the third degree if it is shown that the person has been convicted two times of any intoxication offense . See, Ex parte Rae, 2017 Tex. App. LEXIS 5325, *3 and n. 4, citing to TEX. REV. CIV. STAT. art. 6701 l -‐1. Furthermore, the Court of Appeals cited to *20 Rizo v. State , 963 S.W.2d 137, 139 (Tex. App. – Eastland 1997, no pet.) to support its reasoning ( id .).
However, Rizo is inapposite since it involved a conviction under an older driving while intoxicated statute, not a conviction for the operation of a watercraft while intoxicated under the TEX. PARKS & WILD. CODE. The Court of Appeals ignored the distinction about how the law concerning a conviction under the TEXAS PARKS & WILD. CODE applied to the prior Marion County case. The point is that, as such, that conviction was never final. It was an offense “covered by the law in effect when the offense was committed, and the former law is continued in effect for that purpose.” ( See , Chapter 900, §1.18(b), Appendix D, post ).
Part IV. Application of Law of the Case or Stare Decisis This Court so held in 2003 in Cause No. 74,840, Ex parte Russell Boyd
Rae ( per curiam decision, December 3, 2003). In that case precisely the same issue arose over using the same Marion County operation of watercraft case, Cause No. 6513, to enhance a DWI in Gregg County to a felony in Cause No. 28,841-‐B. Part of the reasoning behind this Court’s granting the writ was ineffectiveness of counsel “for failing to investigate one of the prior convictions used to elevate this offense to a felony.” The *21 trial court found that the prior offense (i.e., Cause No. 6513) was not a final conviction available for enhancement purposes and that there was ineffectiveness of counsel in failing to investigate that prior conviction; the trial court recommended granting relief. This Court agreed with that recommendation and granted habeas corpus relief.
Although no ineffectiveness of counsel issue was raised in the current habeas application, the underlying determining consideration in Cause No. 74,840, Ex parte Russell Boyd Rae was the use of a prior conviction that was not final to enhance a misdemeanor DWI offense to a felony; this Court agreed with the trial court in 2003 that the “boating while intoxicated” conviction was not a final conviction; otherwise, there would have been no predicate for finding ineffectiveness. It was the same prior case that was used here: Cause No. 6513 from Marion County.
The principle of the “law of the case” or stare decisis applies to the instant case. This Court has written that “ ‘an appellate court’s resolution of questions of law in a previous appeal are binding in subsequent appeals concerning the same issue.’ Therefore, ’when the facts and legal issues are virtually identical, they should be controlled by an appellate court’s previous resolution.’ Such a rule promotes ‘judicial consistency and *22 efficiency.’ “ State v. Swearingen , 478 S.W.3d 718, 720 (Tex. Crim. App. 2015) (citing to Swearingen v. State , 424 S.W.3d 32, 36 (Tex. Crim. App. 2014).
What is that same issue? It is this: can the prior “conviction” of Appellant under the Texas Parks & Wildlife Code in Cause No. 6513 be used to enhance a subsequent DWI to a felony? The answer in 2003 was “no” and should still be “no” under the law of the case or stare decisis . It is the same defendant and the same prior and now an attempt – again – to use it to enhance.
Part V. Conclusion Appellant would urge this Court in the case at bar to follow its own
precedent, and apply the same reasoning it applied in reviewing that prior habeas application in Cause No. 74,840, Ex parte Russell Boyd Rae from 2003. Appellant contends that, in light of the foregoing, it is clear that the Court of Appeals erred in failing to find that the prior conviction in Cause No. 6513 was not a final conviction and could not be used for enhancement.
Appellant urges reversal of the Judgment of the Court of Appeal, finding that the prior conviction for boating while intoxicated in Cause No. *23 6513 from Marion County was never a final conviction for the purposes of enhancement, and remanding to the lower courts for appropriate relief, including a re-‐sentencing as a Class A misdemeanor, or, alternatively, a reformation of the sentence to show a conviction for a Class A Misdemeanor, and remand for a new hearing on punishment.
PRAYER FOR RELIEF
WHEREFORE, PREMISES CONSIDERED, Appellant respectfully prays that this Court, in consideration of the foregoing arguments and authorities, issue an opinion reversing the Court of Appeals’ Judgment, remanding this cause to the trial court, vacating and setting aside the conviction as a felony, and, instead, reflecting a judgment of conviction as a Class A misdemeanor, and remand for a hearing on sentencing.
Respectfully submitted, Hough-‐Lewis Dunn Hough-‐Lewis (“Lew”) Dunn P.O. Box 2226 Longview, TX 75606 Tel. 903-‐757-‐6711 Fax 903-‐757-‐6712 Email: dunn@texramp.net Texas State Bar No. 06244600 Attorney for Appellant
CERTIFICATE OF SERVICE
*24 I hereby certify, by affixing my signature above, that a true and correct copy of the foregoing Brief for Appellant , was sent to the following person by certified mail, return receipt requested, on the 6th day of October, 2017, to Ms. Stacy M. Soule, State Prosecuting Attorney, at P.O. Box 13046, Austin, TX 78711-‐3046 and also sent by electronic means, and also a true and correct copy was sent by first class mail to Ms. Angela Smoak, Marion County & District Attorney, 102 W. Austin Street, Jefferson, TX 75657 and also sent by electronic means on the same date.
Hough-‐Lewis Dunn Hough-‐Lewis Dunn
CERTIFICATE OF COMPLIANCE
*25 I certify that the foregoing document complies with Rule 9, TEX. R. APP. PROC., regarding length of documents, in that, exclusive of caption, identity of parties and counsel, statement regarding oral argument, table of contents, index of authorities, statement of the case, issues presented, statement of jurisdiction, statement of procedural history, signature, proof of service, certification, certificate of compliance, and appendix, it consists of 2,703 words.
Hough-‐Lewis Dunn Hough-‐Lewis Dunn
NOTES
[1] In that event, the highest level of offense in this matter would be a Class A misdemeanor. Appellant does not contest the use of the other misdemeanor conviction in Cause No. 87-‐16 from Cass County. See , TEX. PENAL CODE, §49.09(a).