*1 DALLY, ODOM, PHILLIPS Bеfore SHIVERS, Appellant, Melvin C. JJ. OPINION Texas, Appellee. The STATE of ODOM, Judge.
No. 59627. appeal This is an from a heroin; punishment, possession enhanced Texas, Appeals of Criminal convictions, fixed by proof of two Panel No. 2. V.T.C.A., at life the terms of Penal Code Dec. 12.42(d). Sec.
Appellant’s court-appointed counsel has ap filed a brief in which he concludes the peal wholly merit. frivolous without California, Anders U.S. S.Ct. 1396, 18 Appellant L.Ed.2d 493. has filed a pro grounds raising se brief several of er ror.
We have reviewed the record and briefs frivolous, appeal is agree judgment. we affirm concurring opinion The has seized grounds urged pro se brief one argue long line opportunity as an that a statutory construction be overruled. The judicial construction of the felo established ny statute no felo habitual оffender is that ny may be twice used under its provisions enhanced obtain adoption penal to life. new code in 1973 did not evidence intent on that a in part legislature different terpretation govern. should thereafter See Carvajal (Tex.Cr. App.) Commentary Practice Sec. 12.42(d), supra. legislature’s failure to significance indicate a in intent is change addressing we are here a matter of construction, not of cre statutory judicially decision, evidentiary ated rules of as in matters. *2 purposes convictions for which the issue would of enhancement of upon
The facts show that the doctrine under Article Vernon’s in this case Ann. turn burglary P.C. These were a 1965 multiple use of convictions against as a habitual offender conviction in Cause No. 9614 in the District securing punishment pri- County his of Brazos and a conviсtion for Appellant argues Court was not violated. burglary in the 85th in Cause No. 9454 in the District in Cause No. 9614 or conviction County, County. Appellant of Brazos of Brazos was District Court Court Judicial case, offense, pre- primary in this had convicted of the and his used for enhancement imprison- to secure a life sentence was assessed at life viously been used 63, supra. No. 9985 in the 85th Judi- pursuant Appel- in Cause ment to Article in 1969 Court; County. The District of Brazos to this appealed cial lant this conviction conviction, however, history however, of that 1969 life sentence conviction and the life sentence was set aside shows that were affirmed. Shivers Shivers, Ex parte attack in a collateral (Tex.Cr.App.1970). S.W.2d 915 Hence, (Tex.Cr.App.). filed, post-con- Subsequently, appellant previously used here had corpus proceeding viction under the habeas a life sen- successfully to secure 11.07, provisions of Article Vernon’s Ann.C. Johnson v. tence. that at the time C.P. There contended Thus, proposal probation revoked in Cause No. his rule long-standing abandon Court, 9454 in the 85th Judicial District neces- attempts rely is not even appellant prior burglary which was one of the two case, this since the affirmance of sary for enhancement, he alleged within the terms of appellant is not counsel, indigent, did not have and did be mere dictum. position rule. Following waive an evidentia- counsel. however, do, opportunity take this We court, ry hearing convicting the trial legislature bring to the attention of judge findings entered fact and conclu- existing in this area complexities numerous appellant’s allegations sions of law that law, the еase with which he was entitled to the were correct and that simplify those matters and legislature could sought. relief This Court found that For a com- litigation involving them. finding court’s supported evidence the trial unnecessarily discussion of prehensive appellant and ordered released from the we cite the concur- complex area of the law Department of and remanded Corrections case as recommended ring opinion in this sheriff of Brazos custody reading. to answer the indictment in Cause County Shivers, parte No. 9985. Ex affirmed. judgment is DALLY, Judge, concurring. rehearing, On motion for con- State record, counsel’s a review of the After appellant tended that if was entitled to one brief, I believe pro se brief appellant’s relief was that sentence it That conten- discussion. merits cоntention should be reformed to confinement conviction in appellant’s is that tion Department of for a term of Corrections burglary offense of No. 9614 for the Cause under Article years, the maximum sentence Brazos Court of District in the 85th Judicial (1925), for the of- to enhance been used County to commit burglary fense of with intent cause. in another agreed, concluding: theft. This Court rehearing “The motion for in 1969 in Cause State’s was indicted
Appellant
re-
granted to the extent
that the order
Judicial District Court
85th
No. 9985 in the
petitioner to the sheriff of Bra-
manding
offense of
primary
for the
County
Brazos
the indictment
County
under
zos
to answer
to commit theft
with intent
burglary
aside,
Cause No. 9985 is set
The indictment
Penal Code.
the former
un-
petitioner’s
ordered that
confinement
non-capital
felony
two
also
violative of the
of for-
“would be
years
cannot exceed
this conviction
der
jeopardy.”
mer
Article
V.A.P.C.”
in accordance
Shivers, supra, at 902.
parte
Ex
Supreme Court of
1895 the
Since at least
held that recidivist
the United States
instant
was indicted
Appellant
put a defendant
do not twice
statutes
knowingly
primary offense of
for the
cause
*3
offense. Moore v.
for the same
jeopardy
Two
intentionally possessing heroin.
179, 40
673, 16
Missouri,
S.Ct.
L.Ed.
159 U.S.
alleged
for
felony convictions
prior
Massachusetts,
(1895);
v.
180
301
McDonald
of enhancement
311,
389,
(1901);
21
“The
Union,
State contends that
the failure of
Inc. v. Retail Clerk’s
Local
su-
Legislature
prohibit
repeated
pra.
convictions to en-
use of
appears
It
the Kinney
rule was first
hance
manifests an intent
followed some
years
after it was stated
and its
be aban-
progeny
of Miller v.
cases
doned.
It strikes us that the omission of
S.W.2d 859
Cothren v.
any significant additional or different
*4
State,
339,
139 Tex.Cr.R.
12.42(d)
quite the
language in
cuts
Sec.
(1940).
judgment
The
in Miller was re-
Legislature was aware
way.
other
The
Kinney
vеrsed with
authority cit-
rule,
Kinney
now seven-
of the venerable
ed. Cothren was reversed without the cita-
The
silence on
ty years
Legislature’s
old.
of any authority.
opinion
tion
merely
use for
question multiple
of
enhance-
states:
purposes
prior
ment
of
convictions must
“The same conviction cannot be twice
a lack of dissatisfaction with the
evidence
purpose
enhancing
used for the
of
pen-
judicial construction of the
established
alty. This has
frequently
by
been so
comparison
statutes. A
of Y.T.C.A. Pe-
held
Code,
1.05(a),
nal
and the old Art. 7
this court and in recent
Sec.
cases that we do
from the
does
dissuade us
soundness
necessary
consider it
to here discuss
of this conclusion.”
the matter or cite authorities.”
appears
has been
It
thus
State,
347, 145
In
v.
140
Gooden
Tex.Cr.R.
of
continuously
followed
the deсisions
punish
S.W.2d
defendant’s
of stare
this Court because of
imprisonment
ment had been affixed at life
However, we have held that stare
decisis.
63,
pursuant
to Art.
controlling only if it makes
decisis should be
(1925).
reversing
In
that case the court
logical reasoning.
follows
Middle-
sense or
stated:
State,
(Tex.Cr.App.
ton
S.W.2d
“It is shown that at
a time
to this
1972). Moreover,
silence to-
legislative
trial this defendant had been tried for a
the rules stated in
should not
ward
offense,
similar
purpose
and that for the
interpreted
legislative acceptance
of
punishment,
of an enhancement of the
Hallock,
Helvering
In
that decision.
previous
convictions used in the
444,
106,
(1940), it
155 Court, constituted, This now as prose- it could never not as a second offender Thus is Kinney as an habitual offender. the the cute one inclined to extend rule in in relator’s con- fallacy case, the demonstrated supra.” tention.” rule Kinney to the exception Another on to Mayo in went criticize opinion State, v. found in Johnson 158 Tex.Cr.R. Judge Beau- Kinney quoting from There the champ’s remarks in Brown. See also Head primary was indicted of- defendant for State, (Tex.Cr.App.1967), v. fense burglary, alleged which was to State, v. and Cleveland S.W.2d have on February been committed (Tex.Cr.App.1973), Calloway in which and prior Three felony alleged Mayo were followed. for purposes. Johnson was Hill v. 158 Tex.Cr.R. In but, case appealed; convicted and (1953), was con- the defendant S.W.2d of the reversed because failure State driving while intox- of the offense of victed of an accom- testimony corroborate offender. It was subsequent as a icated plice. Subsequently, grаnd jury re- contended that the defendant’s there turned habitual another criminal indictment driving while conviction misdemeanor against of- primary the defendant. The in could be used his 1952 intoxicated not burglary alleged fense there was a have trial, successfully used because had been on June 1951. Two of occurred felony driving a 1949 while prior alleged offenses were the The defendant contended intoxicated. previous those case. alleged Johnson prevent the re-use the rule again appealed. and He con- convicted misdemeanor, since it suc- the 1947 had prior tended that convictions could not cessfully felony in the 1949 con- punishment, be used to enhance his rejecting In that contention this viction. they previously prior been used in the stated: rejected case. This Court that contention held the rule in the “This Court has not yet exception created another to the 802b, Article Ver applies case Kinney rule, stating: Ann.P.C., and we do not now feel non’s we contrary, inclined to so hold. To the case, “In the instant the State had not Tex. Broughton have held successfully prior used the convictions at 393, and Clifton Cr.R. S.W.2d trial time of the on the instant indict- 156 Tex.Cr.R. ment, had, prior because this Court article an enhancement of that said is not time, reversed previous habitual creates a new punishment statute conviction; original criminal and the in- grade independent crime pending dictment remained on the docket element of which is felony, an essential of the trial court. situation Such a did person charged pri- not use of the constitute successful misdemeanor offense been convicted of а or so as to their prevent driving while intoxicated. The addi used in the instant case.” allegation prior tional misdemean- Mooring vests the District Court or conviction thus the defendant was only in jurisdiction. It is cases aris with area, dry for sale of whiskey convicted 61-64, Vernon’s Ann. ing under Articles prior alleged offenses to enhance the P.C., case, rule appeal contended On it, apply. which follow We hold those used, convictions could be- use of the misdemeanor cause offenses were prevent its subse conviction does proven to enhance in an- re-use for the same quent defendant, against other even case re-use does not vio that such though case had resulted an prohibition against late the constitutional acquittal. The Court jeopardy. twice stated: *9 placing acсused D, that, felony felony A can be used to enhance hold where the convic- “We proven to enhance and felony felony and B can be used to enhance tions However, felony in a case which results C. A cannot be used to D, constitute a acquittal, felony an this does not enhance felonies C and nor can B use of the conviction so successful be to enhance felonies C and D. used prevent as to their a subse- situation, In the if habitual criminal purpose. quent case for A finally felony defendant is convicted of construed as hold- “If the case be felony 1970 and B in 1974 and defend- the decision here ing in conflict with ant and D in commits felonies C felo- reached, overruled to that expressly it is nies A used to and B can be make the extent. criminal under felo- defendant an habitual jeopardy does “We hold the doctrine of C; ny they cannot also be used to make but at bar.” apply to the case criminal felony him an habitual under D. However, finally if the defendant is con- State, 479 S.W.2d also Florez See felonies A and B in 1970 victed of (Tex.Cr.App.1972). convicted of felonies C and D in 1974 finally Thus, Mooring, this through down Court E and then commits felonies and F in the basis of overwhelmingly rejected A can be felonies and C used to make the jeopar- Kinney rule that the doctrine an felony defendant habitual criminal for E the re-use of a dy barred and felonies B and D can be used to make purposes. Mooring even the defendant an habitual criminal under further; Kinney be suggested it went Likewise, F. felonies B and can be felony C conflict. to the extent of overruled used to make the defendant an habitual criticized, dis Although Kinney has been A felony criminal under E and felonies confusion, credited, led to illogical, found D can be used to make the defendant cases, conflicting given rise to felony habitual criminal under F. How- g., e. Car followed. See nevertheless been ever, felony duty A double with cannot do supra; Shaw vajal v. D both felonies E and felonies C and under Waythe v. (Tex.Cr.App.1975); S.W.2d Likewise, felony F. B cannot do double (Tex.Cr.App.1976); 533 S.W.2d and D under both duty felonies C White, (Tex.Cr. parte Ex Felony felonies E and F. C cannot do App.1976); Rollins A B duty double with felonies under parte Friday, 545 (Tex.Cr.App.1976); Ex Felony both felonies E and F. D cannot do Moreover, B duty double with felonies A and under continuing it has been the years recent until both felonies E and F. exceptions to to create policy of status is fixed as a Once defendant’s See, example, Ex rule. offender, that stаtus should stand second (Tex.Cr. Montgomery, 571 S.W.2d parte the defendant later becomes an ha- unless there cited. App.1978), and cases Likewise, once a defend- bitual offender. no sense is Kinney rule makes That the offender, ant’s status is fixed as an habitual ex- following further demonstrated that status should remain. That the Kin- suppose us that a defendant amples. Let ney amply rule makes no sense is demon- A in 1970. In felony finally convicted examples the cases cited and the strated Felony B and C. felonies 1974 he commits Therefore, we have decided given above. B, felony used to enhance A can be longer of stare decisis no that the doctrine A using felony prohibit Kinney rule Kinney, because it requires us to follow However, let us felony enhance C. to also logical makes sense nor follows rea- neither finаlly defendant suppose that in 1970 a State, supra. soning. Middleton v. A and B. of felonies convicted ap- Insofar as the rule has been A Felony D. can felonies C and commits C, plied felony B can to Art. felony used to enhance Likewise, authority statutory there “is no D. felony enhance used to *10 Thus, Legislature adopt- specifically can be used more than” the has prior offenses that time, reading a of the statute itself previous one ed this construction of Art. Court’s interpretation. pro- That article that belies supra, enacting 12.42(d), supra. Sec. vides: This be contrasted the rule of should felony on the trial of a that, “If it be shown silence, Leg- their construction capital than the defendant has less adopted judicial islature has construc- been before convicted of of- tions of the recidivist statutе. nature, fense, or one of V.T.C.A., Code, reading A Penal Sec. other on such second or sub- punishment 12.42, Legislature did not shows highest shall sequent conviction be prohibit multiple use of expressly is to the commission of affixed for of enhancement of (Em- ordinary cases.” such offenses wording contrary, To the supplied) phasis implies multi- strongly of this statute Thus, may under Art. it be seen that look, ple encouraged. use Let us for is may prior felony one conviction supra, 12.42, example, (a) of at subsection Sec. conviction, used enhance a second only be to supra. provides: That statute subsequent conviction. any other “If it be trial of third-de- shown on the a Moreover, for second or gree felony the defendant has been subsequent mandatorily conviction is other any once highest felony, at “the which is before convicted of on set the statute to such offenses punished affixed the commission of be a conviction shall ordinary cases.” second-degree [Emphasis felony.” sup- plied]. (1925), has no Art. express statutory authorization for
similar
Thus,
to
the mandatory
in order
invoke
use
convictions as did Art.
multiple
second-degree felony punishment under the
provided:
supra.
merely
It
statute,
that,
it
shown
on the
need be
have
three times
“Whoever shall
been
third-degree felony,
trial
of a
defendant
felony
capital
less than
convicted of
has been once before convicted of
felo-
impris-
on such third conviction be
shall
ny.
mandatory,
is
the fact
The statute
penitentiary.”
oned for life in the
felony
previ-
the first
conviction has
construing
supra,
Art.
this Court held
to
ously
punishment
used
enhance
been
must becоme
that the first
no bar
its
use.
subsequent
to
prior to the commission of
second
final
27, 1978,
September
panel
On
of this
the second
and the conviction for
offense
Court,
dissenting,
judge
with one
held that
to the
must
final
com-
offense
become
successfully
once
been
prior conviction has
It is interest-
of the third offense.
mission
12.-
used
enhance
under Sec.
that,
penal
new
enacting
ing to note
42(d)
enhance
again
it could not
code,
specifically adopted
Legislature
12.42(a).
parte
under
Ex
Sec.
when
enacted
new
interpretation
it
Montgomery, supra.
interesting
It
statute,
That
criminal statute.
habitual
before,
September
on
note that one week
12.42(d),
V.T.C.A.,
Code,
pro-
Sec.
Penal
20, 1978,
of this
set
panel
another
vides:
Montgomery’s
aside
life sentence under Sec.
any felony
on the trial of
“If
be shown
12.42(d)
сause
and remanded the
to the trial
the defendant has
offense that
under
court for assessment of
felony of-
convicted of two
finally
12.42(a).
Montgomery
Sec.
fenses,
felony
previous
the second
These two
occurred
an offense that
is for
amply
cases
demonstrate that
previous
convic-
first
cases; for,
conflicting
at
Ex
sired
the time
final,
conviction he
having become
on
tion
decided,
Montgomery,
supra,
parte
punished by
confinement
shall
punishment had not been
Montgomery’s
of Corrections
Department
Texas
12.42(d),
successfully enhanced under Sec.
life.”
*11
Montgomery’s
conviction,
as
life sentence had been set Oklahoma
they were unavailable
Montgomery
aside one week before in
to the State of Texas for enhancement use
State, supra.
Wilbarger
in the 1971
County conviction.
overruled,
The contention was
with the
11,1978,
panel
On October
still another
of
opinion stating:
Hill,
parte
this Court decided Ex
571
“This
consistently
Court has
that
S.W.2d 900
There the
held
fact
petitioner
given
had been
a
a defendant
life sentence
has suffered in
68,
supra.
under Art.
Petitioner contended
creased
on conviction of a
alleged against
subsequent
the three felonies
him
second or
offense [footnote
paragraphs
in the enhancement
of
in-
being
reason of his
a prior
omitted]
be-
dictment were unavailable
such use
offender
prevent
will not
imposition of a
cause two of the
to en-
three
life sentence
a
when
third conviction fix
hance the third in a 1961 Oklahoma convic-
es
status as
habitual offender.
tion. The record
1951
reflected that
in
West v. State,
(Tex.Cr.
conviction in Cause No. petitioner was guilty verdict and
returned a De- imprisonment
sentenced to life
partment Corrections. contended that petitioner
In this Court
since the and 1957 convictions used to enhance the