*1 is If a statute ambiguity. umbrella of Texas, Appellant The STATE matter, ambiguous.
silent many Simi- this times.4 recognized v. “an on whether larly, this statute is silent alleg- refers to indictment KERSH, Appellee. indictment” Wayne Phillip offense. the same offense or No. 1868-99. bring case outside majority’s efforts to this Boykin wholly unpersua- are the ambit of Texas, Appeals of Criminal Court sive. En Banc. new I am troubled the Court’s also 4, Feb. This statutory guidelines for construction. ambiguous” category of “silent but not
new today majority dangerous. statutes is power to out” stat- gives courts the “round construction” “impose their own utes they perceive statutes as silent. whenever literal This will take us far from the text courts none of the statute provides. Boykin guidelines Boykin journey legisla- the extra-textual limits statutes, history, consequences tive other construction, opin- etc. The Court’s today limits and provides ion no such will precedent to strike out for courts serve interpreting own statutes. their is a bad idea. apply Boykin
I would to this case I ambiguous. conclude that statute is sources, then would consider extra-textual which the does the remainder I reach the same con- opinion. would Art. regarding clusion that the Court does 12.05(b). judg- concur the Court’s therefore ment. (plurality State, (Tex.Crim.App.1996) 514-15 v. 98 S.W.3d 183-85
4. See Brown (finding ambiguous a statute silent on op.) (finding ambiguous (Tex.Crim.App.2003) “provide”); v. Fourteenth "voluntarily”); meaning of on definition of statute silent Lanford (Tex. Roberts, (Tex. Appeals, 847 S.W.2d v. ambiguous a statute Crim.App.1993) (finding ambiguous (finding a statute Crim.App.1996) to a crimi sup "a case" refers phrase silent on whether "motion to silent on case). State, evidence”); nal or civil 933 S.W.2d case press Lane *2 jurisdiction taking State’s appeal this case. charged
The appellant felony was aof controlled substance. The indictment included two enhancement paragraphs previous felony that alleged convictions. The appellant pleaded guilty charged to the and offense true to allegations. enhancement trial him punish- admonished that the twenty-five years was to life or nine- ty-nine years, plea appellant’s based on the of true paragraphs. to enhancement accepted The court appellant’s guilty Stephen Morris, Houston, appellant. for plea, found enhancement paragraphs DA, McCrory, Houston, Dan Assist. true, to adjudication but deferred Paul, Attorney, Austin, appellant The court for state. community supervision for later, Four sev- alleging violations of eral of the probation, terms adjudicate moved appellant’s guilt. to WOMACK, J., delivered the Finding the'appellant Court, that had violated the P.J., KELLER, probation, terms of his the trial court MEYERS, PRICE, JOHNSON, granted adjudicate the State’s motion to KEASLER, HERVEY, COCHRAN, guilty him original of- JJ., joined. fense. The court sentenced the appellant presents case issue whether confinement, to ten years’ but did take not appeals taking juris- erred in into account the allegations by of an appeal Specifi- diction the State. which a of true had made been we cally, must decide whether State original proceeding. may appeal a ig- trial court’s decision to allegations that previ- appealed, nore enhancement complaining State that ously have by been found to be true when the court considering not assessing punishment at an paragraphs by failing hearing. question appellant The answer de- ha- pursuant sentence the to the pends upon provisions whether such a decision is bitual-offender Penal Code 12.42(d). of the “sentence” under argued Code of Criminal section that 44.01(b). 12.42(d), Procedure 42.02 appellant’s articles Be- under section two previous convictions, cause the felony “sentence” under final sec- these allega- felony having articles includes enhancement ond offense occurred after tions, may required hold that the State the first conviction that was trial court’s them and he receive a sentence of 25 life failure consider the court imprisonment.1 appeals did err in The court of re- felony finally of a "If is shown the trial has been convicted of offenses, felony jail punisha- felony state felo- offense other than a and the second 12.35(a) ny ble under Section that the defendant for an offense occurred proper 42.01 the elements held sets forth judgment, trial court’s versed deadly-weapon findings judgment, and ap- trial court had sentenced the the portions from separately are “listed outside the pellant For rea- these regarding the sentence.”7 a habitual committed *3 sons, deadly-weapon finding that a we held by ignoring the fender sentence, that, there- part of the is not allegations.2 granted re- We fore, is not entitled of determine whether the court view to judg- a trial court’s of one from omission jurisdiction of the taking in appeals erred ment.8 limited appeal. Our review is State’s however, findings, differ Enhancement jurisdictional questions. express We the in im- deadly-weapon from a sen- legality as to of the no the First, enhancements are respects. portant imposed. tence in 42.01. mentioned article explicitly not of Criminal Procedure article Code be- important second distinction 44.01(b) ap right the State the “to finding and en- deadly-weapon tween a a in the ground sentence a case on peal upon examination of appears hancements illegal.” is Article 42.02 that the sentence 12 of the Penal Code. Under Chapter part “The sentence is that of provides: Ross, punishment of within the assessment judgment, suspension or order a revoking particular range part is sentence.9 sentence, imposition of the orders provides the 12 the Penal Code Chapter into execu punishment that the be carried offenses, in- ranges for punishment prescribed by in In tion the manner law.” repeat habitual and ranges cludes Ross,3 sen explained we State v. punishments offenders.10 duration portion than the nothing tence “is more repeat offend- prescribed for habitual setting pun the terms of out just as is the part ers sentence is 4 of the ishment.” It consists the facts prescribed for the of punishments duration itself, punishment including date Chap- in types other of offenses addressed dura commencement findings under ar- Deadly-weapon ter 12. tion, na or cumulative concurrent Chapter we appear ticle 42.12 not do ture of the term of confinement and in the facts to be included consider them fine, any.5 amount of the if Factors proper punishment to the pertaining confinement,11 merely they only part these facts are the term affect of the sentence. The article the duration the sentence.6 We also noted that affect State, (citing v. 860 S.W.2d 7. Marshall subsequent Id. first 1993)). (Tex.App.-Dallas he be having on conviction shall 143 become punished by imprisonment in the institutional Department of Criminal division of the Texas 8. Id. life, or for term of not more Justice for years.” than or less than 25 99 Ross, S.W.2d, Tex (holding 751 9. See 12.42(d). § punishment Penal.Code the duration of sentence). Kersh, (Tex.App.- 2 S.W.3d 2. State v. Dist.] [14th Houston 10. See Tex. Penal § 12.42. (Tex.Cr.App.1997). 3. 953 S.W.2d 12.35(c)(1) recognize en- that section 11. Id., 4. at 750. state-jail for a hances deadly weapon exhib- was used or 42.01, 1(9). § 5. See Tex.Code Crim. Proc. art. that of a third- in its commission to ited findings S.W.2d, Ross, felony. deadly-weapon degree at 751. legislature’s prescribe pun- decision to in taking jurisdiction did not err for exceptional ishments sentences appeal, I conclude that the court of those ordinary sentences in the same erred when held that the trial explicit manner supports the conclusion illegal court assessed an sentence. that both are included begin my discussion with a review of under “sentence” 42.02. article the relevant facts: March Furthermore, State,12 Sigler County grand jury Harris an in- returned proven held that enhancement allegations charging Wayne dictment appellee, Phillip facts, are historical pur- “offered for the Kersh, with possession of than less pose arriving at the *4 grams of methamphetamine, a controlled assessed.”13 Such facts are the type time, possession substance. At that of less information which Ross held the article grams 28 methamphetamine than was a limited, 42.02 definition of sentence was for felony of degree the second under Texas they prescribe the proper term of confine- § Health and Safety ment.14 481.112. The jury grand alleged, also for purposes of reasons, For the above hold punishment enhancement, appellee that that findings are prior convictions, felony had two one for may and that appeal the State burglary building of a posses- and one for trial court’s failure to consider such find methamphetamine.1 sion of ings assessing when punishment. Therefore, properly 27, July On appellee, being after jurisdiction took admonished applicable range as to the appeals’ this case. The court punishment, pled guilty to the offense is affirmed. charged pled “true” allegations. The trial court HOLCOMB, J., a dissenting filed found State’s evidence sufficient to opinion. appellee’s guilt substantiate of the offense HOLCOMB, J., a dissenting filed charged, but the court deferred an actual opinion. guilt appellee respectfully probation
I Although years. dissent. Tex.Code agree See majority 42.12, 5(a). § that the court of appeals Crim. Proc. art. The trial Ross, however, that at were issue in were any Corrections for term of not more than those that were 42.12, pursuant to article years. 2 20 or less than operate pursuant those that sec- However, 12.42(d) pro- § Texas Penal Code 12.35(c)(1), sepa- tion and therefore are not vided: rate from sentence in article 42.01. any felony be If it shown on trial of that offense the defendant has (1941). 12. 143 Tex.Crim. 157 903 finally felony been convicted of two fenses, Id., S.W.2d, previous felony and the con- (citing second at at 904-05 § viction is for sub- C.J.S. Criminal Law an offense that occurred sequent to the first 42.01, 1(19). § 14. See Tex.Code Crim. Proc. art. having become on conviction he shall punished by be Texas confinement in the offense, 1. At the time of the Texas Penal Code life, Department of or Corrections for 12.33(a) provided: § any term of not than or less more adjudged guilty An individual of a than degree punished by the second shall be Department confinement in the Texas dis- Judge, I don’t Defense Counsel: enhance- also found the allegations factual agree with the true. allegations But, very made. the State has 12, 1998, filed a January the Texas [of Article 42.12 terms of appellee’s probation motion to revoke Procedure], says Criminal Code of an his proceed with under chronological order Section alleged, motion relevant The State’s receiving plea of may, after judge the terms of part, appellee violated contendere, hearing the guilty or nolo by “failing prior probation his to obtain finding that it substanti- evidence from the court ... before permission further guilt, defer ates the defendant’s changing place of residence” adjudi- entering without proceedings drug abuse failing to attend an alcohol and the defendant place cation of program. treatment [ie., proba- community supervision the trial court held On June tion]. revoke. on the State’s motion to hearing statutory It give doesn’t hearing, following colloquy oc- At that of true or findings to defer for the Court *5 curred: saying I’m that it pleas of true. all, First the The Court: let’s discuss authority to a find- the defer the Court standing [Mr. habitual at this time. when revokes— guilt and then Prosecutor], you may proceed far as adjudicates guilt, to sen- or whatever — the State’s— put that he the for the offense tence Yes. would ask the Prosecutor: for, on deferred defendant judicial Court to take notice in range punishment this so papers file and all the contained Court’s twenty. case should be two and file, including plea papers in the The agrees. The The Court: Court the admonishments. We show would range punishment Court will use origi- that on the date of the Court twenty years. between two grant- nal when defendant was plea, the enhancement will not consider adjudication, ed he was admon- deferred this paragraphs in case. punishment, on ished record, Your Prosecutor: Just years years or life as a being to Honor, object on respectfully we would habitual. below the basis sentence further the de- We would show that illegal would be years pled fendant true to two enhancement him sentence ask the Court to we would paragraphs and that those enhancement years and life. between true paragraphs were found to be That will be overruled. The Court: Therefore, Judge, that time. to sentence the we would ask the Court thereafter, “true” appellee pled Shortly period prison to time defendant some motion, allegations in the years or life. between 25 and 99 allegations to the trial court found the you. Thank proceeded then true.2 trial court origi- guilty of the offense you any response, appellee to find Do Court: less than 28 nally charged possession [Defense Counsel]? — allegations, previ- Notably, hancement appellee did not renew punishment en- pleas ous of “true” to the grams methamphetamine sen- Appellee subsequently petition filed —and review, imprisonment tenced him for discretionary ar- he (1) gued that appeals July the trial court entered taking jurisdiction of the State’s following conclusions of into law (2) the trial court acted within its record: ap- discretion when it refused to consider “1. That the prior plea defendant’s pellee’s [of pleas “true” to the prior finding time] and Court’s granted ap- enhancement allegations. We void, true are finding because pellee’s true petition to determine whether the or not is premature true a finding where court of erred. guilt is deferred and a defendant is agree appellee that his sentence probation. illegal. My was not conclusion based on First, view, my considerations.
“2. That the Trial prevented Court was trial judge in case—the Honorable making from subsequent finding of T. ju- Michael McSpadden, a seasoned true because there is no mechanism for refuse, rist —had inherent deferring of true or not true on justice, ap- the interests of to consider paragraphs where pellee’s pleas of “true” to the Court has an adju- determined defer allegations.3 Judge McSpad- dication of place the defendant den reasonably could have concluded that probation. the punishment for an habitual “The Court therefore finds that defen- fender—25 to inap- or life—was dant’s conviction for meth- *6 propriate case, appellee’s since his of- amphetamine enhanced, cannot be fense (possession quantity small for this methamphetamine) previous of- and his primary years.” offense is to twenty (burglary building, fenses methamphetamine) were all non-violent appealed under Article and his 44.01(b) pro- violations of terms of the Texas of Criminal relatively bation (failing get were minor Procedure, arguing that trial court “[t]he permission residence, changing before fail- in sentencing Appellee [within] drug program). to attend a treatment unenhancéd of punishment.” The Fourteenth of Appeals agreed, ex- Second, agree with the trial court that that, plaining “[a]fter defendant] enters [a original finding punish- “true” to the guilty plea, the trial unitary becomes a allegations, ment enhancement a finding and, therefore, proceeding,” illogical “it is record, which pre- is reflected in the was say that a trial court can defer judg- mature, because at the the trial time court but finding ment not defer a on an finding, yet adjudicat- made that it had not Kersh, provision.” State v. appellee guilty ed the primary offense. (Tex.App.-Houston [14th Stated way, another enhance- Wittig Dist.] argued Justice dis- provisions ment only play come into after sent that While, view, the State’s should be dis- guilt. my Judge jurisdiction. missed for McSpadden want Id. 638- punish- could utilized the J., (Wittig, dissenting). adju- at the paragraphs analogous jury's justice, 3. This to a un- to consider evidence of refuse, questioned authority to in the interest hearing pre- upon appellee’s based dication “true,” McSpadden pleas Judge
vious required by law to do so. was reasons, I would reverse the For these and af- of the judgment trial court. firm the Texas, Appellant The STATE of MEDRANO, Appellee. No. 1919-02. Texas, Appeals of Criminal
En Banc. 4, 2004. Feb. *7 Islas, Paso, appellant. El E.
Luis Davis, Attor- District L. Assistant John Paso, Paul, Attor- ney, El Austin, for the ney, State.
OPINION J.,
PRICE, delivered the WOMACK, MEYERS, Court, in which HERVEY, JOHNSON, KEASLER, and JJ., joined. petition case comes before us of Texas
discretionary review the State State, whether Zani v. decide