*1 See, should be admitted. Jones v. parties may given. When a detailed (Tex.Cr.App.1978). act, declaration, writing conversation or act, evidence, given decla- requested is denied. The relief necessary to writing ration or which is explain fully make it understood or to given also be evidence.” petitioner part of Dr. An-

Since admitted testimony, previous

derson’s introduc- containing portion

tion of the the extrane-

ous offense was not error. The extraneous disputed

offense related to a material issue competency. appellant’s in the case: Lynn parte Dale BLUME. Ex petitioner’s retrospective hearing, At No. 65266. built a case around mani- pulative exposed behavior. The State Texas, Appeals of Court of Criminal that, extraneous offense to show because En Banc. commitment, charges against the civil July petitioner had been dismissed. Not only did the commitment result in the dis- charges,

missal of subsequently peti-

tioner escaped custody. from The State’s

theory focused the facts that the com-

mitment incompeten- did not show mental contends,

cy, petitioner as the but showed

exemplary manipulative behavior. The

questions concerning the extraneous of-

fense were develop relevant the State’s

theory petitioner feigned ill- mental 59,663, (No.

ness. See Ballew v. State 17, 1980) (pending

December on motion for

rehearing). ground of error is over-

ruled.

Moreover, petitioner’s objection to misplaced extraneous offense is

competency hearing. purpose The basic

the exclusion of extraneous offenses is to

prevent being the accused from tried for

some being collateral crime or for a crimi generally.

nal Campos v. purpose Such is not

applicable competency hearing. pe in a A guilt

titioner’s or innocence is to be deter

mined separate in a trial where extraneous generally prohibited.

offenses are

46.02(4)(a), competency V.A.C.C.P. In a

hearing, concerning peti all relevant facts

tioner’s mental competency should be sub Watson,

mitted to jury. parte su

pra. If the extraneous offense is relevant issue,

and material to this contested

374

court further found “from an examination by of the record and from admissions enhancing felony that the conviction a felony was for an offense not made under law, punishment that the should Texas be set aside.” the find by not bound This Court is conclusions, ings, or recommendations of post- reaching court in decisions on the trial application for writ of habeas conviction Ramirez, corpus parte relief. 577 261 S.W.2d question presented is The sole 2 Penal a fed whether under the new Code Huttash, Austin, Atty., for Robert State’s for an offense which does eral conviction the State. felony the Texas not constitute a under punish be used to enhance Penal Code can V.T.C.A., 12.- ment under Penal 42. We hold that it can.

OPINION Code,3 the enhance- the old Penal Under provided ment articles as follows: DAVIS, Judge. W. C. conviction for Subsequent “Article 62. post-conviction This application is an for on trial of a felony. If it be shown pursuant writ of habeas to Article corpus defend- capital that felony less than Petitioner was Vernon’s Ann.C.C.P. convicted of the same ant has been before 18, felony pos- August convicted on 1978 of nature, or one of the punishment his session of marihuana and subsequent such second or punishment on third-degree felony enhanced1 from a to a highest which is shall be the conviction second-degree felony by prior the use of a of such of- to the commission affixed felony conviction in Federal Court. On Oc- ordinary cases.4 fenses 8,1980, petition- tober this Court remanded felony. Third conviction Article 63. application er’s court back to the trial times con- Whoever shall have been three findings of fact as to whether the federal capital shall less than victed conviction was enhance- indeed used for imprisoned for conviction be on such third (Tex.Cr.App.). ment. life in the determination, Within this factual which is felony”, us, speak of “a now While these statutes before the trial court finds 47, which Vernon’s Ann.P.C. by conviction “was enhanced it was Article 47, supra, Article “felony”.5 Under Applicant’s plea of true to a felo- defined misde- conduct could be ny in Federal The trial before Court.” 12.42(a). act or omission forbidden “An offense is an 1. annexed, law, by positive on and to which V.T.C.A., 1973, Legis- 2. Acts 63rd conviction, any prescribed in this lature, January Chap. effective must —be An offense Code. —not by Chap. Legislature, amended 426, Acts 63rd by punishable confinement death January effective 1974. felony; every penitentiary other offense is a capital either is a misdemeanor. Felonies are Ann.P.C., Legislature, 3. Vernon’s Acts 39th capital. An offense for which or not felony. capital highest is death is a misde- emphasis are divided into felonies 4. All added writer of this Offenses unless otherwise indicated. meanors.” 47, supra, provided: 5.Article

375 “offense”, they meanor less were for it had to constitute an crimes denounced something and an offense was defined as Legislature of Texas as felonies. See also law, by positive “forbidden and to which is Puckett, Ex Parte 310 Tex.Cr.R. annexed, conviction, any punishment (1958) Clark v. prescribed in this code”. Tex.Cr.R. The first construing case su- *3 State, supra, As noted Garcia pra, State, was Arnold v. 127 Tex.Cr.R. statutory guidance Court without (1934) (opinion S.W.2d 997 rehearing), classify pur for convictions enhancement wherein the defendant contended that hence, poses: the rationale set forth in Ar applicable statute was not because one of State, supra, nold v. became the rule. Such prior his convictions was had in Federal forty was the state of the law in Texas for Court. This Court stated: however, years; with the enactment of the stresses, “The point appellant exact Code, sig new Penal made namely, that the conviction in the federal changes wording nificant of the enhance court pen- cannot be used to enhance the ment statutes. him, alty against stated, as above passed been on so far as the members of pro- 12.42 now V.T.C.A. Penal this court are aware. Considered vides as follows: light however, precedents, upon “(a) If it be shown on the trial of general subject of the trial of habitu- third-degree felony that the defendant criminals, al no sound perceived reason is any has been once before convicted of for setting present aside judgment. felony, punished on conviction he shall be above, As stated one of prior convic- second-degree felony. for a against tions the accused was in the Unit- (b) If it be shown on the trial of a ed States court. It was in the state of Texas, however, second-degree felony defendant and was for an offense by any has been once before convicted of of the state.” felony, punished on conviction he shall be Next, in Garcia v. 140 Tex.Cr.R. first-degree felony. for a the defendant was convicted for assault (c) with intent If it be shown on the trial of Punishment, murder. by enhanced use of first-degree felony that the defendant several felony convictions in both federal any has been once before convicted states, foreign courts of was assessed at felony, punished on conviction he shall be imprisonment pursuant life to Article by Department confinement in the Texas supra. Initially, rejected the Court ap- life, any of Corrections for or for term of pellant’s contention that felony convictions years not more than 99 or less than in federal support courts will not impo- years. sition of a life sentence. posited: The Court (d) If it be shown on the trial of only question “The which we consider to felony offense that the defendant has open by this Court is previously been convicted of two whether or not the convictions must offenses, previous felony and the second be for offenses which are denounced conviction is for an offense that occurred the law of Texas as felonies.” subsequent previous to the first convic- The Court looked for an answer in the final, having tion become on conviction he legislative history pro of the enhancement punished by shall be confinement in the visions, but found none. The Court then Department Texas of Corrections guidance turned for language in Ar life.” above, quoted nold v. and concluded Under the new that convictions for felonies in federal 1.07(a)(14), “felony” courts and is defined as courts of other states would not support the enhanced in Texas un- follows:

“ enhancement, pursuant available for designated an ‘Felony’ means offense so punishable law death or confine- or V.T.C.A. Penal Code. Petitioner was ment in a concealing receiving convicted of a sto- vehicle, proscribed motor len an offense 1.07(a)(20), Under V.T.C.A. Penal provides: ’ “ 18 U.S.C. ‘Law means the constitution or a stat- conceals, stores, receives, “Whoever bar- ute of this or of the United States ters, sells, disposes or motor vehi- aircraft, as, moving or which is a cle or however, importantly, Most of, which or part constitutes interstate specifically ture enacted a statute to deal commerce, knowing foreign the same to for enhancement the classification stolen, be fined not more have been shall purposes of convictions obtained outside the $5,000 imprisoned than for not more states, part: 12.41 Code. Section years, than five or both.” subchapter, any purposes “For of this *4 4083, 18, provides part: in Title U.S.C. § prosecu- from a conviction not obtained against “Persons convicted of offenses tion under this code shall be classified as the courts-martial United States follows: imprisonment for more punishable by (1) degree’ ‘felony of the third if confine- in may be confined year than one penitentiary ment in a is affixed to United States possible punishment, the offense as a peti- Thus, for which federal offense the in confinement tioner was convicted carried provi- Contrasting the old code with the punishment. penitentiary possible as a the sions of the new can be no doubt there 12.41(1), supra. con- that intended to make he that in courts as well also contends petitioner victions for felonies federal in as courts of states available for en- of counsel the effective assistance denied purposes. investigation hancement was conduct pre-trial no that attorney. There is noth by his ed defense State, However, Montgomery v. 571 support this which would ing in the record (Tex.Cr.App.1978), since 18 decided S.W.2d the alle proof of assertion. The burden the effective date of the new Penal a to relief prisoner entitle the gations which panel of this Court followed the rule an Alexan Parte upon petitioner. code; e., felony the old i. nounced under We (Tex.Cr.App.1980). der, 598 308 S.W.2d law must be under Federal an offense not sus has petitioner conclude that felony which is denounced as a under Texas proof. burden of tained his State, (Tex. 548 410 law. Smith v. S.W.2d decided since the new Cr.App.1977), also denied. requested is The relief Montgomery, in and cited in It is so ordered. prior federal conviction volved the use of a I,Art. 11—a of the deny to bail under ROBERTS, J., participating. applied the

Texas Constitution. The Court federal offense old rule but found that the CLINTON, concurring. Judge, by Texas law. Both was also denounced relied on former Montgomery and Smith and authorized empowered Were we authority, and in Penal Code cases for their weigh to determine the first instance neglected to consider both cases this Court to and then public policy considerations Insofar of the new Penal Code. the effect re- decision with consequential make ap turn on the Montgomery and Smith habitual repeat spect rule, they are overruled. plication of this offenders, might urge the Court I rule that established rationale adhere to application, Turning back to State, v. Montgomery merely conviction was followed that the federal we conclude 377 Indeed, join I With these observations 571 18 S.W.2d for the Court. might that reasonably one conclude public policy presently of Texas J., ONION, joins. P. federal

rejects underlying the notion pun- sought to be offense used to enhance TEAGUE, Judge, dissenting. State, supra

ishment —a de- when this Court May Since of firearm insists mild form control —and State, 127 cided Tex.Cr.R. 74 Arnold v. regu- attach to no kind law in this State acquisi- latory pertaining simple scheme been conviction from a for- tion of a firearm. between Similar tensions jurisdiction may eign not be used or Federal per- federal and state interests well punishment purposes for enhancement situations, in other need not upon ceived but I an offense predicated unless it was the laws of engage that academic make was also exercise Montgomery v. Texas. See point. (1978). Today, Title Provisions Montgomery, and buries changes the law D, Subchapter 12.43, 12.42 and §§ colors, and sub silentio over- without full Legislative Department are creations of the Arnold, supra, and Garcia v. rules people in which the law- have vested their (1940).1 Tex.Cr.R. making power, III, Constitution respectfully in the law I To this Texas, of the State of Judicial and the dissent. Department yet been constitutional- *5 many why change such There reasons are ly permitted proper- “any power to exercise Upon in the law is unwarranted. close ly Legislative attached” to either the or majority’s attempts justify to analysis, the II, Departments, Executive see Article § lacking logic holding its both and skill is Any proposi- id. further discourse on that statutory construction. superfluous. tion is very simple is the fact First and foremost enactments, Legis- By supra, its cited the Legislature, presumed that the it is lature, deliberation, presumably upon due enacting to consider new when it meets consciously judicial gloss removed the laws, old of repealing laws is aware this previously applied Anderson, to provisions antecedent See State Court’s decisions. codes, of penal the former of observations 119 Tex. 26 S.W.2d accurately opin- which are described in supra, Sep- was decided on Montgomery, Thus, through ion for the Court. though 1, 1981, On June almost tember 1978. application of the classification of offenses later, Legislature of this years three penal 12.41, supra, outside § its 67th session. Interest- completed State public policy may be State of Texas Legislature presuma- ingly, though the egregiously so offended that constitutional Mulchahey, Montgomery and bly aware of protections implicated, are the case at bar overrule substantively single not one bill proposed by present Mulchahey was does not such an instance.1 presented, conjure up suppose this Court would be im example, raised and pelled an To extreme light the situation in of con to examine of this State record citizen has a criminal and, my judgment, flicting policies, public conducting bingo game of today. should do so. But organization behalf of a veterans in a sister clearly classi state which has majority does not see fit to discuss 1. As the meaning fied that offense as a within the unanimous of Ex this recent Court’s Yet, supra, related definitions. parte Mulchahey (No. 67,278, 4/1/81, State’s people late November 1980 election the motion for leave to rehearing file motion for plainly approved empowering of this unanimously 4/29/81), it, too, denied has been just Legislature regulate” to “authorize and sub Chronologically, silentio overruled. how- bingo games, very thereby endorsing the such ever, got it has to be one of the shortest-lived penalized by sister conduct denounced and unanimous decisions ever handed down this Certainly, properly if state. the issue were Court. Legislature to the view which this Legislature.2 a member of the 67th Com- Court Carvajal pare, v. would take In these three Court’s decision [in future]. (1975), regular the en- sessions the act- 12.46, ed, actment only of Y.T.C.A. Penal Sec. and we can construe their failure to Carvajal effectively overruled act as an endorsement of the construction give our statute which these cases to it.” is the statute itself. Y.T.C.A. Pe- Second Id. at 182. 12.42(d), present “habitu- nal statute,” substantially al criminal a reco- Judge Beauchamp say? also But what did dification of former Penal Art. 63. In Code message Legislature by He sent a it drafting the remainder of 12.42 was change if desired to the law Garcia that necessary qualifica- to eliminate the former conviction, encompass all that any tion “of the same or one of the phrases was needed was to add the words or nature,” catego- because of the new state, or in “in this or in This, felonies, rization of see 12.04. statutes. federal court” to the enhancement however, any intent does not evidence on November Garcia was decided change the former law as established in years ago. Legislatures have almost 41 Garcia, supra. recently of June gone, come and most august body of day to this Third, I do not believe the fit to government has not seen import holding and the grasps the of its of our recidivist-enhancement substance Supreme reason which the rule fact, statutes. In since in Kirschner v. Court of Wisconsin stated ture has enacted recidivist-enhancement adopted 9 Wis. 140 which was in substance that have not varied by this Court in Garcia: “Inasmuch as each statutes, except for the original from the itself, peculiar state has a criminal code below. Other- change noted classification may regarded so that what as an infa- wise, in the substance there is no difference mous crime in one state not be in ” But, the predecessors. 12.42 and its Garcia, supra, another .. .. facto, very tenuous majority, ipso at 181. fashion, differ- is a substantial says there Fourth, enhancement or recidivist stat- *6 statutes, inform us not ence in the but does strictly are be construed. “It has utes from its 12.42 varies “guts” how the of Sec. such a statute often been commented that submit, today, I majority predecessors. The generally is a harsh one and it is conceded dixit; ipso merely ipse rather than acts strictly con- that harsh statutes must be facto. Changing the law an in- strued.” Id. par- nuances Although recognizing the statutes, interpretation ferential statutes, and ticular recidivist-enhancement Legislature refrained from where the have many states recognizing that also specifically amending long-established a so Beauchamp’s recom- Judge since followed proposes improper, yet majority rule is nevertheless, my re- mendation, supra, see here. just to do that its Cf. that have recidi- states reveals that search 1.05(a). V.T.C.A. Sec. to ours similar vist-enhancement attempts to majority, by implication, The prohibit those statutes have construed say Legislature finally that the heard what felony conviction out-of-state the use of an distinguished two former members of this by the laws of it is also denounced unless Garcia, supra. Court said in Arnold and annota- the numerous own state. See their Garcia, Judge Beauchamp, said: “While Reports. Law found in American tions lay [Judge he Morrow in did not Arnold'] out majority reaches long arm of the rule, strong give down a he did intima- grabs hold and present Penal Code tion, of the into the sufficient to call the attention note, however, significant that Mul- It is chahey was decided while the 67th in session. “felony” definitions of and “law” recidivist-enhancement statutes that Texas and, appears with what to be almost a places two-prong requirement on the use feeling euphoria, cites us to 12.41 to Sec. foreign of a federal or conviction for state position. sustain its This is understandable punishment: enhancement of However, considering the result it reaches. classified, (1) The offense must be see majority what “quick overlooks in its 12.41, supra, a felony Sec. and reach” very simple is the fact that Art. 47 (2) The see substance of the of the former Penal “felony” Code defined Mulchahey, supra, and must in substantially way the same as it is now be laws of Texas. defined —an possible offense which has a punishment The above demonstrates penitentia- of confinement in a Montgomery-Mulchahey ry. Although decisions majority, setting out exclusive, Art. emphasizes “any punishment pre- mutually 12.41 are not code,” scribed in this explain fails to how compatible but are one another distinguishes Art. 47 from Sec. 12.41. applied concertedly determining are to be changed, The words have but the substance foreign whether a federal or state convic- remains the same. may tion pun- be used for enhancement of purposes. ishment

A reading of 12.41 will reflect that it does apply per se to our recidivist-en- I understand the rule of stare decisis to statutes, hancement provided which are establishing precedent be one of and au- pertains non-penal to how a decisis, thority. The doctrine of stare sim- code classified, e., offense will be i. classifi- ply put, is that when this Court has once being dependent cation upon punishment— law, principle established a it will adhere jail, penitentiary, See, g., fine. e. Platter principle and apply it to all future As one, salutary cases. The doctrine is a Judge Clinton said in Betancourt v. ordinarily departed should not from “standing alone addressing principle when a decision or definitional, only Sec. 12.41 is without any long standing. law of also Black’s Law operative effect coupled unless with some (5th 1979). Dictionary, page 126 Ed. subsection of Sec. 12.42 for penalty pur- so, doing Without basis in fact for I poses.” Nowhere does 12.41 set out an believe that a of this Court intent to deviate from long-standing departing from the doctrine of stare decisis Garcia, rule of supra. Contrary to the ma- holding in this cause that federal or jority’s assertion that “there can be no foreign state now be legislature doubt that the intended to make pur- used for enhancement of convictions for felonies in federal courts as poses pursuant to Sec. 12.42. well as courts of other states available for *7 purposes,” enhancement adoption reasons, I foregoing For the above and new penal code in 1973 did not evi- [the] respectfully dissent of the decision dence intent part on the majority misconstruing our recidivist-en- ture that a different should hancement statutes. govern. thereafter Carvajal v. supra, and Commentary the Practice to Sec.

12.42(d), supra. Legislature’s most

recent omission to indicate a is of

major significance because we are here ad- construction,

dressing a matter of statutory decision,

not of judicially created rules of evidentiary matters. Shivers

It is evident from the above observations past interpretations this Court’s of our