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 FILED
COURT OF CRIMINAL APPEALS
10/9/2017
DEANA WILLIAMSON, CLERK
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 276TH 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
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, 276th 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)
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
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
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
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
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.
6701l-‐1 …………………………………………………………………….
7,
10
vii
STATEMENT
OF THE CASE
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
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
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
2
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).
3
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).
4
SUMMARY
OF THE ARGUMENT
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.
5
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
6
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
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).
7
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 6701l-‐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
8
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 71st
Legislature (effective, July 1, 1989)
is attached as “Appendix B.” The law
9
was amended by the 72nd Legislature, effective September 1, 1991, as seen
in attached “Appendix C.” Finally, the law was repealed by the 73rd
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
10
directive such as found in Art. 6701l-‐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. 6701l-‐1. Furthermore, the Court of Appeals cited to
11
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
12
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
13
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.
14
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
15
CERTIFICATE
OF SERVICE
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
16
CERTIFICATE
OF COMPLIANCE
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