State v. Mancuso

919 S.W.2d 86, 1996 Tex. Crim. App. LEXIS 21, 1996 WL 71519

• Court: Court of Criminal Appeals of Texas
• Decided: February 21, 1996
• Docket: 604-95, 811-95
• Status: Published

Opinions

OPINION ON STATE’S PETITIONS FOR DISCRETIONARY REVIEW

BAIRD, Judge.

Appellees were charged with two separate state jail felonies. Each charge was enhanced with two prior felony convictions. Appellees pled guilty to each offense.¹ The trial judge accepted the guilty pleas and, as the provisions of Tex.Penal Code Ann. § 12.35(e) were not applicable, the trial judge assessed punishment at two years confinement in a state jail. Imposition of the sentences was suspended and appellees were placed on community supervision probation for a period of five years. Tex.Code Crim. ProcAnn. art. 42.12, § 15. The State appealed each case, contending the sentences were illegal. Tex.Code Crim.ProcAnn. art. 44.01(b). The Court of Appeals affirmed.² We granted the State’s petitions for discretionary review to determine whether the Court of Appeals erred in holding the trial judge properly sentenced appellees under Tex.Penal Code Ann. § 12.35 and art. 42.12, § 15, rather than Tex.Penal Code Ann. § 12.42(d).³ We will affirm.

I.

It is the duty of the Legislature to make laws, and it is the function of the Judiciary to interpret those laws. See, Tex. Const. art. II, § 1; and, Boykin v. State, 818 S.W.2d 782, 785 (Tex.Cr.App.1991). “When we interpret statutes we seek to effectuate the ‘collective’ intent or purpose of the legislators who enacted the legislation.” Boykin, 818 S.W.2d at 785; and, Camacho v. State, 765 S.W.2d 431 (Tex.Cr.App.1989). Consequently, we focus on the text of the statute and interpret it in a literal manner attempting to discern the fair, objective meaning of the text. Boykin, 818 S.W.2d at 785. It is our duty while interpreting the statute to give the ordinary and plain meaning to the language of the Legislature. Id.; and, Smith v. State, 789 S.W.2d 590, 592 (Tex.Cr.App.1990). “Where the statute is clear and unambiguous, the Legislature must be understood to mean what it has expressed, and it is not for the courts to add or subtract from such a statute.” Coit v. State, 808 (Tex.Cr.App.1991). Only when the application of a statute’s plain language is ambiguous or would lead to absurd consequences which the Legislature could not possibly have intended, should we look to extratextual factors. Tex.Gov’t Code Ann. § 311.023 (Vernon 1995). See, Boykin, 818 S.W.2d at 785; and, Faulk v. State, 608 S.W.2d 625, 630 (Tex.Cr.App.1980). These extratextual factors include, but are not limited to executive and/or administrative interpretations, consequences of construction, goal of legislation, circumstances under which the statute was enacted and legislative history. Tex.Gov’t Code Ann. § 311.023; and, Boykin, 818 S.W.2d at 786. This exception to the general rule is not intended to, nor should it, intrude upon the lawmaking powers of the legislative branch and it should not be construed as an invasion of legislative authority. Failing an absurd consequence or ambiguous language this Court need not delve into the extratextual factors affecting a statute. Id.

Moreover, it is presumed in the enactment of a statute that the entire statute and all words in the statute are intended to be effective, and the language therein will create a just and reasonable result. See, Gov’t Code § 311.021 (Vernon 1995). If a general provision conflicts with a specific provision, the provisions shall be construed, if possible, so that effect is given to both. Gov’t Code § 311.026(a); Dillehey v. State, 815 S.W.2d 623, 632 (Tex.Cr.App.1991); and, Cheney v. State, 755 S.W.2d 123, 126 (Tex.Cr.App.1988). If the statutes are unable to be reconciled, the specific statute will prevail as an exception to the general statute, unless the general statute is the later enactment and the manifest intent is that the general provision prevail. Gov’t Code § 311.026(b).

II.

With the foregoing in mind, we turn our attention to the enactment of the relevant state jail felony laws, namely Tex.Penal Code Ann. §§ 12.35 and 12.42 and Tex.Code Crim.Proc.Ann. art. 42.12, § 15.⁴ Section § 12.35 provides:

(a) Except as provided by Subsection (c), an individual adjudged guilty of a state jail felony shall be punished by confinement in a state jail for any term of not more than two years or less than 180 days.⁵

(b) In addition to confinement, an individual adjudged guilty of a state jail felony may be punished by a fine not to exceed $10,000.

(c) An individual adjudged guilty of a state jail felony shall be punished for a third degree felony if it is shown on the trial of the offense that:

(1) a deadly weapon ... was used or exhibited during the commission of the offense or during immediate flight following the commission of the offense ...; or

(2) the individual has previously been finally convicted of any felony:

(A) listed in Section 3g(a)(l), Article 42.12, Code of Criminal Procedure; or

(B) for which the judgment contains an affirmative finding under Section 3g(a)(2), Article 42.12, Code of Criminal Procedure.

The mandatory language of subsection (a) governs all state jail felonies. The only exception to subsection (a) is subsection (c) which specifically provides for situations where a state jail felony shall be punished as a third degree felony. Consequently, under the plain language of § 12.35, in all non-subsection (c) situations the defendant shall be punished under subsections (a) and (b). In this latter context Tex.Code Crim.Proc. Ann. art. 42.12, § 15 comes into play and provides in pertinent part:

(a) On conviction of a state jail felony, the judge shall suspend the imposition of the sentence of confinement and place the defendant on community supervision....

[[Image here]]

(d) A judge may impose as a condition of community supervision that a defendant submit at the beginning of the period of community supervision to a term of confinement in a state jail felony facility for a term not to exceed ... one year if the defendant ... previously has been convicted of two or more felonies.

Art. 42.12, § 15, commonly known as the community supervision law, specifically provides for the enhancement of punishment for offenses under § 12.35(a) when there are two or more prior felony convictions.

The 73rd Legislature revised the repeat and habitual offender statute, § 12.42, to provide, in pertinent part, as follows:

(a) If it is shown on the trial of a state jail felony punishable under Section 12.35(c) or on the trial of a third degree felony that the defendant has been once before convicted of a felony, on conviction he shall be punished for a second-degree felony.

* * ⅜ * ⅜ ⅜

(d) If it is shown on the trial of a felony offense that the defendant has previously been finally convicted of two felony offenses, and the second previous felony conviction is for an offense that occurred subsequent to the first previous conviction having become final, on conviction he shall be punished by imprisonment in the institutional division of the Texas Department of Criminal Justice for life, or for any term of not more than 99 years or less than 25 years.

The State argues that 12.42(d) encompasses all felonies, including State jail felonies. Consequently, the State contends § 12.42(d) applies to the instant cases and the Court of Appeals erred in holding the trial court was required to sentence appellees under § 12.35 and art. 42.12, § 15. For the following reasons, we disagree.

III.

Prior to the 73rd Legislature, there were four classes of felonies: capital felonies, and felonies of the first, second and third degree. However, the 73rd Legislature created a new class of felony, the state jail felony. In connection with the creation of state jail felonies, the Legislature enacted § 12.35 and art. 42.12 § 15 and amended § 12.42(a). These statutes deal specifically with state jail felonies and prescribe the range of punishment therefor. Under § 12.35(a) and (b), the range of punishment for a state jail felony is confinement in a state jail for any term of not more than two years or less than 180 days and a fine not to exceed $10,000.00. Under art. 42.12, § 15(a), that sentence must be suspended and the defendant placed on community supervision probation. Art. 42.12, § 15(d) deals specifically with state jail felonies committed by one who has two or more prior felony convictions and provides that the trial judge may impose as a condition of community supervision probation a term of confinement in a state jail facility for a term not to exceed one year. Art. 42.12, § 15(d) controls the specific circumstances presented by the instant cases. Consequently, we hold the Court of Appeals correctly held the trial judge’s assessment of punishment in these cases was proper, i.e., legal.⁶

By the same token, we hold that under the law in effect at the time of the commission of the instant offenses, the only way a defendant’s punishment could be enhanced under the provisions of § 12.42 was if the defendant committed a state jail felony under the circumstances described in § 12.35(e) which mandates the defendant shall be punished for a third degree felony. For example, had appellees used or exhibited a deadly weapon while committing their state jail felonies, such conduct would have been punished as a third degree felony. That third degree felony offense could have been properly enhanced under § 12.42(a). However, the instant cases do not impact either § 12.35(c)(1) or (2).

Therefore, we hold the Court of Appeals correctly held that the instant state jail felonies could not be enhanced under § 12.42(d).⁷ The judgments of the Court of Appeals are affirmed.

WHITE, J., dissents.

1 .Mancuso was charged with the state jail felony of burglary of a building with the intent to commit theft alleged to have occurred on November 23, 1994. The information alleged two prior felony convictions for theft, neither of which fell under art. 42.12(3)(g) nor alleged affirmative findings of a deadly weapon. Mancuso pled guilty to the alleged offense and "true” to the enhancement paragraphs. The trial judge admonished appellee as to the range of punishment for a state jail felony, over the State's objection. Tex.Penal Code Ann. § 12.35(a). The trial judge found appellant guilty and the enhancement allegations "true” and assessed punishment at two years confinement in a state jail facility, probated for five years with a condition that Mancuso serve one year in state jail. The State unsuccessfully sought to have appellant punished as an habitual offender under Tex.Penal Code Ann. § 12.42(d).

Greenhaw was charged with the state jail felony of theft of property, valued at more than $1,500 but less than $20,000.00, alleged to have occurred on November 14, 1994. The indictment alleged prior felony convictions for delivery of a controlled substance and burglary of a building, neither of which fell under § 42.12(3)(g) offense nor alleged affirmative findings of a deadly weapon. Appellee pled guilty to the alleged offense and “true” to the enhancement paragraphs. The trial judge found appellant guilty and the enhancement allegations “true” and assessed punishment at two years confinement in a state jail facility, probated for five years with a condition that Greenhaw serve one year in state jail. § 12.35(a). The State unsuccessfully sought to have appellant punished as an habitual offender under § 12.42(d).

2 . State v. Mancuso, 903 S.W.2d 386 (Tex.App.—Houston [1st Dist.] 1995); and. State v. Greenhaw, No. 01-95-00150-CR, 1995 WL 348238 (Tex.App.-Houston [1st Dist.] June 8, 1995) (not published).

3 . The sole ground for review in Mancuso states:

The court of appeals erred in its statutory construction by concluding that the trial court was required to sentence Respondent under the terms of the community supervision law rather than the terms of the habitual offender law.

The sole ground for review in Greenhaw states:

The court of appeals erred by holding that the trial court properly punished appellant pursuant to the state jail punishment provision, rather than the habitual offender punishment provision.

4 . These enactments and amendments were only a part of the major revisions to the 1973 Penal Code under Senate Bill 1067 commonly referred to as the Penal Code Revision Bill. The Bill was passed by the 73rd Legislature and, in relevant part, became effective September 1, 1994, prior to the commission of the instant offenses. See, n. 1, supra.

5 . All emphasis is supplied unless otherwise indicated.

6 . We note that this holding is consistent with the legislative history. On April 20, 1993, prior to voting on Senate Bill 1067, which created the state jail felony offense and punishment laws, Senator Armbrister, questioned Senator Whit-mire, author of S.B. 1067, regarding the proposed punishment range for habitual offenders who commit state jail felonies:

SENATOR ARMBRISTER: .... could you go with us just briefly what the effect on the old habitual criminal would be, he's got two priors and then he commits one of these which is now a state, can that still be used for enhancement for a third time loser or habitual. How's that going to be handled?

SENATOR WHITMIRE: The fourth degree or the state jail felon will remain a state jail felon as long as he or she is committing state jail felonies. If you’ve committed a (3)g offense previously, you’re not eligible for a state jail.

SENATOR ARMBRISTER: Okay.

SENATOR WHITMIRE: Or if you commit a state jail offense with a weapon you’re not eligible, those two will enhance you. Otherwise, as long as you're in the loop so to speak in committing state jail felonies, you will remain a candidate for the state jail.

(Tape 1, side 1).

7 . As we conclude, we pause to note that the Legislature has amended § 12.42(a) and (d) and art. 42.12, § 15(a) and (d) to eliminate any confusion in the application of §§ 12.35, 12.42 and art. 42.12, § 15.