COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 2-03-234-CR
THE
STATE OF TEXAS STATE
V.
PATRICK
WAYNE VERHOEVEN APPELLEE
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FROM
THE 213TH DISTRICT COURT OF TARRANT COUNTY
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OPINION
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I. Introduction
In
a single point, the State of Texas challenges the trial court’s grant of
appellee Patrick Wayne Verhoeven’s (“Verhoeven”) motion to quash the
jurisdictional enhancement count of his felony driving while intoxicated
(“DWI”) indictment. The State complains that the trial court erred in
granting the motion based on the finding that Verhoeven’s 1984 DWI conviction
did not qualify for enhancement use under section 49.09. Tex. Penal Code Ann. § 49.09 (Vernon
Supp. 2004-05). We affirm.
II. Factual and
Procedural Background
Verhoeven
was indicted for DWI, allegedly committed on June 28, 2002 and jurisdictionally
enhanced to a felony by two prior DWI convictions, dated November 30, 1984 and
May 27, 1998. Verhoeven filed a motion to quash the indictment, contending
that his November 30, 1984 DWI conviction could not be used for enhancement
purposes because it was time-barred by an application of the “ten-year rule”
pursuant to section 49.09(e). The trial court granted Verhoeven’s
motion, resulting in this appeal.
III. State’s
Right to Use 1984 Conviction
In
its sole point, the State complains that the trial court erred in basing its
decision to grant Verhoeven’s motion to quash the indictment on a finding that
Verhoeven’s 1984 conviction did not qualify for use in the enhancement
paragraph of the indictment. The State contends that the DWI enhancement
statute does not prohibit the State from using Verhoeven’s 1984 conviction.
DWI
is normally a misdemeanor offense. Tex.
Penal Code Ann. § 49.04 (Vernon 2003). However, when the driver has two
prior DWI convictions the offense may be jurisdictionally “enhanced” to a
felony. Id. § 49.09(b). A prior conviction cannot be used for
enhancement if it satisfies certain statutory requirements found in section
49.09(e). The State argues that Verhoeven’s 1984 conviction is properly
included in the enhancement count of Verhoeven’s indictment because the prior
conviction fails to meet one of the conjunctive requirements of that section.
Specifically, the statute provides that a prior conviction cannot be used for
enhancement if it is (1) a final conviction under section 49.09(d), and (2) a
remote prior conviction, which is a conviction (a) more than ten years old and
(b) separated by ten years from any other DWI conviction.1
Id. § 49.09(e). As the remoteness requirement is not an issue
raised by the State, we examine the first of the conjunctive requirements
regarding a final conviction. Section 49.09(d) provides that a final conviction
is “a conviction for an offense under [Chapter 49 of the Penal Code] that
occurs on or after September 1, 1994 . . . whether the sentence for the
conviction is imposed or probated.” Id. § 49.09(d). The State
avers that, under a literal reading of the statute, Verhoeven’s 1984
conviction is not final because it was neither charged under Chapter 49, which
became effective September 1, 1994, nor did it occur on or after that date.
Therefore, it cannot be excluded from the enhancement count of his indictment
because it is not “final.”
A. Standard of
Review
When
interpreting a statute, we attempt to effect the intent of the legislature.
Griffith v. State, 116 S.W.3d 782, 785 (Tex. Crim. App. 2003) (citing Boykin
v. State, 818 S.W.2d 782, 785 (Tex. Crim. App. 1991)). This requires
interpreting an unambiguous statute literally, unless doing so would lead to an
absurd result. Id. If a literal reading of the statute leads to an absurd
result, we resort to the use of extratextual factors to determine legislative
intent. Id. For example, if a statute may be interpreted
reasonably in two different ways, a court may consider the consequences of
differing interpretations in deciding which interpretation to adopt. Muniz
v. State, 851 S.W.2d 238, 244 (Tex. Crim. App.), cert. denied, 510
U.S. 837 (1993). If one interpretation yields absurd results while the
other interpretation yields no such absurdities, the latter interpretation is
preferred. Id.
B. Application
of Statute’s Literal Language
“The
starting point in analyzing the meaning of a statute is the language of the
statute itself.” Ex parte Evans, 964 S.W.2d 643, 646 (Tex. Crim.
App. 1998). Section 49.09(e)(1) indicates that a conviction may not be
used for enhancement if “the conviction was a final conviction under
Subsection (d).” Subsection (d) provides, “For the purposes of this
section, a conviction for an offense under Section 49.04 [i.e., a DWI
offense] . . . that occurs on or after September 1, 1994 is a final conviction,
whether the sentence for the conviction is imposed or probated.” Tex. Penal Code Ann. § 49.09(d).
Chapter 49 of the Penal Code became effective on September 1, 1994.2 Prior to that date, DWI convictions were charged
under article 6701l-1,3 including
Verhoeven’s 1984 conviction. Applying the literal language of
subsections (d) and (e)(1), the State concludes that Verhoeven’s 1984
conviction charged under article 6701l-1 is not final and, therefore, its
use for enhancement is not precluded.
However,
at least two difficulties arise when the State’s interpretation of subsection
(d) is considered together with the ten-year rule’s application to the issue
of remoteness found in subsections (e)(2) and (3). See supra
footnote 1. First, under the State’s interpretation, these provisions
create a ten-year period during which it is impossible for any prior conviction
to satisfy the requirements for exclusion. That is, prior to September 1,
2004, there could be no remote final convictions because section 49.04 was not
effective until September 1, 1994, so there could be no instance of a DWI
offense being committed ten years after a prior section 49.04 conviction until
September 1, 2004. During this period, the exclusionary rule of subsection
(e) is rendered wholly ineffective. This literal interpretation is
problematic because it is illogical and improper to presume that the legislature
intended part of the statute to be ineffective for ten years. See Tex. Gov’t Code Ann. § 311.021(2)
(Vernon 1998); Flowers v. State, 815 S.W.2d 724, 728-29 (Tex. Crim. App.
1991). Generally, courts are to presume that every word in a statute has
been used for a purpose and each word, phrase, clause, and sentence should be
given effect if reasonably possible. State v. Hardy, 963 S.W.2d
516, 520 (Tex. Crim. App. 1997).
The
second difficulty with the State’s interpretation is that, for offenses
committed after September 1, 2004, the provisions have the disparate effect of
punishing offenders with ancient remote prior convictions more harshly
than offenders with recent remote prior convictions. For example, in 2008,
a DWI offender with 1995 and 2006 convictions would be charged with misdemeanor
DWI (because the 1995 conviction is both final and too remote under the ten-year
rule), while someone with prior DWI convictions from the 1930s and 1950s would
be charged with a third degree felony (because the convictions are not
“final” and both finality and remoteness are required).
The
use of convictions more than ten years old does not, in and of itself,
constitute an absurd result.4 It is, however,
absurd to treat some offenders with remote prior convictions differently than
others, particularly where ancient prior convictions are used for
enhancement and recent remote prior convictions are not. The Texas Court
of Criminal Appeals has reasoned that disparate treatment of offenders under an
enhancement statute can lead to an absurd result. See Griffith,
116 S.W.3d at 785. In Griffith, the State sought to use the defendant’s
prior conviction to enhance punishment under section 12.41(c)(2) of the Penal
Code, the punishment provisions for repeat sexual offenders. Tex. Penal Code Ann. § 12.42(c)(2)
(Vernon Supp. 2004-05). The defendant’s prior offenses were committed in
Texas and charged under predecessor statutes not enumerated in the current
statute. The court recognized that the current statute’s literal
language would lead to disparate treatment of repeat sex offenders in that prior
out-of-state convictions for substantially similar offenses could be used for
enhancement while convictions for substantially similar offenses committed under
prior Texas law could not. Griffith, 116 S.W.3d at 785.
Concluding that disparate treatment of sex offenders was an absurd result that
the legislature could not have intended, the court held that prior convictions
for substantially similar offenses could be used for enhancement regardless of
whether they were committed out-of-state or in Texas. See id. at
786. A disparate treatment consequence akin to that found in Griffith
exists under the State’s interpretation of subsection (d) of section 49.09.
DWI offenders with remote prior convictions that occurred post-1994 would be
free from jurisdictional enhancement, while offenders with ancient prior
convictions would not. This is an absurd result that the legislature could
not possibly have intended.
Because
a literal application of subsection (d) rendered subsection (e)(1) superfluous
until September 2004 and also results in disparate treatment of offenders with
prior convictions, we conclude that a literal application of subsection (d)
leads to absurd consequences. Where application of a statute’s plain
language would lead to absurd consequences that the legislature could not
possibly have intended, the language should not be applied literally. Boykin,
818 S.W.2d at 785. This is a narrow exception to the plain meaning rule
and does not intrude on the lawmaking powers of the legislative branch but
rather demonstrates respect for that branch, which we assume would not act in an
absurd way. See id.
Where
the plain language of a statute leads to absurd results, it is constitutionally
permissible for a court to consider extratextual factors in arriving at a
sensible interpretation of the statute. Id. In that regard,
we first note that the Texas Court of Criminal Appeals has examined the
implications of subsection (d) in the larger context of section 49.09. See
Ex parte Serrato, 3 S.W.3d 41, 42 (Tex. Crim. App. 1999). In Serrato,
the question was whether the legislature intended to allow the State’s use of
probated DWI convictions which occurred before the enactment of section 49.09
for the purpose of enhancement under the newer provision. Id.
The court answered in the affirmative, holding that the statute clearly resolved
the issue. Id. at 42-43. The court did not reason that
convictions under prior law could be used because they were not excluded by
subsection (e), as is the State’s argument here. Rather, the court found
that the new provisions expressly incorporate prior law. Id. at 43.
[The] Applicant was convicted of driving while intoxicated . . . . The relevant
penalty enhancement provision provides: “If it is shown on the trial of
an offense under Section 49.04 . . . that the person has previously been
convicted two times of an offense relating to the operating of a motor vehicle
while intoxicated . . . the offense is a felony of the third degree.”
Article 49.09(c) specifically defines the term “offense relating to the
operating of a motor vehicle” to include “an offense under Art[icle] 6701l-1
Revised Statutes, as that law existed before September 1, 1994.”
And the former DWI law to which the statute refers 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.”
Id.
at 42-43 (citations omitted).
The
Texas Court of Criminal Appeals concluded that the legislature had a “specific
intent to keep the law the same as its previous incarnation” and noted that
subsection (d) was enacted to state that probated convictions under the new
statute are, like probated convictions under the old statute, considered final
convictions. Serrato, 3 S.W.3d at 43. [B]y incorporating the
prior DWI statute, as that law existed before enactment of the new statute, the
legislature declared its intent to continue the status quo, which included
permitting probated DWI convictions for enhancement if the offense occurred
after January 1, 1984.” Id.
The
principle underlying Serrato is that convictions that were final under
prior law are also final under the new provisions. Applied to the facts of
Serrato, the result was that the State was permitted to use the
defendant’s 1990 and 1993 convictions.5 Id.
Recently, the Tyler Court of Appeals relied on Serrato in a case where
the defendant’s prior conviction was barred by an application of the current
ten-year rule. Getts, 2003 WL 22456104, at *2. The court
concluded that a 1984 conviction is a final conviction and, when it is also
barred by an application of the ten-year rule, it cannot be used by the State
for enhancement purposes. Id. at *3.
Without
citing Serrato, the Amarillo Court of Appeals recently applied prior
article 6701l-1(h) to determine whether a 1984 conviction was final.
Nixon v. State, No. 07-03-0072-CR, 2004 WL 757970, at *2 (Tex.
App.—Amarillo Apr. 8, 2004, pet. ref’d). There, the appellant was
indicted in January 2002 for DWI. Prior DWI convictions occurred in 1995 and
January 1984. The 1984 conviction was based on an offense committed in
September 1983, charged under article 6701l-1, and probated. The
court summarily applied article 6701l-1(h), the law in effect at the time
of the offense. Subsection (h) reads, “[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.”6
The court employed rules of construction to conclude that, for a probated
offense to be final, the offense itself must occur on or after January 1, 1984.
Id. at *2.
The
Dallas and Eastland Courts of Appeals have also found that convictions are final
so long as they occurred on or after January 1, 1984 and a sentence was imposed
or probated. See Williamson v. State, 46 S.W.3d 463, 466-67
(Tex. App.—Dallas 2001, no pet.); Rizo v. State, 963 S.W.2d 137, 139
(Tex. App.—Eastland 1998, no pet.).
Under
the rationale of Serrato and its progeny, Verhoeven’s 1984 conviction
is a final conviction because section 49.09 incorporates article 6701l-1,
the DWI law prior to September 1, 1994, in its entirety. Under the former
article, a conviction is final if the offense occurred on or after January 1,
1984. Under Nixon, the law in effect at the time of the offense
controls the finality of the conviction. We are aware of no courts that
have held that conviction for an offense occurring on or after January 1, 1984
where the sentence was imposed or probated is not a final conviction.
Accordingly, Verhoeven’s November 30, 1984 conviction is excluded from
enhancement use because it is both final and unavailable for use under the
ten-year rule.
Even
if the current DWI enhancement statute did not expressly incorporate the
provisions of article 6701l-1, we find authority under Griffith
and Boykin to effect legislative intent in cases where the literal words
of the statute do not. See Griffith, 116 S.W.3d at 785; Boykin,
818 S.W.2d at 785. We hold that Verhoeven’s 1984 conviction is a final
conviction under section 49.09 (e)(1) and satisfies each requirement for
remoteness under section 49.09(e)(2) and (e)(3). Therefore, Verhoeven’s
1984 conviction cannot be used to enhance his misdemeanor DWI offense to a
felony. We overrule the State’s sole point.
IV. Conclusion
Having
overruled the State’s sole point on appeal, we affirm the judgment of the
trial court.
BOB
MCCOY
JUSTICE
PANEL
A: LIVINGSTON, DAUPHINOT, and MCCOY, JJ.
PUBLISH
DELIVERED:
October 7, 2004
NOTES
1.
Part (b) of this requirement is the so-called “ten-year rule.” Under
the current statute, applicable to this case, the ten-year period is measured forward
from the prior conviction at issue using one of four possible dates: the
judgment entry date (applicable here), the community supervision discharge date,
the parole completion date, or the completion date for service of a term of
imprisonment or confinement. For a conviction to be remote through the use
of the ten-year rule, two conditions must be met: (1) the current offense
occurred after the ten-year period and (2) no intervening convictions were
incurred (i.e., the offender was not convicted of additional
intoxication-related offenses during the ten-year period). Thus, if ten
years lapsed between any two consecutive convictions, the older of the two
cannot be used for enhancement. Id. § 49.09(e)(2)-(3); Howard
v. State, 137 S.W.3d 282, 287-88 (Tex. App.—Fort Worth 2004, pet. filed); Getts
v. State, No. 12-03-00047-CR, 2003 WL 22456104, at *1-2 (Tex. App.—Tyler
October 29, 2003, pet. granted) (mem. op.); Anderson v. State, 110 S.W.3d
98, 99 (Tex. App.—Dallas 2003, no pet.).
2.
Act of May 29, 1993, 73d Leg., R.S., ch. 900, § 1.01, 1993 Tex. Gen. Laws 3586,
3696.
3.
Act of May 27, 1983, 68th Leg., R.S., ch. 303, § 3, 1983 Tex. Gen. Laws 1568,
1574-77, repealed by Act of May 29, 1993, 73d Leg., R.S., ch. 900, §
1.15, 1993 Tex. Gen. Laws 3586, 3704.
4.
Both the current and former version of the ten-year rule allow the State to use
convictions ten years and older under certain conditions. This older
conviction could be “revived,” under the former rule, if a second DWI was
committed within ten years of the primary offense. The current law allows
use of a ten-year or older conviction if it is not separated by ten years from
another DWI conviction. Based on this, the State asserts that the overall
historical scheme demonstrates that the use of former article 6701l-1
convictions were not subject to time limitation. Yet, in cases where
revival did not apply, the former scheme provided a mechanism to prohibit use of
prior article 6701l-1 convictions based on their age, i.e., more than ten
years old. The State’s interpretation of the current DWI enhancement
scheme would provide no mechanism for exclusion of any article 6701l-1
prior conviction. Such an interpretation is a marked departure from the
historic scheme, and the State has not demonstrated the legislature’s intent
to do so. The existence of the revival doctrine, under the former scheme,
and the intervening conviction doctrine, under the current scheme, are, in fact,
not evidence of a legislative purpose to categorically exempt article 6701l-1
convictions from time limitation. Rather, these doctrines appear to be
consistent with the legislature’s desire to encourage rehabilitation by
dealing sternly with recent recidivism.
5.
Seratto’s offense was committed on December 2, 1994 and was enhanced by two
1993 convictions and a 1991 conviction. Id. Unlike the
present case, State use of his prior convictions was not barred by an
application of the ten-year rule.
Seratto’s
prior convictions were subject to the pre-2000 ten-year rule. Act of May
29, 1993, 73d Leg., R.S., ch. 900, § 1.10, 1993 Tex. Gen. Laws 3586, 3696, repealed
by Act of May 30, 1999, 76th Leg., R.S., ch. 1364, § 12 sec. 49.09(d), 1999
Tex. Gen. Laws 4606, 4610 (effective January 1, 2000). While the current
ten-year rule is forward-looking from a prior conviction, the pre-2000 rule was
backward-looking from the instant offense. So long as one prior conviction
occurred within the ten-year period antecedent to the current offense, the
second prior offense could be a remote prior conviction revived for enhancement
use. Howard, 137 S.W.3d at 287; Getts, 2003 WL 22456104, at
*2; Anderson, 110 S.W.3d at 99.
6.
Act of May 27, 1983, 68th Leg., R.S., ch. 303, § 3, art. 6701l-1(h),
1983 Tex. Gen. Laws 1568, 1576, repealed by Act of May 29, 1993, 73d
Leg., R.S., ch. 900, § 1.15, 1993 Tex. Gen. Laws 3586, 3704.