Ex parte Bates
| Decision Date | 20 October 1982 |
| Docket Number | No. 68275,68275 |
| Parties | Ex parte Stanley Homer BATES. |
| Court | Texas Court of Criminal Appeals |
This is a post-conviction application for writ of habeas corpus filed pursuant to the provisions of Article 11.07, V.A.C.C.P.
The record reflects that applicant was charged by an information dated January 16, 1976, with the misdemeanor offense of unlawfully carrying a weapon. The offense was alleged to have occurred on January 14 1976. On February 3, 1976, applicant was arrested on a capias issued upon this Court's mandate affirming his prior driving while intoxicated felony conviction. On June 30, 1976, the unlawfully carrying a weapon charge against applicant was dismissed. On July 19, 1976, the applicant received jail credit on his driving while intoxicated conviction. See Ex parte Bates, 538 S.W.2d 790 (Tex.Cr.App.1976). On January 24, 1977, applicant was charged by indictment with unlawfully carrying a prohibited weapon by a felon, arising from the January 14, 1976, incident. The indictment alleged two prior convictions for enhancement purposes. On December 7, 1977, applicant pled guilty to the offense of unlawfully carrying a weapon by a felon after the enhancement allegations had been dismissed. Upon his plea of guilty, applicant received a ten-year sentence. That conviction was affirmed on appeal to this Court. See Bates v. State, 571 S.W.2d 929 (Tex.Cr.App.1978).
On October 21, 1981, this Court abated this cause and ordered the trial court to hold an evidentiary hearing with regard to applicant's contentions. 624 S.W.2d 588. That hearing has now been held and the record received by this Court. The cause is reinstated. Following the hearing, the court entered findings of fact and conclusions of law and recommended that the relief sought be denied.
Applicant now urges that the prosecution of the weapon's charge as a felony is an example of prosecutorial vindictiveness and therefore a denial of due process. He maintains that he was indicted for the offense of unlawful possession of a firearm by a felon as a result of his success in receiving jail credit on his driving while intoxicated conviction. Ex parte Bates, supra. In support of his contention, applicant relies upon Blackledge v. Perry, 417 U.S. 21, 94 S.Ct. 2098, 40 L.Ed.2d 628 (1974).
At the evidentiary hearing, Officer Sandy Soule, of the Dallas Police Department, testified that he arrested applicant on January 14, 1976, for possession of a firearm. When Soule filed his arrest report, he listed the offense as a felony, unlawful possession of a firearm by a felon. See V.T.C.A., Penal Code, Section 46.05. Soule related that he knew of applicant's prior conviction for burglary. Upon the basis of such knowledge, the offense was filed as a felony.
After filling out the arrest report, Soule filed it with the General Assignments Division of the Dallas Police Department. The officer testified that he heard nothing else of the matter until he saw applicant "on the streets" in September of 1976. Soule stated that he was unable to understand why applicant was "back on the streets" so soon after having a felony charge filed against him.
Soule learned that the offense which he had filed against applicant, unlawful possession of a firearm by a felon, had been changed by the General Assignments Division to the misdemeanor offense of unlawfully carrying a weapon. See V.T.C.A., Penal Code, Section 46.02. Soule related that he learned that the unlawfully carrying a weapon's charge had been dismissed while applicant was in the Texas Department of Corrections serving his sentence for driving while intoxicated, second offense.
The officer testified that he went to the Dallas County District Attorney's office to find out why the felony weapons charge had been reduced to a misdemeanor. Soule testified that he was under the impression that some type of "deal" had been made which resulted in the charge being reduced to a misdemeanor and then dismissed. The officer discovered that no such "deal" had been made and he was advised that the weapon's charge could be refiled as a felony. Upon learning that a refiling was possible, Soule reinitiated charges against applicant for the felony offense of unlawful possession of a firearm by a felon. Finally, Soule testified that he never discussed or considered the possibility of refiling charges against applicant for the felony offense simply because applicant had obtained jail time credit on his driving while intoxicated conviction.
Officer Nate Trammel, of the Dallas Police Department, testified that he and Soule were partners. Trammel participated with Soule in the refiling of felony charges against applicant arising from the weapon's offense on January 14, 1976. Trammel testified that his knowledge of applicant's success on his application for writ of habeas corpus concerning jail time credit on his driving while intoxicated conviction had no effect upon his decision to refile felony charges against applicant. He testified that he simply pursued the matter because he felt that the incident gave rise to a "valid charge" of unlawful possession of a firearm by a felon.
Officer Bryan Galindo, of the Dallas Police Department, testified that, in January of 1976, he was with the General Assignments Division. Galindo stated that he was the individual who had changed Soule's arrest report concerning the nature of the offense for which applicant was arrested on January 14, 1976. Galindo related that he had changed the offense to a misdemeanor because, in reviewing applicant's "rap sheet" for the City of Dallas, he saw no prior felony convictions. Without such a felony conviction, Galindo stated that the charge should have been filed as a misdemeanor, unlawfully carrying a weapon. Galindo related that applicant's 1966 conviction for burglary did not appear on the "rap sheet" for the City of Dallas.
Ron Poole, an attorney, testified that he was the assistant district attorney for Dallas County who dismissed the unlawfully carrying a weapon's charge against applicant. Such dismissal took place on June 30, 1976. Poole related that the charge was dismissed as a result of applicant's incarceration in the Texas Department of Corrections on an unrelated charge. Poole testified that, under such circumstances, the county had no interest in going to the expense of transporting applicant back to Dallas County to stand trial on a misdemeanor charge.
Douglas Mulder, an attorney, testified that he was the assistant district attorney who advised Officers Soule and Trammel that the felony offense of unlawful possession of a firearm by a felon could be refiled against applicant. Mulder related that, in giving such advice to the...
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