Ex parte Parrott

Decision Date27 March 2013
Docket NumberNo. AP–76,647.,AP–76,647.
Citation396 S.W.3d 531
PartiesEx Parte Jimmie Mark PARROTT, Jr., Applicant.
CourtTexas Court of Criminal Appeals

OPINION TEXT STARTS HERE

Adam Brown, Houston, TX, for Appellant.

Andrew J. Smith, Assistant District Attorney, Houston, Lisa C. McMinn, State's Attorney, TX, for State.

OPINION

ALCALA, J., delivered the opinion of the Court in which KELLER, P.J., and PRICE, WOMACK, JOHNSON, and COCHRAN, JJ., joined.

In this case, we decide that an applicant must prove harm to obtain relief in a writ of habeas corpus premised on an illegal-sentence claim. Here, Jimmie Mark Parrott, applicant, raises an illegal-sentence claim based on the State's improper use of a prior conviction for enhancement purposes. We deny relief because the habeas record establishes that applicant was previously convicted of other offenses that support the punishment range within which he was admonished and sentenced; therefore, he has failed to demonstrate harm.

I. Background

At his plea hearing, applicant was admonished that the single enhancement allegation in the indictment increased the punishment range of his third-degree-felony offense—2 to 10 years' imprisonment—to that of a second-degree felony—2 to 20 years' imprisonment. SeeTex. Penal Code §§ 12.33(a), 12.34(a), 31.03(e)(5). He pleaded guilty to the offense and true to the enhancement allegation. In accordance with his plea-bargain agreement with the State, the trial court found him guilty and the enhancement true and sentenced him to 15 years' imprisonment.

After his appeal was dismissed,1 applicant filed this application for a writ of habeas corpus. Among his complaints, he challenges the legality of his sentence on the basis that the enhancement paragraph alleged a prior conviction for a state-jail felony, which the State could not properly use to enhance the punishment range of his third-degree-felony offense. See former Tex. Penal Code § 12.42(a)(3) (West 2009) (permitting punishment of third-degree felony as second-degree felony if defendant has once before been convicted of a felony”); see also Campbell v. State, 49 S.W.3d 874, 878 (Tex.Crim.App.2001) (explaining that state-jail felony could not enhance first-, second-, or third-degree felony because, “as used in subsection 12.42(a), the terms ‘felony’ and ‘state jail felony’ are mutually exclusive”). 2 He contends that his 15–year sentence, therefore, exceeds the 10–year maximum authorized for third-degree-felony convictions. SeeTex. Penal Code § 12.34(a).

In response, the State does not dispute that it improperly used the prior state-jail felony to enhance applicant's punishment.3 It only challenges his failure to prove harm. The State's habeas evidence establishes that applicant had been previously convicted of three felonies, each of which could have properly been used to enhance the punishment range of his third-degree-felony offense to at least that of a second-degree felony. 4See former Tex. Penal Code § 12.42(a)(3), (d) (West 2009). Applicant does not contest that evidence.

The trial court entered findings of fact and conclusions of law recommending that this Court deny relief. The trial court concluded that applicant's sentence was authorized by law because his “sentence is within the range of punishment as he has previous convictions that could take the place of the invalid enhancement.” 5

II. Applicant Has Not Established Harm from the Erroneous Enhancement Allegation
A. Law Applicable to Illegal–Sentence Claims

A claim of an illegal sentence is cognizable in a writ of habeas corpus. Ex parte Rich, 194 S.W.3d 508, 511 (Tex.Crim.App.2006). An illegal sentence is one that is not authorized by law; therefore, a sentence that is outside the range of punishment authorized by law is considered illegal. Mizell v. State, 119 S.W.3d 804, 806 (Tex.Crim.App.2003); Ex parte Beck, 922 S.W.2d 181, 182 (Tex.Crim.App.1996).

The parties dispute whether a habeas applicant must demonstrate harm in an illegal-sentence case. The general rule is clear, however, that an applicant must show harm to obtain habeas relief: [A] post-conviction habeas corpus application must allege facts which show both a cognizable irregularity and harm.” Ex parte Tovar, 901 S.W.2d 484, 486 (Tex.Crim.App.1995). An applicant demonstrates harm with proof “by a preponderance of the evidence that the error contributed to his conviction or punishment.” Ex parte Williams, 65 S.W.3d 656, 658 (Tex.Crim.App.2001).

Proof of harm may be developed through evidence beyond the appellate record. The introduction of new evidence is a key distinguishing feature of habeas corpus. See Rouse v. State, 300 S.W.3d 754, 762 n. 17 (Tex.Crim.App.2009). It affords the parties the opportunity to support a claim ‘by information from sources broader than the appellate record.’ Id. (quoting Cooper v. State, 45 S.W.3d 77, 82 (Tex.Crim.App.2001)).6 It also affords the habeas judge, and ultimately this Court, an opportunity to evaluate that evidence. While this post-conviction evidentiary mechanism frequently benefits defendants by enabling them to introduce new evidence favorable to them, it may also subject them to the introduction of unfavorable evidence. Compare Ex parte Henderson, 384 S.W.3d 833, 834 (Tex.Crim.App.2012) (Henderson's habeas evidence cast sufficient doubt on reliability of conviction so as to warrant relief), with Ex parte Nycum, 614 S.W.2d 140, 141 (Tex.Crim.App.1981) (in response to Nycum's habeas claim that trial court abused its discretion in denying bail, State introduced evidence of his 16 prior felony convictions, and relief was denied). Here, the State introduced evidence during the habeas proceedings demonstrating that applicant, a three-time felon, was not harmed by the error, evidence that applicant does not contest and that the habeas court has found reliable.

Citing Ex parte Rich, applicant argues that, in an illegal-sentence case, a habeas applicant need not show harm. 194 S.W.3d at 510–12. In Rich, this Court granted habeas relief on Rich's ineffective-assistance claim based on his counsel's failure to investigate the eligibility of his prior convictions for enhancement purposes. Id. at 510–11. Rich's sentence was illegal because the prior conviction that the State used to enhance his punishment to the habitual-offender range was a misdemeanor, which did not support that type of enhancement. Id. at 511. Vacating his conviction, the Court explained that, “when a plea-bargain agreement calls for a sentence much greater than that authorized by law, we must allow the defendant to withdraw his plea because there is no way of knowing whether the State would have offered a plea bargain within the proper range of punishment that he deemed acceptable, or whether he would have decided to proceed to trial.” Id. at 514.

Rich does not stand for the proposition that harm analysis is unnecessary in an illegal-sentence case, but rather supports the contrary position. Without labeling it a harm analysis, the Court specifically considered the absence of other convictions that could have been used to enhance Rich 's sentence. Id. at 510. It stated,

[T]his Court entered an order requiring the trial court to determine whether there were any other prior felony convictions that could have been substituted for the misdemeanor that was improperly used for enhancement. The trial court filed Supplemental Findings of Fact and Conclusions of Law, finding that neither of Applicant's other prior felony convictions could have been properly substituted for the prior felony conviction. The trial court concluded that Applicant's third-degree felony could have been enhanced to a second-degree felony, at most.

Id. at 510–11. Based on the absence of any prior convictions that would have supportedRich's enhanced sentence, the Court observed, “There is a great disparity between the sentence of 25 years for which Applicant pleaded guilty and the possible sentences within the proper range of punishment which he could have received, either by pleading guilty or going to trial.” Id. at 514. This analysis is, functionally, a harm analysis: The Court examined the habeas record to determine whether Rich had other prior convictions that the State could have properly used to enhance his sentence or, stated differently, whether Rich was actually harmed by the erroneous enhancement. See id.7

We conclude that Rich stands for the propositions that, in general,

(1) an applicant is harmed by an illegal sentence when the appellate and habeas records show that he has no other conviction that could support the punishment range within which he was sentenced; and

(2) an applicant is not harmed by an illegal sentence when the appellate and habeas records show that there was another conviction that could properly support the punishment range within which he was sentenced.

See id. at 510–14. Rich, therefore, does not support applicant's position in these proceedings.

B. Applicant Fails to Establish That He Was Harmed
1. Applicant's Actual Criminal History Supports His Sentence

The habeas record reveals that applicant's sentence was within a punishment range supported by his actual criminal history, admonishments, and plea bargain. He was properly admonished that a third-degree felony becomes punished as a second-degree felony when a defendant has been previously convicted of a felony that is third-degree or higher. See former Tex. Penal Code 12.42(a)(3) (West 2009); Campbell, 49 S.W.3d at 878. He pled true to a punishment-enhancement paragraph that the parties agreed would enhance his punishment to a second-degree felony. And he entered into a plea bargain with an agreed sentence of 15 years in prison, which was a term within the punishment range of which he was admonished. The State has introduced evidence in the habeas record of alternative, prior felony convictions, which the habeas judge, who was also the trial judge, has found could properly have...

To continue reading

Request your trial
116 cases
  • Ex parte Marascio
    • United States
    • Texas Court of Criminal Appeals
    • October 7, 2015
    ... ... Crim. App. 2012); Drake, 883 S.W.2d at 215; Ex parte Emmons, 660 S.W.2d 106, 110 (Tex. Crim. App. 1983). [T]he writ of habeas corpus is an extraordinary remedy, any grant of which must be underscored by elements of fairness and equity. Perez, 398 S.W.3d at 216; see also Ex parte Parrott, 396 S.W.3d 531, 534 n. 6 (Tex. Crim. App. 2013)(observing that habeas corpus relief is an extraordinary remedy premised on equity and not on error correction as is the focus of direct appeal). By applying the same strict procedural-default rules that apply to claims raised on direct appeal in ... ...
  • Schmutz v. State
    • United States
    • Texas Court of Criminal Appeals
    • January 29, 2014
    ... ... No such statute exists for criminal cases. 1 This may be becoming a habit of this court, as it can also be seen in Ex Parte Parrott, 396 S.W.3d 531 (Tex.Crim.App.2013). There, new law was created when it was held that a habeas applicant must prove harm in order to obtain ... ...
  • Ex parte Denton
    • United States
    • Texas Court of Criminal Appeals
    • May 22, 2013
    ... ... Given that response, I conclude that the State does not believe that applicant's tardiness in raising a double-jeopardy claim has prejudiced its interests. I respectfully concur in the Court's judgment. MEYERS, J., filed a dissenting opinion. On January 9, 2013 in Ex Parte Parrott, 1 the majority inexplicably decided that an Applicant must prove harm to obtain relief in a writ of habeas corpus premised on an illegal-sentence claim. However, less than three months later, this Court has already decided to abandon this requirement. 2 It does not surprise me that this Court's ... ...
  • Ex parte Weinstein
    • United States
    • Texas Court of Criminal Appeals
    • March 10, 2014
    ... ...          19. Ex parte Fierro, 934 S.W.2d 370, 374–75 (Tex.Crim.App.1996).          20. Id.; see Ex parte Parrott, 396 S.W.3d 531, 534 (Tex.Crim.App.2013) (“The general rule is ... that an applicant must show harm to obtain habeas relief: ‘[A] post-conviction habeas corpus application must allege facts which show both a cognizable irregularity and harm.’ An applicant demonstrates harm with proof ‘by a ... ...
  • Request a trial to view additional results
11 books & journal articles
  • Post-Trial Issues
    • United States
    • James Publishing Practical Law Books Archive Texas Criminal Lawyer's Handbook. Volume 2 - 2020 Contents
    • August 16, 2020
    ...habeas relief when alleging an illegal sentence, an applicant must show that he was harmed by the sentence imposed. Ex parte Parrot, 396 S.W.3d 531, 534-35 (Tex. Crim. App. 2013). This is true even where the alleged invalid prior is jurisdictional. Rodgers, 598 S.W.3d at 267 (where the cour......
  • Table of Cases
    • United States
    • James Publishing Practical Law Books Archive Texas Criminal Lawyer's Handbook. Volume 2 - 2015 Contents
    • August 17, 2015
    ...573 S.W.2d 525 (Tex.Crim.App. 1978), §§22:82, 22:83 Ex parte Parham, 611 S.W.2d 103 (Tex. Crim. App. 1981), §4:62 Ex parte Parrot, 396 S.W.3d 531, 534-35 (Tex. Crim. App. 2013), §21:74 Ex parte Patterson, 740 S.W.2d 766 (Tex. Crim. App. 1987), §15:74 Ex parte Pemberton, 577 S.W.2d 266 (Tex.......
  • Post-Trial Issues
    • United States
    • James Publishing Practical Law Books Archive Texas Criminal Lawyer's Handbook. Volume 2 - 2016 Contents
    • August 17, 2016
    ...habeas relief when alleging an illegal sentence, an applicant must show that he was harmed by the sentence imposed. Ex parte Parrot, 396 S.W.3d 531, 534-35 (Tex. Crim. App. 2013). A post-conviction application for a writ of habeas corpus is available when a felony conviction was rendered on......
  • Post-Trial Issues
    • United States
    • James Publishing Practical Law Books Archive Texas Criminal Lawyer's Handbook. Volume 2 - 2018 Contents
    • August 17, 2018
    ...habeas relief when alleging an illegal sentence, an applicant must show that he was harmed by the sentence imposed. Ex parte Parrot, 396 S.W.3d 531, 534-35 (Tex. Crim. App. 2013). A post-conviction application for a writ of habeas corpus is available when a felony conviction was 21-25 Pඈඌඍ-......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT