Ex parte Patterson

• Decision Date: 21 October 1987
• Docket Number: No. 69813,69813
• Citation: 740 S.W.2d 766
• Parties: Ex parte Jerry McReed PATTERSON.
• Court: Texas Court of Criminal Appeals

Page 766

740 S.W.2d 766

Ex parte Jerry McReed PATTERSON.

No. 69813.

Court of Criminal Appeals of Texas,

En Banc.

Oct. 21, 1987.

Jerry McReed Patterson, pro se.

Robert Huttash, State's Atty. and Julie B. Pollock, Asst. State's Atty., Austin, for the State.

Before the court en banc.

OPINION

CLINTON, Judge.

Before us in this application for writ of habeas corpus filed pursuant to Article 11.07, V.A.C.C.P., is a question expressly left open in Polk v. State, 693 S.W.2d 391 (Tex.Cr.App.1985), viz: what notice, if any, must appear in an indictment to support submission of a special issue to the jury as to whether a deadly weapon was used or exhibited during the commission of the alleged offense.

In a two paragraph indictment applicant was charged with the murder of Junior Aaron Newton, "by stabbing him with a knife," in the first paragraph, V.T.C.A. Penal Code, § 19.02(a)(1), and, in paragraph two, with "commit[ting] an act clearly dangerous to human life, namely stabbing him with a knife," and thereby causing his death, § 19.02(a)(2), supra. The indictment did not expressly allege the knife was a deadly weapon; nor is a knife a deadly weapon per se. Polk, supra; Hawkins v. State, 605 S.W.2d 586 (Tex.Cr.App.1980). In its verdict the jury found applicant guilty of murder under the second paragraph.

Also in its verdict at the conclusion of the guilt/innocence stage, apparently in response to a special issue submitted in the court's charge, the jury expressly found "beyond a reasonable doubt that [applicant] did use a deadly weapon, a knife, that in the manner of its use was capable of causing death or serious bodily injury." V.T.C.A. Penal Code, § 1.07(11)(B). Obviously the jury's affirmative response to the special issue constituted an "affirmative finding" under Article 42.12, then § 3f(a)(2), see now § 3g(a)(2), and it is reflected as such in the judgment of conviction. Consequently applicant is subject to the provision of what is now Article 42.18, § 8(b), V.A.C.C.P., formerly Article 42.12, § 15(b), V.A.C.C.P., mandating that "he is not eligible for release on parole until his actual calendar time served, without consideration of good conduct time, ¹ equals one-third of the maximum sentence...." Applicant now asserts that both due process and due course of law require "notice" be given in the indictment that the State intends to obtain such an affirmative finding by way of a special issue submitted to the jury.

I.

In footnote four of his majority opinion in Polk, at 396, Judge Miller observed:

"... [t]he corpus of what we are dealing with is eligibility for parole, not what the penalty range or sentence will be. Though not raised in this case, the 'notice' requirement of the due process clause of both the 5th and 14th Amendments of the U.S. Constitution and the due course of law clause in Art. 1, § 19 of the Texas Constitution must be examined in that light when properly before us." ²

Following this cue, the State Prosecuting Attorney responds to the present application by asserting that good conduct time affects only a penitentiary inmate's eligibility for parole, see Article 6181-1, V.A.C.S., that under Texas law applicant is afforded no more than a unilateral expectation of parole, and that therefore no liberty interest under either constitution adheres in the accrual of good conduct time. Absent a liberty interest, maintains the State, no process or course of law whatsoever is due. The State relies principally upon Greenholtz v. Inmates of the Nebraska Penal and Correctional Complex, 442 U.S. 1, 99 S.Ct. 2100, 60 L.Ed.2d 668 (1979), and Williams v. Briscoe, 641 F.2d 274 (CA5 1981).

In our view, in order to fully evaluate the Fourteenth Amendment liberty interest asserted in this cause, it is also necessary to consider the applicability of Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972), Wolff v. McDonnell, 418 U.S. 539, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974), and Meachum v. Fano, 427 U.S. 215, 96 S.Ct. 2532, 49 L.Ed.2d 451 (1976), and other related Supreme Court decisions, to the present circumstances.

Morrissey v. Brewer, supra, presented what was treated as a two part question of whether, and if so, to what extent a parolee was entitled to due process prior to the revocation of his parole. There the Supreme Court opined:

"Whether any procedural protections are due depends on the extent to which an individual will be 'condemned to suffer grievous loss.' Joint Anti-Fascist Refugee Committee v. McGrath, 341 U.S. 123, 168, 95 L.Ed. 817, 852, 71 S.Ct. 624 (1954) (Frankfurter, J., concurring), quoted in Goldberg v. Kelly, 397 U.S. 254, 263, 25 L.Ed.2d 287, 296, 90 S.Ct. 1011 (1970). The question is not merely the 'weight' of the individual's interest, but whether the nature of the interest is one within the contemplation of the 'liberty or property' language of the Fourteenth Amendment. Fuentes v. Shevin, 407 U.S. 67, 32 L.Ed.2d 556, 92 S.Ct. 1983 (1972). Once it is determined that due process applies, the question remains what process is due."

408 U.S. 481, 92 S.Ct. 2600, 33 L.Ed.2d 494. After analyzing "the nature of a parolee's interest in continued liberty," the Court concluded:

"... that the liberty of a parolee, although indeterminate, includes many of the core values of unqualified liberty and its termination inflicts a 'grievous loss' on the parolee and often on others."

408 U.S. at 482, 92 S.Ct. at 2601, 33 L.Ed.2d at 495. Having thus identified a sufficiently "grievous loss" as to invoke "some orderly process," id., the Court set about defining precisely what process was due.

The Supreme Court's opinion in Wolff v. McDonnel, supra, predated Greenholtz by five years. According to the Nebraska statute applicable when Wolff was decided, good conduct time was to be deducted from an inmate's minimum term, for purposes of determining the date of his eligibility for parole, or from his maximum term, for purposes of determining date of mandatory release. ³ 418 U.S. at 546 n. 6, 94 S.Ct. at 2970 n. 6, 41 L.Ed.2d at 945 n. 6. "In cases of flagrant or serious misconduct," such good time was subject to forfeiture by prison authorities. 418 U.S. at 545 n. 5, 94 S.Ct. at 2969 n. 5, 41 L.Ed.2d at 945 n. 5. Such forfeitures were "to be reported to and considered by parole authorities." 418 U.S. at 546 n. 6, 94 S.Ct. at 2970 n. 6, 41 L.Ed.2d at 946 n. 6. Beginning with the premise that prison inmates retain due process rights, albeit "subject to restrictions imposed by the nature of the regime to which they have been lawfully committed[,]" 418 U.S. at 556, 94 S.Ct. at 2975, 94 L.Ed.2d at 951, the Supreme Court in Wolff concluded "... the State having created the right to good time and itself recognizing that its deprivation is a sanction authorized for major misconduct, the prisoner's interest has real substance and is sufficiently embraced within Fourteenth Amendment 'liberty' to entitle him to those minimum procedures appropriate under the circumstances and required by the Due Process Clause to insure that the state-created right is not arbitrarily abrogated."

418 U.S. at 557, 94 S.Ct. at 2975, 41 L.Ed.2d at 951. Cf. Superintendent, Massachusetts Correctional Institution, Walpole v. Hill, 472 U.S. 445, at 454, 105 S.Ct. 2768, at 2774, 86 L.Ed.2d 356, at 364 (1985) (Decided after Meachum and Greenholtz, this case holds that "[w]here a prisoner has a liberty interest in good time credits, the loss of such credits threatens his prospective freedom from confinement by extending the length of imprisonment. Thus the inmate has a strong interest in assuring that the loss of good time credits is not imposed arbitrarily.")

Meachum v. Fano, supra, addressed the question of whether due process rights were implicated in the transfer of an inmate, presumably as a disciplinary measure, to a less desirable facility than that to which he had been originally assigned. The Supreme Court found it unnecessary to inquire beyond the first stage of the Morrissey analysis, finding that "Massachusetts law conferred no right on a prisoner to remain in the prison to which he was initially assigned, defeasible only upon proof of specific acts of misconduct." 427 U.S. at 226, 96 S.Ct. at 2539, 49 L.Ed.2d at 460. In view of this absence of a state conferred right, the Court concluded that:

"[w]hatever expectation the prisoner may have in remaining at a particular prison so long as he behaves himself, it is too ephemeral and insubstantial to trigger procedural due process protections as long as prison officials have discretion to transfer him for whatever reason or for no reason at all."

427 U.S. at 228, 96 S.Ct. at 2540, 49 L.Ed.2d at 461. Thus what has come to be known as the Court's "entitlement doctrine" was applied for the first time to delineate the liberty interest of prisoners under the Fourteenth Amendment. See e.g., Note, Two Views of a Prisoner's Right to Due Process: Meachum v. Fano, 12 Harv.C.R.-C.L.L.Rev. 405 (1977). According to this doctrine, a lawfully convicted prison inmate's liberty interest is essentially limited to rights specifically conferred by the State. Subsequent cases have honed and refined the doctrine.

The next application of the entitlement doctrine to inmate liberty interests under the Fourteenth Amendment occurred in Greenholtz v. Inmates of the Nebraska Penal and Correctional Complex, supra. In considering the question whether Nebraska inmates had a liberty interest in obtaining parole, the Supreme Court there rejected the assertion that a liberty interest could arise by simple virtue of the fact that the State, in establishing a parole system, had created the possibility of parole. First the Court noted what it found to be "a crucial distinction between being deprived of a liberty one has," as is the case once parole has been granted, see Morrissey v. Brewer, supra, "and being denied a conditional liberty that one desires." 442 U.S. at 9, 99 S.Ct. at 2105, 60...