Ex parte Pue

• Decision Date: 28 February 2018
• Docket Number: NO. WR–85,447–01,WR–85,447–01
• Citation: 552 S.W.3d 226
• Parties: EX PARTE Jeremy Wade PUE, Applicant
• Court: Texas Court of Criminal Appeals

552 S.W.3d 226

EX PARTE Jeremy Wade PUE, Applicant

NO. WR–85,447–01

Court of Criminal Appeals of Texas.

DELIVERED: February 28, 2018

Rehearing Denied May 23, 2018

John C. Moncure, P. O. Box 4005, Huntsville, TX 77342, for Applicant.

Joshua D. Presley, Assistant District Attorney, 150 N. Seguin Avenue, Ste. # 307, New Braunfels, Texas 78130, Stacey Soule, State’s Attorney, Austin, for the State.

OPINION

Richardson, J., delivered the opinion of the Court in which Hervey, Alcala, Newell, Keel, and Walker, JJ., joined.

In 2008, Applicant Jeremy Wade Pue was convicted by a jury of the third degree felony offense of evading arrest or detention with a vehicle.¹ He was sentenced as a habitual offender because his sentence was enhanced by two California felony convictions—one from 2002 and the other from 2007. The trial court sentenced Applicant to thirty years in prison. His conviction was affirmed on direct appeal.² Applicant now claims in this application for writ of habeas corpus³ that his thirty-year sentence is illegal because it was improperly enhanced by the 2007 California conviction.⁴ Applicant had only two prior felony convictions, and both of them occurred in California. There were no other felony convictions the State could have used to enhance Applicant's sentence.⁵ We agree that Applicant's sentence was improperly enhanced by the 2007 California conviction. We grant relief.

I.

Overview

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.⁶ A claim that a sentence is illegal because it exceeds the statutory maximum is cognizable in a writ of habeas corpus and may be raised at any time.⁷ Thus, Applicant's claim that his sentence was illegally enhanced is cognizable even though he failed to raise that issue on direct appeal.⁸

In 2008, when Applicant was sentenced in this case, the State sought to enhance his punishment with two prior felony convictions. One was a 2007 California felony conviction for possessing a "useable quantity" of a controlled substance under California Health and Safety Code § 11377(a). Applicant pled guilty to that 2007 possession charge before the Superior Court of Orange County, California, on May 21, 2007. Imposition of sentence was suspended, and Applicant was placed on probation for three years.⁹ Applicant was still on probation for that 2007 California felony conviction when he was sentenced in this case in 2008.

We filed and set this writ application to decide whether Applicant's sentence in this case was improperly enhanced. The first issue we specifically agreed to address was

whether Applicant's prior 2007 probated conviction from California, which was alleged in one of the habitual enhancement paragraphs, could have been used as a punishment enhancement in California and was therefore available for use as a punishment enhancement in this Texas prosecution.

We ordered briefing on this issue and have reviewed the parties' briefs and considered their arguments. By order dated November 1, 2017, we noted that further briefing would be useful and invited both parties to provide this Court with legal and policy arguments as to whether the "finality" of an out-of-state conviction, for purposes of punishment enhancement in a Texas prosecution, should be determined in accordance with the law of the foreign jurisdiction or in accordance with Texas law.

We now hold that, whether the 2007 California conviction could have been used as a punishment enhancement in California does not control whether such prior conviction was available for use as a punishment enhancement in this Texas prosecution . More importantly, we hold that, whether a prior conviction—in-state or out-of-state—is "final" under Texas Penal Code § 12.42 is to be determined in accordance with Texas law. This means that the law of another state does not control whether a defendant's conviction is properly enhanced under Texas law.¹⁰

II.

Punishment Enhancement Involving Out-of-State Prior Convictions

Punishment enhancement for habitual offenders falls generally under Texas Penal Code § 12.42(d), which provides as follows:

Except as provided by Subsection (c)(2) or (c)(4), if it is shown on the trial of a felony offense other than a state jail felony punishable under Section 12.35(a) 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 the defendant shall be punished by imprisonment in the Texas Department of Criminal Justice for life, or for any term of not more than 99 years or less than 25 years. A previous conviction for a state jail felony punishable under Section 12.35(a) may not be used for enhancement purposes under this section.¹¹

Section 12.42(c)(2) and 12.42(c)(4) address enhancement when the charged offense and previous felony offenses were sexual assault or human trafficking related offenses. Neither section applies in this case. Moreover, since this offense was a third degree felony under section 12.35(c)(1),¹² section 12.35(a), which addresses punishment for state jail felonies, does not apply here.

It is well established that under Texas law only convictions that are "final" can be used for enhancement purposes.¹³ "[I]t is equally well established that a conviction is not final for enhancement purposes where the imposition of sentence has been suspended and probation granted."¹⁴ "A successfully served probation is not available for enhancement purposes."¹⁵ The imposition of a sentence is required to establish the finality of a conviction.¹⁶

However, a probated sentence can turn into a final conviction if probation is revoked.¹⁷ It is the State's burden to prove finality for purposes of enhancement under Art. 12.42(d).¹⁸

An out-of-state prior final felony conviction can be used to enhance a sentence imposed in Texas. Under the Full Faith and Credit Clause of the United States Constitution, the various states must recognize "public acts, records, and judicial proceedings of every other State."¹⁹ The Full Faith and Credit Clause ensures that judicial decisions rendered by a court in one state are recognized and honored in every other state. However, the out-of-state conviction must be a "final" conviction. In Spiers v. State , this Court reversed the appellant's conviction because there was no proof that his previous conviction for burglary in Mississippi, which resulted in a suspended sentence, was a final conviction:

The record reveals that in the burglary conviction appellant's sentence was suspended. There is no showing that this suspended sentence was ever revoked. Accordingly, there is no proof that the burglary conviction was a final conviction. Absent such proof such conviction cannot be used for enhancement.²⁰

The question, however, is whether the finality of the out-of-state conviction is to be determined under the other state's law or Texas law. There are several Texas appellate court opinions (many of them unpublished) that have held that a conviction from another state is considered "final" under Texas law for enhancement purposes if it is considered "final" under the other state's law.²¹ However, only two opinions from this Court have been cited in appellate court opinions as authority to support such rule of law— Ex parte Blume²² and Diremiggio v. State .²³ As we explain below, neither case persuades us to follow such rule.

In Ex parte Blume , the defendant brought an action for post conviction writ of habeas corpus, asserting that his federal felony conviction was improperly used for enhancement because the prior federal felony conviction would not have been a felony under our state penal code. The "sole question presented" in Blume was whether a federal felony conviction for an offense which does not constitute a felony under the Texas Penal Code could still be used to enhance punishment under section 12.42.²⁴ We held in Blume that it could, since the federal felony offense for which the applicant was previously convicted carried "confinement in the penitentiary ... as a possible punishment" in accordance with Texas state law— Penal Code § 12.41(1).²⁵ Therefore, under Blume , section 12.41(1) of the Texas Penal Code rendered the prior federal conviction a "felony of the third degree" under Texas law for the purposes of the enhancement subchapter . Ex parte Blume involved a federal conviction, not an out-of-state conviction, and the issue still was whether a conviction was properly enhanced under Texas law . Moreover, the finality issue currently before us was not at issue in Blume . We therefore find Blume distinguishable and not controlling of the issue before us today.

The State maintains that under the rule of Diremiggio v. State , an out-of-state conviction is final in Texas if it is final under the law of the convicting state. We recognize that Diremiggio has been cited to support that position.²⁶ However, we do not agree that such is the holding of that case. Nor do we interpret Diremiggio v. State as standing for the proposition that if a conviction from another state is available for enhancement purposes in that state, then it is available for enhancement purposes under Texas law.

In Diremiggio , the appellant had a prior conviction in Virginia for uttering a forged check with intent to defraud, and he was sentenced to the penitentiary for five years, with four years suspended on condition of good behavior for ten years. The State argued that only four out of the five years was suspended, so the appellant necessarily received a final conviction as to the one year actually served. This Court held that such "partial" imposition/suspension of a sentence was insufficient to make a prima facie showing that the prior conviction was a "final" conviction. This Court did not specifically hold that we must interpret whether...