Oliva v. State

• Decision Date: 23 May 2018
• Docket Number: NO. PD–0398–17,PD–0398–17
• Citation: 548 S.W.3d 518
• Parties: Jose OLIVA, Appellant v. The STATE of Texas
• Court: Texas Court of Criminal Appeals

548 S.W.3d 518

Jose OLIVA, Appellant

v.The STATE of Texas

NO. PD–0398–17

Court of Criminal Appeals of Texas.

Delivered: May 23, 2018

Patricia McLean, Assistant District Attorney, Houston, TX, Stacey Soule, Austin, TX, for The State of Texas.

Theodore Lee Wood, Assistant Public Defender, Austin, TX, for Jose Oliva.

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

Under Penal Code § 49.09(b), the existence of two prior convictions for DWI (Driving While Intoxicated) elevates a third DWI offense from a Class B misdemeanor to a third degree felony.¹ We have held that the existence of these two prior convictions is a jurisdictional fact needed to establish felony status to make the DWI offense triable in district court and is an element of that offense.² Today we address the status of § 49.09(a), which provides that the existence of a single prior conviction elevates a second DWI offense from a Class B misdemeanor to a Class A misdemeanor. Is the existence of a single prior conviction an element of the offense or a punishment issue? The parties agree that the existence of a single prior conviction is an element of the offense. We disagree and hold that, unlike the existence of two prior convictions for felony DWI, which is an element of the offense of felony DWI, the existence of a single prior conviction for misdemeanor DWI is a punishment issue.

I. BACKGROUND

Appellant was charged by information with DWI. The information contained two paragraphs: the first alleged the commission of the current DWI and the second alleged a prior DWI conviction. The focus of the guilt stage of trial was solely on the first paragraph. The prior-conviction allegation was not read to the jury at the guilt stage, no evidence of the prior conviction was offered at the guilt stage, and there was no mention of a prior conviction in the guilt-stage jury instructions. Appellant was found guilty.

At the punishment stage, the State read the prior-conviction allegation to the jury and introduced evidence of a prior DWI conviction. The jury found the prior-conviction allegation to be true and assessed punishment at 180 days' confinement. The judgment labeled Appellant's current conviction as a "DWI 2ND" and the degree of offense as a "Class A Misdemeanor."

The court of appeals held that the existence of a prior conviction is an element of the offense of "Class A misdemeanor DWI."³ The court reasoned that a fact that elevates the degree of an offense is necessarily an element of the offense and that § 49.09 lacked the "shall be punished" language present in other statutes containing punishment enhancements.⁴ Because no evidence of a prior conviction was introduced at the guilt stage of trial, the court of appeals held that the evidence was legally insufficient to support the prior-conviction allegation.⁵ Consequently, the court of appeals reversed and remanded the case to the trial court with instructions to reform the judgment to reflect a conviction for Class B misdemeanor DWI and to conduct a new punishment hearing.⁶

II. ANALYSIS

A. The Parties' Agreed Position

On discretionary review, the parties agree that the existence of a prior conviction is an element of the offense. We, of course, are not bound by any agreement or concessions by the parties on an issue of law.⁷ The present case illustrates that an agreed outcome on a particular legal issue can sometimes be in both parties' self-interests. Here, Appellant wants the prior conviction to be decreed an element so that he can prevail on his sufficiency challenge. Such a decree, however, would seem to benefit the State in most cases because it would enable the State to introduce evidence of the prior conviction at the guilt stage of trial instead of having to wait until the punishment stage.⁸ The State seeks review here, not because it disagrees with the result in the court of appeals, but because it wishes to resolve this issue on a statewide basis, given the existence of conflicting opinions in the lower courts.⁹

B. The Statutes and Rules of Construction

Four statutory provisions appear to be directly relevant to the present case. The first is Penal Code § 49.04(a), which prescribes the base offense of DWI:

A person commits an offense if the person is intoxicated while operating a motor vehicle in a public place.¹⁰

The second provision is Penal Code § 49.04(b), which prescribes the punishment for the base offense:

Except as provided by Subsections (c) and (d) and Section 49.09, an offense under this section is a Class B misdemeanor, with a minimum term of confinement of 72 hours.¹¹

Third is Penal Code § 49.09(a), which sets out the effect of a prior conviction in raising the offense from a Class B misdemeanor to a Class A misdemeanor:

Except as provided by Subsection (b), an offense under Section 49.04, 49.05, 49.06, or 49.065 is a Class A misdemeanor, with a minimum term of confinement of 30 days, if it is shown on the trial of the offense that the person has previously been convicted one time of an offense relating to the operation of a motor vehicle while intoxicated ....¹²

The last directly relevant provision is found in the Code of Criminal Procedure, in Article 36.01, regarding when prior-conviction allegations may be read at trial:

When prior convictions are alleged for purposes of enhancement only and are not jurisdictional, that portion of the indictment or information reciting such convictions shall not be read until the hearing on punishment is held as provided in Article 37.07.¹³

In construing the meaning of, and interplay between, these statutes, we give effect to the plain meaning of the text, unless the text is ambiguous or the plain meaning leads to absurd results that the legislature could not have possibly intended.¹⁴ Statutory language is ambiguous if it "may be understood by reasonably well-informed persons in two or more different senses."¹⁵ If the statutory text is ambiguous or the plain meaning leads to absurd results, then we can consult extratextual factors, including (1) the object sought to be attained, (2) the circumstances under which the statute was enacted, (3) the legislative history, (4) common law or former statutory provisions, including laws on the same or similar subjects, (5) the consequences of a particular construction, (6) administrative construction of the statute, and (7) the title (caption), preamble, and emergency provision.¹⁶ Although relevant as an extratextual factor, "[t]he heading of a title, subtitle, chapter, subchapter, or section does not limit or expand the meaning of a statute."¹⁷ We also take into account any prior caselaw construing the statutes.¹⁸

C. Ambiguity

We are faced with two potential constructions of the statutes before us: (1) the existence of the prior conviction is an element of the offense, or (2) the existence of the prior conviction is a punishment issue. The initial question is whether we can choose one of these constructions as the only one that is consistent with the language of the relevant statutes. Can we say that the statutory language unambiguously leads to the conclusion that the existence of a prior conviction is an element? Conversely, can we say that the statutory language unambiguously leads to the conclusion that the existence of a prior conviction is a punishment issue? We ultimately conclude that the answer to these two questions is "no"—the statutory scheme is ambiguous.

1. Explicit Labeling

The statute before us does not explicitly say whether the existence of a prior conviction should be litigated at the guilt stage or at punishment. On a few occasions, the legislature has explicitly provided that an issue that increases the penalty for a crime be tried at the punishment stage.¹⁹ But such language does not appear to be the norm for statutes prescribing punishment issues in noncapital cases. That language is absent from Penal Code § 12.42, prescribing penalties for repeat offenders,²⁰ even though that statute would appear to be one of the most obvious examples of a codification of punishment issues. As we shall explain below, some statutes explicitly provide for punishment-stage litigation of facts that reduce the penalty attached to the offense.²¹ But these are also situations in which the legislature has placed the burden of proof on the defense,²² and the legislature may have felt the need to make it clear that the matters were punishment mitigation issues rather than affirmative defenses. There is even one instance in which the legislature has specified that a matter that increases the penalty will be litigated at the guilt stage of trial.²³ Since the legislature does not ordinarily specify whether a matter should be litigated at the guilt or punishment stage of trial, and did not do so in the present statute, we must look to other language to determine the legislature's intent.

2. "A person commits an offense if ...."

In Wilson v. State , this Court recognized the Penal Code's most obvious and common method of prescribing elements of an offense: prefacing incriminatory facts with the language, "A person commits an offense if ...."²⁴ We pointed out that the legislature has created both basic and aggravated offenses in this manner.²⁵ An example of an aggravated offense created in this manner is aggravated assault, which refers explicitly to the statutory crime of assault and to aggravating factors, with all of these prefaced by the phrase "a person commits an offense."²⁶ An example that involves a prior conviction would be the statute proscribing the possession of a firearm by a felon, which incorporates the prior felony conviction into the preface: "A person who has been convicted of a felony commits an offense if he possesses a firearm ...."²⁷

The DWI statutes do not follow this pattern. The phrase "a person commits an offense" appears in § 49.04, prescribing the base offense, but that phrase does not preface or incorporate the "prior conviction"...