Parrott v. Davis

Decision Date30 May 2017
Docket NumberCIVIL ACTION NO. H-13-1052
PartiesJIMMIE MARK PARROTT JR., TDCJ #1621310, Petitioner, v. LORIE DAVIS, Respondent.
CourtU.S. District Court — Southern District of Texas
MEMORANDUM AND ORDER

Petitioner Jimmie Mark Parrott, Jr. was confined by Texas Department of Criminal Justice-Correctional Institutions Division ("TDCJ") at the time he filed this habeas corpus petition. Petitioner seeks relief from a 15-year sentence that he received as the result of his conviction for a third degree felony, which was enhanced with one prior conviction. After carefully reviewing the petition, court records, state court opinions, motions, supplemental briefing by Petitioner and Respondent,1 and the applicable law, the Court concludes as follows.

I. FACTUAL AND PROCEDURAL BACKGROUND

On October 5, 2009, a Harris County grand jury returned an indictment charging Petitioner with theft of over $20,000 and less than $100,000, which is a third-degree felonyoffense under Texas Penal Code § 31.03(a).2 The indictment also alleged two prior felony convictions for sentencing enhancement purposes.3 The first enhancement was a 1997 conviction for unauthorized use of a motor vehicle ("UUMV") in Cause No. 731089, and the second was a 1999 conviction for theft in Cause No. 808126.4

Under Texas law, a third degree felony carries a punishment range of 2 to 10 years' imprisonment and a fine not to exceed $10,000. See TEX. PENAL CODE § 12.34 (West 2009). A prior felony conviction may be used to enhance the punishment for a third degree felony to a second degree felony, which carries a sentence range of 2 to 20 years' imprisonment. See former TEX. PENAL CODE §§ 12.42(a)(3), 12.33(a) (West 2009). Thus, if an individual is charged with a third degree felony with one felony enhancement, the punishment range increases from 2 to10 years (third degree felony punishment range) to 2 to 20 years (second degree felony range). Further, if the State establishes that the defendant has two prior felony convictions, the sentence may be enhanced to a range of 25 years to life imprisonment. See TEX. PENAL CODE §§ 12.42(d) (West 2009). A prior state jail felony conviction, however, may not be used to enhance punishment for a third degree felony. See Campbell v. State, 49 S.W.3d 874, 878 (Tex. Crim. App. 2001) (en banc).

Petitioner's case was assigned to the 230th District Court of Harris County, Texas, the Honorable Belinda Hill, presiding.5 The state trial court appointed Attorney Beverly Melontreeas Petitioner's defense counsel.6

On January 21, 2010, Petitioner pled guilty to the theft charge set forth in the indictment based on the State's offer to recommend a sentence of 15 years' imprisonment.7 In making that recommendation, the State abandoned the first enhancement paragraph in the indictment regarding Cause No. 731089, striking through it and noting that "the State abandons this enhancement."8 It is undisputed that the conviction referenced in the first enhancement paragraph (UUMV) was a state jail felony. The State also struck through the second enhancement, but then noted that "this enhancement is valid."9 The written admonishments confirm that Petitioner pled guilty to a third degree felony with one enhancement.10 Petitioner placed his initials next to the all-caps "THIRD DEGREE FELONY WITH ONE ENHANCEMENT" admonishment, which stated: "if a third degree felony is enhanced with one prior felony conviction a term of not more than 20 years or less than 2 years in the [I]nstitutional Division of the Texas Department of Criminal Justice, and in addition, a fine not to exceed $10,000.00 may be assessed."11

On January 22, 2010, the trial court sentenced Petitioner to 15 years' imprisonment based on the plea of guilty and the signed admonishments.12 The trial court certified that Petitioner hadno right to appeal because it was a plea-bargain case.13

On February 10, 2010, Petitioner filed a notice of appeal.14 On April 1, 2010, the state intermediate appellate court dismissed that appeal based on the trial court's certification that Petitioner had no right to appeal his conviction in a plea-bargain case. See Parrott v. State of Texas, No. 14-10-00160-CR, at *1 (Tex. App.—Houston [14th Dist.] April 1, 2010, no pet.).15

On March 10, 2010, while his direct appeal was pending, Petitioner filed his first application for a state writ of habeas corpus, arguing that his enhanced sentence was illegal.16 In particular, Petitioner argued that punishment for his third degree felony conviction was enhanced improperly with the second enhancement paragraph of the indictment, which referenced his theft conviction in Cause No. 808126, because that offense was only a state jail felony. As such, this prior felony was not properly used to enhance his punishment. The state habeas court appointed Mr. Adam Brown as counsel to represent Petitioner during his first habeas proceeding on May 26, 2010.17 In its Answer in Cause No. 1227343-A, the State agreed that Petitioner's sentence was not authorized because the enhancement referenced in the second paragraph of the indictment was a state jail felony and was not valid for enhancement purposes.18 On October 4, 2010, the state habeas court recommended that the Texas Court of Criminal Appeals ("TCCA") grant relief.19 On December 15, 2010, the TCCA dismissed the application without reaching themerits because Petitioner's direct appeal was pending at the time the application was filed.20

On December 27, 2010, Petitioner, apparently proceeding pro se,21 filed a second application for habeas relief in state court in Cause No. 1227343-B, alleging that his sentence was illegally enhanced.22 He amended his application to add claims for ineffective assistance of counsel and denial of due process of law.23 On February 22, 2011, the state habeas court ordered briefing on the following issues: (1) whether petitioner was denied effective assistance of counsel, and (2) whether the applicant was illegally confined due to an illegal sentence.24

The record reflects that Assistant District Attorney Andrew J. Smith certified that he served a copy of the "State's Proposed Findings of Fact, Conclusions of Law and Order" to Petitioner at his assigned prison unit on March 23, 2011.25 The State attached three exhibits authenticated as business records from the TDCJ, which detailed three alternate prior felony convictions that would each support Petitioner's 15-year enhanced sentence.26 In particular, the State tendered certified TDCJ records indicating that Petitioner had a 1982 robbery conviction in Harris County Cause No. 344734; a 1985 theft-by-receiving conviction in Harris County Cause No. 417926; and a 1998 arson conviction in Montgomery County Cause No.96-05-00693-CR.27

On June 6, 2011, the State filed its Answer, denying the factual allegations in the application, but acknowledging that Petitioner's "conviction for the state jail felony offense of theft in Cause No. 808126 cannot be used to enhance [Petitioner's] punishment for the third degree felony offense of theft."28 On June 7, 2011, one day after the State filed its Answer and allegedly before Petitioner had an opportunity to respond to the State's evidence of his prior convictions, the state habeas court adopted the State's proposed Findings of Fact and Conclusions of Law.29 In doing so, the state habeas court recommended that relief be denied because although the state jail felony conviction in Cause No. 808126 could not be used to enhance Petitioner's punishment, the State had proffered several other valid felony convictions which could be used to support Petitioner's enhanced sentence.30 The state habeas court's findings and conclusions were allegedly forwarded to the TCCA before Petitioner's objections, filed pro se, were filed on June 15, 2011.31

On September 28, 2011, the TCCA requested briefing on the doctrine of invited error and on whether enhancement of the challenged sentence was limited to the enhancement paragraphs in the indictment or whether other convictions could be used to make the sentence proper.32 On January 9, 2013, the Texas Court of Criminal Appeals ("TCCA") denied the application in a written opinion, with three justices dissenting. See Ex parte Parrott, 396 S.W.3d 531, 533 (Tex. Crim. App. 2013). The TCCA noted that the State did not dispute that a state jail felony was improperly used to increase Petitioner's punishment range to 2 to 20 years. See id. The majoritydetermined that Petitioner had "demonstrated a cognizable error" on state habeas review, but that he had "failed to establish that he was harmed by that error because his sentence is in accordance with his criminal history, admonishments, and plea-bargain agreement." Id. at 538. The majority reasoned that Petitioner failed to make that showing because the record reflected multiple, alternative prior convictions that could be used to enhance his sentence. Id. The majority also held that Petitioner had notice and an opportunity to be heard because state habeas proceedings allow for "proof [to] be developed through evidence beyond the appellate record," id. at 534, and that Petitioner "presented no evidence revealing any legal impediment to the use of his prior felony convictions for enhancement purposes." Id. at 536. The TCCA further found that trial counsel was not ineffective because she could have made the strategic decision not to object to the enhancement in the indictment in order to prevent the State from proffering the other prior convictions that could have further increased the potential punishment range. See id. at 534 n.5.

After the TCCA denied Petitioner's motion for rehearing on March 27, 2013, Petitioner filed his federal petition for habeas relief in this Court on April 2, 2013.33 In that petition, Petitioner sought federal habeas relief on the following claims: (1) he was denied due process because his sentence was not authorized under State law34; (2) he was denied effective...

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