Shivers v. State

• Decision Date: 13 December 1978
• Docket Number: No. 59627,No. 2,59627,2
• Citation: 574 S.W.2d 147
• Parties: Melvin C. SHIVERS, Appellant, v. The STATE of Texas, Appellee
• Court: Texas Court of Criminal Appeals

Page 147

574 S.W.2d 147

Melvin C. SHIVERS, Appellant, v. The STATE of Texas, Appellee.

No. 59627.

Court of Criminal Appeals of Texas, Panel No. 2.

Dec. 13, 1978.

C. David Stasny, Bryan, (on appeal), John M. Barron, Jr., Bryan, for appellant.

Roland M. Searcy, Jr., Dist. Atty. and Larry A. Catlin, Asst. Dist. Atty., Bryan, (on appeal), W. T. McDonald, Jr., Dist. Atty. and W. W. Toney, Asst. Dist. Atty., Bryan, for the State.

Before ODOM, PHILLIPS and DALLY, JJ.

OPINION

ODOM, Judge.

This is an appeal from a conviction for possession of heroin; punishment, enhanced by proof of two prior convictions, was fixed at life by the terms of V.T.C.A., Penal Code Sec. 12.42(d).

Appellant's court-appointed counsel has filed a brief in which he concludes the appeal is wholly frivolous and without merit. Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493. Appellant has filed a pro se brief raising several grounds of error.

We have reviewed the record and briefs and agree that the appeal is frivolous, and we affirm the judgment.

The concurring opinion has seized upon one of the grounds urged in the pro se brief as an opportunity to argue that a long line of statutory construction be overruled. The established judicial construction of the felony habitual offender statute is that no felony conviction may be twice used under its provisions to obtain a punishment enhanced to life. The adoption of a new penal code in 1973 did not evidence any intent on the part of the legislature that a different interpretation should thereafter govern. See Carvajal v. State, 529 S.W.2d 517 (Tex.Cr.App.) and the Practice Commentary to Sec. 12.42(d), supra. The legislature's failure to indicate a change in intent is of significance because we are here addressing a matter of statutory construction, not of judicially created rules of decision, as in evidentiary matters.

The facts upon which the issue would turn in this case show that the doctrine against multiple use of prior convictions for securing punishment as a habitual offender was not violated. Appellant argues his prior conviction in Cause No. 9614 in the 85th Judicial District Court of Brazos County, used for enhancement in this case, had previously been used to secure a life sentence in 1969 in Cause No. 9985 in the 85th Judicial District Court of Brazos County. The history of that 1969 conviction, however, shows that the life sentence was set aside in a collateral attack in Ex parte Shivers, 501 S.W.2d 898 (Tex.Cr.App.). Hence, the prior conviction used here had not previously been used successfully to secure a life sentence. Johnson v. State, 158 Tex.Cr.R. 154, 253 S.W.2d 1006. Thus, the proposal to abandon the long-standing rule upon which appellant attempts to rely is not even necessary for the affirmance of this case, since appellant is not within the terms of that rule. The position would be mere dictum.

We do, however, take this opportunity to bring to the attention of the legislature the numerous complexities existing in this area of the law, and the ease with which the legislature could simplify those matters and the litigation involving them. For a comprehensive discussion of this unnecessarily complex area of the law we cite the concurring opinion in this case as recommended reading.

The judgment is affirmed.

DALLY, Judge, concurring.

After a review of the record, counsel's brief, and the pro se brief I believe one contention merits discussion. That contention is that appellant's prior conviction in Cause No. 9614 for the offense of burglary in the 85th Judicial District Court of Brazos County had previously been used to enhance his punishment in another cause.

Appellant was indicted in 1969 in Cause No. 9985 in the 85th Judicial District Court of Brazos County for the primary offense of burglary with intent to commit theft under the former Penal Code. The indictment also alleged two prior non-capital felony convictions for purposes of enhancement of punishment under Article 63, Vernon's Ann.P.C. (1925). These were a 1965 burglary conviction in Cause No. 9614 in the District Court of Brazos County and a conviction for burglary in Cause No. 9454 in the District Court of Brazos County. Appellant was convicted of the primary offense, and his punishment was assessed at life imprisonment pursuant to Article 63, supra. Appellant appealed this conviction to this Court; however, the conviction and life sentence were affirmed. Shivers v. State, 460 S.W.2d 915 (Tex.Cr.App.1970).

Subsequently, appellant filed a post-conviction habeas corpus proceeding under the provisions of Article 11.07, Vernon's Ann.C.C.P. There he contended that at the time his probation was revoked in Cause No. 9454 in the 85th Judicial District Court, which was one of the two prior burglary convictions alleged for enhancement, he was indigent, did not have counsel, and did not waive counsel. Following an evidentiary hearing in the convicting court, the trial judge entered findings of fact and conclusions of law that appellant's allegations were correct and that he was entitled to the relief sought. This Court found that the evidence supported the trial court's finding and ordered appellant released from the Department of Corrections and remanded to the custody of the sheriff of Brazos County to answer the indictment in Cause No. 9985. Ex parte Shivers, 501 S.W.2d 898 (Tex.Cr.App.1973).

On motion for rehearing, the State contended that if appellant was entitled to any relief it was that appellant's sentence should be reformed to confinement in the Department of Corrections for a term of 12 years, the maximum sentence under Article 62, Vernon's Ann.P.C. (1925), for the offense of burglary with intent to commit theft. This Court agreed, concluding:

"The State's motion for rehearing is granted to the extent that the order remanding petitioner to the sheriff of Brazos County to answer the indictment in Cause No. 9985 is set aside, and it is ordered that petitioner's confinement under this conviction cannot exceed 12 years in accordance with Article 62, V.A.P.C." Ex parte Shivers, supra, at 902.

Appellant was indicted in the instant cause for the primary offense of knowingly and intentionally possessing heroin. Two prior felony convictions were alleged for the purpose of enhancement of punishment under V.T.C.A., Penal Code, Sec. 12.42(d). The first prior conviction alleged was appellant's 1969 conviction for burglary of a building in Cause No. 9985 in Brazos County, which was the primary offense alleged in appellant's conviction which was affirmed in Shivers v. State, supra. The other conviction which was alleged was appellant's 1965 conviction for burglary in Cause No. 9614 in Brazos County. This conviction had previously been used to enhance punishment in Cause No. 9985.

The seminal case on the subject is Kinney v. State, 45 Tex.Cr.R. 500, 79 S.W. 570 (1904). There it was stated:

". . . Evidently it never was intended that prior offenses could thus be made to do double duty; that is, that prior cases could be used to enhance the punishment in any given case more than once. To give the statute such an effect would be violative of the principle of former jeopardy, which inhibits a defendant from being convicted more than once for the same offense. The only difference is that here the same offense was used more than once in order to enhance his punishment. The statute allows these offenses to enter into a subsequent offense for the enhancement of the punishment in as many as four cases. There is no statutory authority that prior offenses can be used more than in the four cases on the contingencies mentioned. So it would follow that the judgment in this case cannot be sustained, because the same cases on which the enhanced punishment is predicated here had previously been exhausted."

From the discussion to follow it will be seen that Kinney was based on a false premise; that is, that the multiple use of a prior conviction for enhancement purposes "would be violative of the principle of former jeopardy."

Since at least 1895 the Supreme Court of the United States has held that recidivist statutes do not twice put a defendant in jeopardy for the same offense. Moore v. Missouri, 159 U.S. 673, 16 S.Ct. 179, 40 L.Ed. 301 (1895); McDonald v. Massachusetts, 180 U.S. 311, 21 S.Ct. 389, 45 L.Ed. 542 (1901); Graham v. West Virginia, 224 U.S. 616, 32 S.Ct. 583, 56 L.Ed. 917 (1912); Spencer v. Texas, 385 U.S. 554, 87 S.Ct. 648, 17 L.Ed.2d 606 (1967). Likewise, this Court has held that our recidivist statutes do not place a defendant in jeopardy a second time for the conviction so used. See e. g., Mullins v. State, 409 S.W.2d 869 (Tex.Cr.App.1966); Cherry v. State, 447 S.W.2d 154 (Tex.Cr.App.1969); Franks v. State, 462 S.W.2d 287 (Tex.Cr.App.1971); Schultz v. State, 510 S.W.2d 940 (Tex.Cr.App.1974).

The ruling in Kinney was criticized by Judge Beauchamp on motion for rehearing in Brown v. State, 150 Tex.Cr.R. 386, 196 S.W.2d 819 (1946). Kinney, however, was not overruled because the conclusion reached there had been consistently followed for the 42 years intervening. Judge Beauchamp stated:

". . . In as much as the articles on the subject have been re-enacted by the legislature with a knowledge of the judicial construction given same, we would not at this time, under the general rule of construction, be justified in overruling the Kinney case and those which have followed it. The fact that we still adhere to the conclusion does not mean that we endorse the reasoning given."

Likewise, our decision in Carvajal v. State, 529 S.W.2d 517 (Tex.Cr.App.1975), followed the Kinney rule for the reason stated in the above-quoted language from Brown, despite the State's contention that Sec. 12.42(d), supra, "should be construed differently from old Art. 63." Carvajal v. State, supra, at 521. The Court quoted from the Practice Commentary as follows:

"Subsection (d) preserves prior Article 63 . . . And...