State v. Kahookele

Decision Date09 June 2020
Docket NumberNO. 03-18-00399-CR,03-18-00399-CR
Citation604 S.W.3d 200
Parties The STATE of Texas, Appellant v. Edmund Koko KAHOOKELE, Appellee
CourtTexas Court of Appeals
OPINION

Jeff Rose, Chief Justice This is the State's pretrial appeal from an order quashing an indictment. See Tex. Code Crim. Proc. art. 44.01(a)(1). Edmund Koko Kahookele stands charged with two counts of possession of less than one gram of a controlled substance (cocaine and methamphetamine), enhanced by prior felony convictions. See Tex. Health & Safety Code §§ 481.102(3)(D), (6), .115(a), (b); Tex. Penal Code §§ 12.35(c), .42(d). Kahookele filed a motion to quash the indictment, contending that the State's use of a 1990 murder conviction to enhance his punishment violates the constitutional prohibition against ex post facto laws and that the State's use of the habitual-offender statute to further enhance his punishment violates the protections of due process and due course of law. The district court granted the motion, and the State challenges that ruling in six issues. For the following reasons, we will reverse the order quashing the indictment and remand this cause to the district court for further proceedings.

BACKGROUND

Kahookele's indictment charged him with two counts of the state-jail felony of possession of less than one gram of a controlled substance. See Tex. Health & Safety Code §§ 481.102(3)(D) (listing cocaine in penalty group 1), (6) (listing methamphetamine in penalty group 1), .115(a) (defining offense of possession of controlled substance listed in penalty group 1), (b) (stating that such offense is state-jail felony if amount possessed is less than one gram). Punishment for a state-jail felony is confinement in a state jail ranging from 180 days to two years. See Tex. Penal Code § 12.35(a). However, the indictment alleged that Kahookele had been convicted of murder in 1990, a "3g" offense, and sought to enhance the punishment range for his charged narcotics offenses to that of a third-degree felony. See id. § 12.35(c), see also id. § 12.34 (establishing punishment range for third-degree felony at two to ten years' imprisonment). Additionally, the indictment alleged that because of Kahookele's prior convictions for engaging in organized criminal activity and forgery by possession—both of which are non-state-jail felonies—the punishment range for his charged narcotics offenses should be further increased under the habitual-offender statute to a range of twenty-five to ninety-nine years or life. See id. § 12.42(d). Kahookele filed a "Motion to Quash the Indic[t]ment and Objections to the Enhancement Allegations" challenging the enhancement allegations under the 3g and habitual-offender statutes.

3g-enhancement allegations

Kahookele's motion noted that when he was convicted of murder in 1990, murder was not classified as a 3g offense. See Act of May 29, 1993, 73d Leg., R.S., ch. 900, § 4.01, sec. 3g(a)(1)(A), 1993 Tex. Gen. Laws 3586, 3718 (current version at Tex. Code Crim. Proc. § 42A.054(a)(2)) (adding murder to list of 3g offenses in former Tex. Code Crim. Proc. art. 42.12, § 3g(a)(1) ).1 He objected that the State's use of the 1990 murder conviction as a 3g offense to enhance the punishment range for the narcotics charges to a third-degree felony violated the constitutional protection against ex post facto laws.

Kahookele also contended that the murder conviction was pursuant to a plea bargain specifying that there would be no finding as to the use of a deadly weapon. He objected that the State's reliance on subsequent legislation to raise the maximum punishment violates his rights to due process and due course of law and deprives him of the understanding that he had concerning the collateral consequences of his plea to the murder charge when he made it.

Habitual-offender enhancement allegations

Further, Kahookele objected to the paragraphs of the indictment alleging that his punishment range should be enhanced under the habitual-offender statute. See Tex. Penal Code § 12.42(d). He contended that even if the district court found that his offenses should be punished as a third-degree felony, the charged offense of possession of a controlled-substance itself is still a state-jail felony and that such offense may not be further enhanced except as provided by subsection 12.425(c). See Ex parte Reinke , 370 S.W.3d 387, 389 (Tex. Crim. App. 2012) (concluding that unless Legislature specifies otherwise, enhancement based on prior offenses increases only punishment range). Thus, Kahookele contended that the maximum-punishment range for the charged narcotics offenses should be that of a second-degree felony. See Tex. Penal Code § 12.425(c) ("If it is shown on the trial of a state jail felony for which punishment may be enhanced under Section 12.35(c) that the defendant has previously been finally convicted of a felony other than a state jail felony punishable under Section 12.35(a), on conviction the defendant shall be punished for a felony of the second degree.").

After a hearing, the district court issued an order granting Kahookele's motion.2 This appeal by the State followed.

DISCUSSION

In six issues, the State challenges the district court's order quashing Kahookele's indictment. Specifically, the State contends that the district court erred because:

(1) the enhancement allegations in the indictment do not violate the ex post facto prohibition;
(2) there was no evidence in the record showing the terms of Kahookele's plea bargain as to the murder offense and no evidence about the inclusion of an agreement to omit a deadly weapon finding;
(3) regardless of whether there had been a plea-bargain agreement to omit a deadly weapon finding, a state-jail felony may be enhanced with a prior conviction of murder;
(4) a defendant's lack of knowledge of collateral consequences of his guilty plea does not render it involuntary;
(5) an aggravated state-jail felony under 12.35(c) of the Penal Code may be further enhanced under section 12.42(d) of the Penal Code ; and
(6) there was no legal basis to quash the enhancements in paragraphs I and II alleging prior convictions that were not state-jail felonies.

We review a trial court's ruling on a motion to quash a charging instrument de novo. State v. Ross , 573 S.W.3d 817, 820 (Tex. Crim. App. 2019) ; Smith v. State , 309 S.W.3d 10, 13-14 (Tex. Crim. App. 2010).

As we have noted, Kahookele is charged with two counts of possession of less than one gram of a controlled substance. Possession of less than one gram of cocaine or methamphetamine is a state-jail felony. See Tex. Health & Safety Code §§ 481.102(3)(D), (6), .115(a), (b). The punishment for a state-jail felony is confinement in a state jail ranging from 180 days to two years. See Tex. Penal Code § 12.35(a).

However, a defendant convicted of a state-jail felony is eligible for harsher, third-degree felony punishment—as an "aggravated state-jail felony"—if he was previously convicted of a "3g offense."3 See id. § 12.35(c)(2)(A) (providing that state-jail felony shall be punished as third-degree felony if it is shown at trial that defendant has prior, final conviction for 3g felony); see also id. § 12.34(a) (establishing punishment range for third-degree felony at imprisonment for not more than ten years or less than two years); Ford v. State , 334 S.W.3d 230, 233 (Tex. Crim. App. 2011) (addressing "aggravated" state-jail felonies enhanced under subsection 12.35(c)). A 3g offense is a felony that: (1) is listed among the more serious offenses under subsection 3g(a)(1) of former article 42.12 of the Texas Code of Criminal Procedure, or (2) involved an affirmative deadly weapon finding under subsection 3g(a)(2), indicating that the defendant used or exhibited a deadly weapon during the commission of the offense. See former Tex. Code Crim. Proc. art. 42.12, § 3g(a)(1), (2) (current version at Tex. Code Crim. Proc. § 42A.054(a)(2), (b)); Tex. Penal Code § 1.07(a)(17) (defining "deadly weapon").

Moreover, a defendant who has two prior sequential non-state-jail felony convictions is eligible for punishment enhancement under subsection 12.42(d) of the habitual-offender statute. See Tex. Penal Code § 12.42(d). The punishment range under subsection 12.42(d) is imprisonment for twenty-five to ninety-nine years or life. Id.

Kahookele's indictment contained these 3g and habitual-offender allegations:

§ 12.35(c) ENHANCEMENT PARAGRAPH
THE GRAND JURORS aforesaid do further present in and to said Court at said term that EDMUND KOKO KAHOOKELE had previously been finally convicted of a felony listed in Section 3g(a)(1), Article 42.12, Code of Criminal Procedure, to-wit: on or about the 12th day of March, 1990, in the 147th Judicial District Court of Travis, County, Texas, in No. 100,568, styled The State of Texas vs. Eddie Kahookele, EDMUND KOKO KAHOOKELE, defendant herein, was duly and legally convicted of the felony offense of Murder by Intending to cause Serious Bodily Injury, alleged to have been committed on or about the 22nd day of April, 1989, upon an indictment then pending in said Court and of which offense said Court had jurisdiction.
ENHANCEMENT PARAGRAPH I
THE GRAND JURORS aforesaid do further present in and to said Court at said term that on or about the 14th day of July, 2004, in the 147th Judicial District Court of Travis County, Texas, in No. 945141, styled The State of Texas vs. EDMUND KAHOOKELE, EDMUND KOKO KAHOOKELE, defendant herein, was duly and legally convicted of the felony offense of ENGAGING IN ORGANIZED CRIMINAL ACTIVITY, alleged to have been committed on or about the 26th day of July, 1993, upon an indictment then pending in said Court and of which offense said Court had jurisdiction, and as alleged said offense occurred prior to and the conviction therefore became final prior to the commission of the offense alleged in Count I or the offense alleged in Count II above.
ENHANCEMENT PARAGRAPH II
THE GRAND JURORS aforesaid
...

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