State v. Kahookele
Decision Date | 09 June 2020 |
Docket Number | NO. 03-18-00399-CR,03-18-00399-CR |
Citation | 604 S.W.3d 200 |
Parties | The STATE of Texas, Appellant v. Edmund Koko KAHOOKELE, Appellee |
Court | Texas Court of Appeals |
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.
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) ( ), (6) (listing methamphetamine in penalty group 1), .115(a) (defining offense of possession of controlled substance listed in penalty group 1), (b) (. 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 ( ). 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) ( ). 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) ().
After a hearing, the district court issued an order granting Kahookele's motion.2 This appeal by the State followed.
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:
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) ( ); see also id. § 12.34(a) ( ); Ford v. State , 334 S.W.3d 230, 233 (Tex. Crim. App. 2011) ( ). 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:
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...The State appealed. The court of appeals reversed the trial court's ruling and re-instated the indictment. State v. Kahookele , 604 S.W.3d 200, 213 (Tex. App.—Austin 2020). We granted Appellee's petition for discretionary review to decide whether an aggravated state-jail felony may be enhan......