EX PARTE ADAMS v. << (2024)

ORDER

Applicant was convicted of two first-degree felonies. A prior conviction from California was used to raise the minimum punishment for these offenses from five years to fifteen years. But under our later decisions in Ex parte Pue ¹ and Ex parte McMillan,² Texas law controls the finality of an out-of-state conviction for enhancement purposes, and the California conviction was not final under Texas law and therefore not usable for enhancement purposes. Applicant contends that the enhancement error in this case made his resulting sentences illegal, but he is mistaken.

In a typical illegal-sentence/improper-enhancement claim, the enhancement is necessary to support the sentence because the sentence is outside the range of punishment for the unenhanced offense. But Applicant's sentences were well within the range of punishment for his offenses, which were first-degree felonies even without any enhancements. Because his sentences were within the unenhanced punishment range, they were not illegal. What happened in this case is that a prior conviction was submitted to the jury for the purpose of raising the minimum punishment the jury could assess. That was jury charge error that could and should have been raised on direct appeal and is therefore not now cognizable on habeas corpus.

Applicant also contends that his trial attorney was ineffective for failing to object to the use of the prior California conviction. To the extent that he relies upon Pue, his complaint lacks merit because the law was unsettled at the time of trial on whether Texas or California law controlled the finality of a California conviction for enhancement purposes. But there remains a question of whether the California conviction was final under California law, and if it was not final under California law, whether counsel was ineffective for failing to raise that complaint. We remand to the trial court for further proceedings on the ineffective-assistance claim.

I. BACKGROUND

Two offenses are at issue here: (1) burglary with the intent to commit kidnapping (or accompanied by the attempted or actual commission of kidnapping), and (2) aggravated robbery of an elderly person.³ Applicant was charged by indictment with those offenses without any enhancements. The offenses were alleged to have been committed on or about June 21, 2012. The State later filed a notice of intent to enhance punishment. This notice alleged two prior California convictions and alleged that they occurred in a sequence necessary to support habitual status under Penal Code § 12.42(d).⁴ The notice alternatively alleged that one of the prior convictions would support a minimum punishment of 15 years.⁵ Both California convictions involved sentences that were suspended, though the written California orders in the habeas record do not specify whether the suspension was of the imposition or the execution of sentence.⁶

The jury found Applicant guilty of both burglary and aggravated robbery. The punishment jury charge alleged only one of the California convictions as an enhancement. Applicant pled “not true” to the enhancement, and the jury was instructed to determine whether or not it was true. The jury was instructed that the range of punishment without the enhancement was 5 to 99 years or life and a fine up to $10,000. It was instructed that the range of punishment with the enhancement was 15 to 99 years or life and no fine. For each offense, the jury was given a verdict form for both the unenhanced sentence and the enhanced sentence, and the jury filled out the verdict form for the enhanced sentence. The jury sentenced Applicant to 15 years for the burglary and 20 years for the aggravated robbery.

The judgment listed the degree of offense as “first degree felony,” listed “N/A” on findings on enhancement paragraphs, and listed the sentences assessed by the jury. The sentences were set to run concurrently.

II. ANALYSIS

A. Illegal-Sentence Claim

An illegal sentence is one that is not authorized by law.⁷ That occurs when the sentence is outside the range of punishment.⁸ A claim that a sentence is illegal because it exceeds the statutory maximum is cognizable in a writ of habeas corpus.⁹ This is true even if the reason the sentence is outside the range of punishment is that an enhancement was invalid.¹⁰

But Applicant's sentence was not outside the range of punishment. Both offenses at issue here, without enhancements, were first degree felonies.¹¹ The range of punishment for a first degree felony is 5 to 99 years or life.¹² Applicant's sentences of 15 and 20 years were within the range. They were not illegal.

This case is distinct from other cases we have decided, in which the sentence the defendant received exceeded the unenhanced range of punishment for the offense.¹³ In those other cases, we needed to decide whether the enhancement was proper or whether an improper enhancement was harmless because there was another usable conviction.¹⁴

Applicant's case is different because the prior conviction raised only the minimum punishment. If a defendant being tried for a first degree felony has a single final prior felony conviction, the minimum punishment is raised from 5 years to 15 years.¹⁵ But because Applicant's prior out-of-state conviction was not final under Texas law, it could not be used for this purpose under Pue and McMillan.¹⁶ But this was jury-charge error, not an illegal sentence, and Applicant could have raised the issue on direct appeal. He did not.¹⁷

Ordinarily, an issue that could have been raised on direct appeal cannot be raised on habeas corpus.¹⁸ Our illegal-sentence jurisprudence creates an exception to the bar against raising claims on habeas that could have been raised on direct appeal, but Applicant's case does not fall within that exception.

B. Ineffective-Assistance Claim

Applicant claims that his counsel “failed to discover this issue and make the proper objection.” In a supporting memorandum, he relies on this Court's holding in Pue that Texas law controls the finality of a prior out-of-state conviction for enhancement purposes. But Applicant's trial occurred before we handed down Pue, and Pue was the “first time this Court specifically provided an authoritative interpretation on which law to use for determining the finality of a non-Texas conviction.”¹⁹ Before Pue was handed down, five courts of appeals had held that an out-of-state conviction is final for enhancement purposes if it was final under the law where the conviction occurred.²⁰ So, until Pue, the law was unsettled regarding whether Texas law applied in determining the finality of an out-of-state conviction. We have consistently declined to find attorneys ineffective for failing to raise claims based on unsettled law.²¹

It might still be possible for counsel to have been ineffective if the prior conviction was not final under both Texas and California law.²²

The Court's opinion in Pue suggested that finality under California law depended on whether the judgment imposing probation suspended the imposition of sentence or suspended the execution of sentence.²³ The habeas record fails to show which of these occurred. But the reporter's record of the trial is not in the habeas record, and it is possible that the reporter's record would indicate which type of probation was imposed. It is also possible that something in the clerk's record of the trial that has not been included in the habeas record would shed light on the matter. Moreover, trial counsel has not been given an opportunity to respond to the ineffective-assistance allegation,²⁴ and the trial court has not made findings on that issue.

We therefore remand this application to the trial court to obtain evidence on the ineffective assistance claim—including an affidavit from trial counsel, any relevant portion of the reporter's record and clerk's record, and any other information the trial court deems relevant. The trial court shall make findings of fact and conclusions of law on the ineffective-assistance claim.²⁵ These shall include a finding on whether the prior conviction was final under California law, if such a determination can be made, or a finding that such a determination cannot be made. This finding on the finality issue shall include a finding on whether the judge in the prior conviction suspended the imposition of sentence or merely suspended the execution of sentence, if such a determination can be made. The trial court shall also make findings and conclusions on whether counsel performed deficiently and on whether Applicant suffered prejudice. The trial court may make any other findings or conclusions it deems appropriate. The trial court shall make findings of fact and conclusions of law within ninety (90) days from the date of this order. The district clerk shall then immediately forward to this Court the trial court's findings and conclusions and the record developed on remand, including, among other things, affidavits, proposed findings and conclusions, any parts of the clerk's and reporter's records from the trial designated by the trial court, and transcripts from any habeas hearings.²⁶ Any requests for extensions of time must be requested by the trial court and obtained from this Court.

FOOTNOTES

1.   552 S.W.3d 226 (Tex. Crim. App. 2018).

2.   688 S.W.3d 336 (Tex. Crim. App. 2024).

3.   Applicant was also originally convicted of a second burglary offense (with intent to commit, commission of, or attempted commission of injury to an elderly individual), but on appeal, this conviction was vacated on double-jeopardy grounds. Adams v. State, No. 04-15-00415-CR, 2016 WL 2584970 (Tex. App.—San Antonio May 4, 2016, no pet.) (not designated for publication).

4.   See Tex. Penal Code § 12.42(d) (West 2012) (creating a punishment range of 25 to 99 years or life).

5.   See id. § 12.42(c)(1) (raising minimum punishment for first degree felony to 15 years).

6.   Both orders say, “It is hereby ordered that imposition/execution of sentence herein be suspended.” One might expect one of those options to be circled, but there are no such markings.

7.   Anastassov v. State, 664 S.W.3d 815, 823 (Tex. Crim. App. 2022); Pue, 552 S.W.3d at 228.

8.   See Anastassov, supra; Ex parte Hill, 632 S.W.3d 547, 557 (Tex. Crim. App. 2021); Ex parte Rodgers, 598 S.W.3d 262, 267 (Tex. Crim. App. 2020); Pue, supra; Mizell v. State, 119 S.W.3d 804, 806 (Tex. Crim. App. 2003).

9.   Hill, supra at 556-57,; Pue, supra.

10.   Hill, supra; Pue, supra.

11.   See Tex. Penal Code §§ 29.03(a)(3)(A), (b) (aggravated robbery of an elderly person), 30.02(a)(1), (3), (d) (burglary with intent or attempt to, or commission of, a felony) (West 2012).

12.   Id. § 12.32(a). A fine up to $10,000 can also be assessed. Id. § 12.32(b).

13.   See McMillan, 688 S.W.3d at 338 (40-year sentence exceeded 2-to-20-year punishment range for unenhanced second degree felony); Pue, 552 S.W.3d at 227 (30-year sentence exceeded 2-to-10-year punishment range for unenhanced third degree felony); Ex parte Parrott, 396 S.W.3d 531, 533 (Tex. Crim. App. 2013) (15-year sentence exceeded 2-to-10-year punishment range for unenhanced third degree felony); see also Tex. Penal Code §§ 12.33(a) (second degree punishment range), 12.34(a) (third degree punishment range).

14.   See McMillan, supra at 338-39, (holding that the determination in Pue that Texas law applied was retroactive but also holding that prior federal conviction was final under Texas law); Pue, supra at 235, (Texas law controls whether an out-of-state conviction is final); Parrott, supra at 536-37, (improper enhancement was harmless because other prior usable convictions existed).

15.   See Tex. Penal Code § 12.42(c)(1) (West 2012).

16.   See supra at nn.13-14.

17.   See Adams, 2016 WL 2584970.

18.   See Ex parte Beck, 541 S.W.3d 846, 853 (Tex. Crim. App. 2017); Ex parte Townsend, 137 S.W.3d 79, 82 (Tex. Crim. App. 2004).

19.   McMillan, 688 S.W.3d at 339.

20.   Id. at 340.

21.   Ex parte Salinas, 664 S.W.3d 894, 909 (Tex. Crim. App. 2022); Ex parte Chandler, 182 S.W.3d 350, 358 (Tex. Crim. App. 2005).

22.   In California, a conviction does not have to be final to be usable for enhancement purposes. People v. Laino, 32 Cal.4th 878, 11 Cal.Rptr.3d 723, 87 P.3d 27, 38 (2004) (“The three strikes law clearly provides that a prior conviction occurs upon ‘the date of that prior conviction and is not affected by the sentence imposed.’ ”). Nevertheless, the version of the enhancement provision in effect when Appellant committed the primary offense explicitly required the finality of the prior conviction. See Tex. Penal Code § 12.42(c)(1) (West 2012) (“If it is shown on the trial of a felony of the first degree that the defendant has previously been finally convicted of a felony ․”). Thus, counsel might still be responsible for determining that the prior conviction was final under California law. See Pue, 552 S.W.3d at 236 (Keller, P.J., concurring) (“The State's contention that California law did not require a conviction to be final to be usable for enhancement purposes is beside the point. Finality still had to be determined because § 12.42(d) demanded it.”).

23.   Pue, 552 S.W.3d at 234.

24.   See Hart v. State, 667 S.W.3d 774, 782 (Tex. Crim. App. 2023) (“[T]rial counsel should ordinarily be afforded an opportunity to explain his conduct before being denounced as ineffective.”).

25.   The trial court need not make any findings on the illegal-sentence claim, as our order addresses that issue in full.

26.   See Tex. R. App. P. 73.4(b)(4).

Per curiam.

Yeary and Newell, JJ., concurred.