Opinion
No. PD-0438-22
12-07-2022
Lloyd Otha CONLEY, Jr., Appellant v. The STATE of Texas
Christie Merchant, Longview, for Appellant. Sarah Bales Mikkelsen, for State of Texas
Christie Merchant, Longview, for Appellant.
Sarah Bales Mikkelsen, for State of Texas
Petition for discretionary review refused.
Yeary, J., filed a dissenting opinion in which Slaughter, J., joined.
I dissent to the Court's refusal to grant the State's petition for discretionary review in this case. The error at issue in this case clearly caused no real harm to Appellant. Reversal of his conviction is therefore an unwarranted response to it and a waste of time and resources for everyone involved.
A jury found Appellant guilty of the offense of theft in an amount under $2,500, enhanced to the level of a state-jail felony at the guilt phase of trial with two prior theft convictions. TEX. PENAL CODE § 31.03(e)(4)(D). At the punishment phase of trial, Appellant also pled true to two prior felony convictions. Under Section 12.425(b) of the Texas Penal Code, the two prior felony convictions made him susceptible to punishment "for a felony of the second degree." TEX. PENAL CODE § 12.425(b). The jury assessed his punishment, accordingly, at nine years’ incarceration.
Indeed, based upon Appellant's pleas of true to the punishment enhancement paragraphs, the trial court instructed the jury at the punishment phase to find them true and to assess his punishment as a felony of the second degree.
On appeal it was determined that the appellate record affirmatively reflected that the prior felony convictions that had been pled to establish Appellant's susceptibility to second-degree-felony punishment did not satisfy the chronology requirement of the statute. In other words, the record did not show that "the second previous felony conviction [was] for an offense that occurred subsequent to the first previous conviction having become final[.]" Id . Refusing the State's invitation to subject this defect in the State's proof to a harm analysis, the court of appeals reversed the trial court's judgment with respect to punishment and remanded the case to the trial court to conduct a new punishment proceeding. Conley v. State , No. 12-21-00109-CR, 2022 WL 3012441 at *3 (Tex. App.—Tyler July 29, 2022) (mem. op. not designated for publication).
Appellant did not claim on appeal that the State's evidence failed to establish that the second prior felony conviction did not become final before the offense on trial—the state-jail felony theft under $2,500—was committed. Of course, nothing in Section 12.425(b) requires such a sequence in any event, as I have argued elsewhere with respect to essentially identical statutory language in Sections 12.42(c) and (d) of the Texas Penal Code. See Ex parte Westerman , 570 S.W.3d 731, 738 (Tex. Crim. App. 2019) (Yeary, J., dissenting) (observing that "this requirement does not exist in the plain language of either Section 12.42(c) or in 12.42(d) with respect to the relationship between the offense on trial and the second enhancing felony"); Tex. Penal Code § 12.42(c), (d). That question is not before us in this case.
In its petition for discretionary review, the State argues that, if ever there were an instance of improper punishment enhancement that ought to be declared harmless on direct appeal, this is it. The State invites us to take this opportunity to reject the Court's categorical approach, suggested in Jordan v. State , 256 S.W.3d 286, 293 (Tex. Crim. App. 2008), that such an error, "even if subjected to a harm analysis, can never be deemed harmless." The State argues that this Court's subsequent holding in Ex parte Parrott , 396 S.W.3d 531 (Tex. Crim. App. 2013), demonstrates that this kind of error may indeed be deemed harmless under certain circumstances. Here, for example, not only did Appellant plead "true" to the enhancement counts, but the record also affirmatively reflects, without contradiction, that Appellant had also been finally convicted of several other felony offenses that would have satisfied the sequential criteria of Section 12.425(b). The State argues that it therefore makes no sense to send this case back to the trial court so that it can simply generate what is an essentially identical record on remand. I would grant the State's petition for discretionary review to address this contention. But I would also grant discretionary review on the Court's own motion to determine whether Appellant should have been prohibited from complaining about this improper enhancement for the first time on appeal when the basis for an objection was readily apparent on the appellate record and could have been brought to the attention of the trial court as a predicate to (or to obviate) an appellate complaint. See TEX. R. APP. P. 66.1 (the Court may review a court of appeals’ decision "on its own initiative"). I will briefly address this latter issue first before addressing the State's contention.
The State's failure adequately to prove an enhancement allegation does not set up a double-jeopardy bar to use of the same prior conviction or convictions for enhancement purposes in a retrial of the punishment phase. See Jordan , 256 S.W.3d at 292 & n.39 ("When a reviewing court determines that the State's evidence fails to show that an enhancement allegation is true, the Double Jeopardy Clause does not bar the use of the enhancement conviction during a retrial on punishment.") (citing Monge v. California , 524 U.S. 721, 118 S.Ct. 2246, 141 L.Ed.2d 615 (1998) ). Nor should double jeopardy principles bar the State on remand in this case from using the other prior felony convictions that were proven up at the first punishment hearing to satisfy the sequential criteria of Section 12.425(b) at a new punishment hearing. The State argues that it would simply be gratuitously regenerating the same evidence it produced at the first punishment hearing. See State's Petition for Discretionary Review at 5 ("[I]n cases where the record of the first trial already contains the requisite priors for a habitual-offender finding, there is every reason to expect the second jury will arrive at the same conclusion as the first."); id . at 3 ("Respectfully, this is inefficient.").
I. COURT'S OWN MOTION: ERROR PRESERVATION
For several years now I have argued that claims of improper enhancement should not ordinarily be cognizable in the context of post-conviction applications for habeas corpus relief. It is true that the Court has said that so-called "illegal sentence" claims may "always" be raised. Mizell v. State , 119 S.W.3d 804, 806 (Tex. Crim. App. 2003). But I have argued that this "principle, that an ‘illegal sentence’ may be raised ‘at any time,’ regardless of whether there was a contemporaneous objection lodged at trial, does not apply with respect to improper-enhancement claims—or at least not all (and maybe not even most ) improper-enhancement claims." Ex parte Clay , 539 S.W.3d 285, 287 (Tex. Crim. App. 2018) (Yeary, J., dissenting). See also Ex parte Pue , 552 S.W.3d 226, 240 (Tex. Crim. App. 2018) (Yeary, J., dissenting) (same); Ex parte Westerman , 570 S.W.3d 731, 732 (Tex. Crim. App. 2019) (Yeary, J., dissenting) (same); Ex parte Hill , 632 S.W.3d 547, 563–64 (Tex. Crim. App. 2021) (Yeary, J., concurring and dissenting) (same). More recently, I have extended that reasoning to argue that, at least when a basis to object to the enhancement was apparent on the record of the punishment phase of trial, an appellant who did not object to it at that time should not then be permitted to raise the issue of improper enhancement for the first time on direct appeal, or even in a motion for new trial. Rodriguez v. State , 578 S.W.3d 92, 95 (Tex. Crim. App. 2019) (Yeary, J., dissenting); Hestand v. State , 587 S.W.3d 409, 412–13 (Tex. Crim. App. 2019) (Yeary, J., dissenting).
I will not belabor those arguments here. Suffice it to say for present purposes that Appellant could readily have objected to the failure of the State's proof to show the proper sequence of the two prior felony offenses in this case. Indeed, the appellate record "affirmatively reflects" the improper sequence, and Appellant would or should have known to object. Conley , 2022 WL 3012441, at *2. Here, as it should have in Rodriguez and Hestand , the Court ought to grant discretionary review on its own motion to revisit whether such a claim may even be entertained on direct appeal when not preserved by a trial objection.
II. STATE'S PETITION: HARMLESS ERROR ANALYSIS
The State conceded on appeal that its own documentary evidence, admitted at the punishment phase of Appellant's trial, "affirmatively reflects" that the first felony conviction alleged to establish his second-degree felony status was not yet final by the time he committed the second alleged felony offense. While a plea of "true" to enhancement paragraphs will ordinarily relieve the State of its burden to prove them, an appellant may still challenge them on appeal, the Court has said, when the appellate record "affirmatively reflects" that the State's evidence is deficient. Ex parte Rich , 194 S.W.3d 508, 513 (Tex. Crim. App. 2006). On this basis, the court of appeals held that Appellant did not forfeit his claim on appeal, and it granted him a new punishment hearing. Conley , 2022 WL 3012441, at *2, *4.
Appellant was on probation for the first alleged felony offense, and the documentary evidence shows that his probation was not revoked until after he committed the second alleged felony offense. The Court has said that "Section 12.425 does not contain any statutory exception allowing enhancement through the use of conviction resulting in un-revoked probation." Donaldson v. State , 476 S.W.3d 433, 438 (Tex. Crim. App. 2015).
But the State's documentary evidence at the punishment phase of Appellant's trial also "affirmatively reflects"—and Appellant does not now, nor did he at trial, contest—that, many years after both of the felony convictions alleged in the indictment for enhancement had become final, he committed yet another series of felony offenses (seven in all) all of which he was convicted of on the same day in 2007. Appellant received ample pretrial notice of the State's intent to offer evidence of these seven subsequent felony convictions, and he declared "no objection" when the State's documentary evidence of those convictions was offered and admitted at the punishment hearing. This evidence could readily have served to remedy the deficiency in the State's proof of sequential prior felonies for purposes of Article 12.245(b).
Relying on Parrott , the State now argues that we should renounce the categorical rule announced in Jordan , and declare that, at least under some circumstances, deficiencies in the State's evidence to prove up enhancement paragraphs may be deemed harmless. See State's Petition for Discretionary Review at 6 ("In every way that matters, the enhancement error in this case is identical to the Parrott error: the allegations are defective but the defendant's actual criminal history supports the punishment range."). It is a needless waste of prosecutorial and judicial resources, in the State's view, to conduct a whole new punishment hearing at which the State will simply present the exact same documentary evidence of prior convictions that it introduced at the Appellant's first punishment hearing. This is a substantial argument that the Court should address.
This Court's opinion in Jordan was decided some four and a half years before its opinion in Parrott . And the conception of harmlessness that Jordan contemplated was of a different nature than that of Parrott . There is no particular reason that both conceptions of harm cannot be brought to bear to assess the reversibility of an improper punishment enhancement on direct appeal.
In Jordan , the defendant was convicted of possession with intent to deliver cocaine in an amount sufficient to set his punishment at life or a term of between fifteen- and ninety-nine-years’ confinement in the penitentiary. Jordan , 256 S.W.3d at 288 ; TEX. HEALTH & SAFETY CODE § 481.112(f). The State also alleged two prior felony convictions in order to enhance Jordan's range of punishment to that of a habitual felony offender under Section 12.42(d) of the Penal Code. This would have had the effect of raising the mandatory minimum punishment to twenty-five years’ confinement in the penitentiary. See TEX. PENAL CODE § 12.42(d) (raising the range of punishment to "life, or for any term of not more than 99 years or less than 25 years"). Similarly to this case, the evidence to establish the sequence of prior felony convictions was lacking. Jordan , 256 S.W.3d at 289. The jury assessed Jordan's punishment at life imprisonment, "the maximum sentence allowed under the habitual felony offender statute[.]" Id . at 288. Of course, the jury might have assessed Jordan's punishment at life in the penitentiary even without the habitual enhancement paragraphs, under Section 481.112(f) of the Health and Safety Code. For that reason, the State argued that, because the punishment evidence amply supported such a sentence even without the habitual enhancement, the inadequate enhancement evidence was rendered harmless. Id . at 290.
Presiding Judge Keller agreed with the State. In dissent, she observed:
In this case the harmlessness seems apparent. Even if the jury had been correctly instructed, it would have heard exactly the same evidence. The prior convictions would still have been presented as ‘convictions’ rather than simple bad acts. The only differences are that the jury would have been permitted to assess a lower minimum punishment, and the range of punishment would have been expanded by ten years. But the jury gave appellant 99 years—the highest term of years possible. I could readily conclude that the ten-year difference in the lower end of the punishment range might have mattered if the jury had assessed 25 years or 50 years, or even 75 years. But not 99 years.
Jordan , 256 S.W.3d at 295 (Keller, P.J., dissenting).
In assessing how a harmless error analysis ought properly to apply to this scenario, the Court in Jordan held that improper enhancement of punishment could "never be deemed harmless" under these circumstances—if only because of the "inherent, institutional pressure" the improper enhancement "generate[s]" upon the jury to impose a greater sentence even within the proper range of punishment, and because "there is no way to quantify what impact the unsupported finding of true had on the jury's normative sentencing function." Id . at 293. In other words, even when a jury assessed a sentence that fell within the proper (i.e. , unenhanced) range of punishment, it may nevertheless have been inappropriately influenced to assess a higher sentence than it might otherwise have done had it been instructed under the proper range of punishment. Because a reviewing court's assessment of the likelihood of such an artificially inflated sentence is necessarily "pure speculation[,]" the Court concluded, a harm analysis can "never" be resolved in the State's favor. Id .
But Parrott introduced a new concept of harmlessness into the equation, albeit in the context of resolving post-conviction habeas corpus claims of improper enhancements. In that context, applicants have a burden to establish harm, and the habeas proceedings themselves present an opportunity for the parties (including the State) to inject extra-appellate-record facts into the case relevant to the question of harm. Parrott , 396 S.W.3d at 534–5 & n.6. In Parrott , the Court asked whether the jury would inevitably have assessed punishment within the enhanced range even despite the State's seeming deficiency of proof at trial. It held that, when extra-appellate-record facts demonstrate that there were prior felony convictions other than those deficient priors actually pled and utilized at trial, and the applicant cannot demonstrate "any legal impediment" to the State's use of those other prior convictions to enhance, an "applicant has not shown that he was harmed by the error." Id . at 536–37.
The Parrott Court also concluded that there is no lack-of-notice impediment to finding harmlessness under these circumstances. The fact that the other conviction or convictions were not explicitly incorporated into the State's formal enhancement pleading did not necessarily render the trial-level deficiency in the State's proof harmful. Id . at 537–38 ; see also id . at 537 ("[L]ack of notice may result in harm, but lack of notice is not, in and of itself, harm."). Enhancement notice, the Court observed, need no longer take the form of formal allegations in a charging instrument. Id . (citing Brooks v. State , 957 S.W.2d 30, 34 (Tex. Crim. App. 1997) ). So long as some form of notice has been provided and the applicant has been given the opportunity to contest the validity or applicability of the other prior convictions to enhance, the Court said, he has failed to demonstrate harm. Id . at 538. This is an approach to appropriate harm analysis in the improper-enhancement context that the Court in Jordan simply did not consider.
In most cases on direct appeal, the record will not (as it does here) reveal the existence of other eligible final felony convictions, nor will the appellant have any form of notice of their existence, much less will he have been given an opportunity to contest their viability to enhance. Under those typical circumstances, Jordan ’s observation that any conclusion with respect to harm will be "pure speculation" may be well-taken. But this case presents the rare situation in which, notwithstanding the lack of a post-conviction hearing to develop additional facts relating to harm, the appellate record already contains more than sufficient information to establish a lack of harm, at least as Parrott conceptualized it.
The record in this case already shows that other eligible prior felony convictions exist that could have been used to satisfy Article 12.425(b), that Appellant was well aware of the State's intent to prove them at the punishment hearing, and that he was given every chance at that time to contest them. It is more than arguable that, consistent with Parrott ’s conception of harmless error, this is one of those rare direct appeals in which it would be appropriate to conclude that harmlessness is evident on the face of the appellate record.
III. CONCLUSION
I believe the Court should take this opportunity to revisit the overly categorical pronouncement in Jordan that "the State's failure to meets its burden of proof, even if subjected to a harm analysis, can never be deemed harmless." Jordan , 256 S.W.3d at 293 (emphasis added). The facts of this case serve to illustrate how it can well be argued that this observation is not invariably true, especially in light of the Court's later opinion in Parrott . Therefore, if the Court is going to continue to ratify appellate indulgence of an obvious improper enhancement claim even though that claim could have been, but was not, preserved by a trial objection, then it should grant the State's petition for discretionary review to address the harm question. Because the Court does not, I respectfully dissent.