Opinion
WR-69,159-07
09-25-2024
EX PARTE JERRY LEE FLORES, Applicant
Do not publish
ON APPLICATION FOR A WRIT OF HABEAS CORPUS CAUSE NO. C-372-W012470-0849816-D IN THE 372ND DISTRICT COURT FROM TARRANT COUNTY.
KEEL, J., dissented.
ORDER
PER CURIAM.
Applicant was convicted of driving while intoxicated and sentenced to life imprisonment. The Second Court of Appeals affirmed his conviction. Flores v. State, No. 2-02-340-CR (Tex. App.-Fort Worth Nov. 6, 2003) (not designated for publication). Applicant filed this application for a writ of habeas corpus in the county of conviction, and the district clerk forwarded it to this Court. See TEX. CODE CRIM. PROC. art. 11.07.
Applicant contends, among other things, that his sentence is illegal because non-final felony convictions out of Oklahoma were used to enhance the punishment range. Applicant has alleged facts that, if true, might entitle him to relief. Ex parte McMillan, 688 S.W.3d 336 (Tex. Crim. App. 2024); Ex parte Pue, 552 S.W.3d 226 (Tex. Crim. App. 2018). Accordingly, the record should be developed. The trial court is the appropriate forum for findings of fact. TEX. CODE CRIM. PROC. art. 11.07, § 3(d). In developing the record, the trial court may use any means set out in Article 11.07, § 3(d). If the trial court elects to hold a hearing, it shall determine whether Applicant is indigent. If Applicant is indigent and wants to be represented by counsel, the trial court shall appoint counsel to represent him at the hearing. See TEX. CODE CRIM. PROC. art. 26.04. If counsel is appointed or retained, the trial court shall immediately notify this Court of counsel's name.
The trial court shall make findings of fact and conclusions of law as to whether Applicant's sentence was enhanced with non-final felony convictions. The trial court shall also determine whether Applicant has different final felony convictions which could have been used to enhance the punishment range. See Ex parte Parrott, 396 S.W.3d 531 (Tex. Crim. App. 2013). The trial court may make any other findings and conclusions that it deems appropriate in response to Applicant's claim.
The trial court shall make findings of fact and conclusions of law within ninety 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, motions, objections, proposed findings and conclusions, orders, and transcripts from hearings and depositions. See TEX. R. APP. P. 73.4(b)(4). Any extensions of time must be requested by the trial court and obtained from this Court.
YEARY, J., filed a dissenting opinion.
Applicant, convicted of felony driving while intoxicated and sentenced to life imprisonment, contends that his sentence is illegal because non-final felony convictions from Oklahoma were used to enhance his punishment range. Flores v. State, No. 2-02-340-CR (Tex. App.-Fort Worth Nov. 6, 2003) (not designated for publication). Today, the Court remands this case for further development of the record. Specifically, it instructs the convicting court to "make findings of fact and conclusions of law as to whether Applicant's sentence was enhanced with non-final felony convictions." Court's Order at 2. I write separately to point out that a remand is wasteful and unnecessary.
In Ex parte Pue, the Court addressed whether the finality of an out-of-state conviction is properly construed under Texas law or the out-of-state law. 552 S.W.3d 226, 231 (Tex. Crim. App 2018). It determined that Texas law controlled. Id. at 235. Then, in Ex parte McMillan, the Court held that Pue applies retroactively. 688 S.W.3d 336, 340 (Tex. Crim. App. 2024). But the Court never "definitively explain[ed] why a challenge to an enhancement provision . . . is even cognizable in state post-conviction habeas corpus proceedings[.]" Id. at 344 (Yeary, J., dissenting).
Without an explanation as to how these enhancement provisions are cognizable on habeas, "I cannot agree that it is appropriate to grant relief in such cases." Id.; see Pue, 552 S.W.3d at 239 (Yeary, J., dissenting) (explaining that not all "illegal sentence" claims are cognizable on habeas). It follows, then, that I should not agree to remand for further development on the issue. See Pue, 552 S.W.3d at 242-43 (Yeary, J., dissenting) (Pue "is purely advisory in the absence of a principled holding that a claim of improper enhancement is cognizable in a post-conviction collateral attack").
Instead, I maintain that the ordinary and correct way to bring an improper-enhancement claim is by lodging an objection at trial, not by pursuing a collateral habeas attack. See Ex parte Westerman, 570 S.W.3d 731, 732 (Tex. Crim. App. 2018) (Yeary, J., dissenting) ("A defendant's failure to raise improper-enhancement claims at trial means that those claims should not be cognizable on habeas."). That is because "it is a defendant's responsibility-through his counsel-to investigate and become aware of factors that would weigh in favor of a lower sentence." Id. And because "habeas corpus cannot be used as a substitute for appeal," Ex parte Nelson, 137 S.W.3d 666, 667 (Tex. Crim. App. 2004), the onus is on defendant's trial counsel "to investigate the legitimacy of the State's enhancement counts, and to call any apparent deficiencies to the trial court's attention." Pue, 552 S.W.3d at 243 (Yeary, J., dissenting).
The argument to be made in a post-conviction habeas corpus proceeding, then, is either an ineffective assistance of counsel claim or an involuntary plea claim. Westerman, 570 S.W.3d at 732 (Yeary, J., dissenting). Or, again, if an objection was lodged at trial, the issue can be raised on direct appeal. See Pue, 552 S.W.3d at 239 n.1 (Yeary, J., dissenting). Collateral habeas attacks are best reserved for instances in which direct appeal is insufficient to address the problem. See id. at 241 (quoting Ex parte Rich, 194 S.W.3d 508, 513 (Tex. Crim. App. 2006)) ("The fact that the record on direct appeal would not have revealed that there was a problem with Applicant's sentence makes habeas corpus the appropriate avenue for affording him relief.").
Here, ultimately, even if the convicting court on remand were to find and conclude that Applicant's sentence was enhanced with nonfinal felony convictions, it would serve no purpose-his claim should not be deemed cognizable in any event. Accordingly, a remand burdening the convicting court with this task is uncalled for.
Because the Court instructs the convicting court to make recommended findings and conclusions related to a claim that is not cognizable, I respectfully dissent.