Opinion
NO. WR-88 970-01
05-01-2024
EX PARTE Tanya Marie Warrell MCMILLAN, Applicant
Claire Hunt, for Applicant.
ON APPLICATION FOR A WRIT OF HABEAS CORPUS, CAUSE NO. CR14-150 IN THE 4TH DISTRICT COURT FROM RUSK COUNTY
Claire Hunt, for Applicant.
OPINION
Richardson, J., delivered the opinion of the Court in which Hervey, Newell, Walker, Slaughter, and McClure, JJ., joined.
In Ex parte Pue, we decided that the laws and public policy of Texas should be decided by our Legislature. There, we held that Texas law should define whether a prior conviction is final for the purposes of enhancing the punishment of an offense under Section 12.42 of the Texas Penal Code as opposed to another jurisdiction’s law. Ex parte Pue, 552 S.W.3d 226, 235 (Tex. Crim. App. 2018). Today, we are asked if there was ever a time prior to Pue when other States were allowed to unilaterally dictate the laws and public policy of our State. That answer is no, and we hold that the rule in Pue applies retroactively. Furthermore, we hold that Applicant’s federal felony conviction was final under the rule in Pue.
Cf. "No taxation without representation."
See Welch v. United States, 578 U.S. 120, 130-31, 136 S.Ct. 1257, 194 L.Ed.2d 387 (2016) ("[T]his Court has determined whether a new rule is substantive or procedural by considering the function of the rule, not its underlying constitutional source…. [W]here the conviction or sentence in fact is not authorized by substantive law, then finality interests are at their weakest."); Taylor v. Stale, 10 S.W.3d 673, 682, 684 (Tex. Crim. App. 2000) ("If the new rule does impact the truth-finding function, then the purpose factor will generally outweigh the reliance and administration of justice factors and require a holding of retroactivity…. [A]bolishing the juvenile exception to the accomplice witness rule significantly impacts the truth-finding function of the trial…. The accomplice witness rule is a prism through which the jury evaluates the strength of the evidence to convict and whether the State has proven the defendant’s guilt.").
Black’s Law Dictionary defines "justiciability" as "[t]he quality, state, or condition of being appropriate or suitable for adjudication by a court." Black’s Law Dictionary 1036 (11th ed. 2019). In defining "justiciability," it also quotes from Charles Alan Wright’s Federal Practice and Procedure: "Concepts of justiciability have been developed to identify appropriate occasions for judicial action…. The central concepts often are elaborated into more specific categories of justiciabilityadvisory opinions, feigned and collusive cases, standing, ripeness, mootness, political questions, and administrative questions." 13 Charles Alan Wright, et al., Federal Practice and Procedure § 3529, at 278 - 79 (2d ed. 1984). Id. (emphasis added).
In 2015, Applicant was convicted of theft. Prosecutors used Applicant’s 2001 federal felony conviction out of Alaska to enhance the theft offense to a first-degree felony resulting in Applicant receiving a forty-year sentence and a $10,000 fine. Applicant contends her 2001 federal conviction was not final when the instant offense occurred; therefore, the offense was unlawfully enhanced, and she received an illegal sentence.
The record shows an "Amended Judgement" dated May 13, 2003, showing Applicant sentenced to 10 months imprisonment and 5 years of supervised release. Both parties in their briefs refer to the "2003 conviction." Applicant was indicted on June 20, 2001 and pled guilty sometime later (the record is unclear on when). Applicant was originally sentenced on November 5, 2001. Applicant subsequently appealed her sentence and the federal appellate court affirmed Applicant’s sentence on May 14, 2002. See U.S. v. Warrell, 40 Fed.Appx. 425, 2002 WL 987359 (9th Cir. May 14, 2002) (Not for Publication).
Ex parte Pue, 552 S.W.3d 226, 235, 237 (Tex. Crim. App. 2018).
See Majority Opinion at 340–41 ("All of Applicant’s appeals were exhausted and mandate issued before she was arrested for the offense under question here."); Keller, P.J., Concurring Opinion at 341 ("[A] construction of a statute that impacts the punishment range for an offense must be applied retroactively.").
We filed and set this writ to determine (1) whether Pue, announced a new rule for purposes of retroactivity; (2) if Pue announced a new rule, whether it is a substantive or procedural rule; and (3) whether one of the exceptions to the general rule of retroactivity applies. See Teague v. Lane, 489 U.S. 288, 307, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989). Applicant argues Pue applies retroactively. We agree.
We answer the retroactivity issue for two reasons. First, we need to determine which choice of law to apply to answer the ultimate question on whether or not Applicant’s conviction that was used as an enhancement was "final." Second, there are several other cases that are being held pending a resolution of this retroactivity question. We filed and set the case in order to settle this statewide recurring issue.
Wood v. State, 486 S.W.3d 583, 588 (Tex. Crim. App. 2016).
See Petetan v. State, 622 S.W.3d 321, 334 (Tex. Crim. App. 2021) ("Texas courts are not empowered to give advisory opinions[.]").
We apply Stovall instead of Teague when determining the retroactivity of a state statute. Salinas v. State, 523 S.W.3d 103, 112 (Tex. Crim. App. 2017) (citing Taylor v. State, 10 S.W.3d 673, 681 (Tex. Crim. App. 2000)) ("[W]e adopt the Stovall balancing test for determining whether new rules of non-constitutional origin should be given retroactive effect") (Stovall v. Denno, 388 U.S. 293, 297, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967)). Stovall and Teague employ different frameworks to determine retroactivity. Both frameworks start with the threshold question on whether the rule is new. And both have distinct tests to determine whether a rule is considered new. See n. 6.
See Tex Penal Code § 31.03(e)(6)(A) (West 2012).
See Heckman v. Williamson Cnty., 369 S.W.3d 137, 147 (Tex. 2012) ("The Texas Constitution—the source of the requirements of justiciability in Texas—bars our courts from rendering advisory opinions[.]"); Patterson v. Planned Parenthood of Houston & Se. Texas, Inc., 971 S.W.2d 439, 442 (Tex. 1998) (citing Tex Const. art. II, § 1) ("The constitutional roots of justiciability doctrines such as ripeness, as well as standing and mootness, lie in the prohibition on advisory opinions, which in turn stems from the separation of powers doctrine.").
When we filed and set this case, we made a citation to Teague. To clarify, we currently apply Teague in our state habeas practice when determining retroactivity of constitutional rules. See e.g. Ex parte Maxwell, 424 S.W.3d 66, 70-71 (Tex. Crim App. 2014) ("Although the United States Supreme Court held in Danforth v. Minnesota [552 U.S. 264, 128 S.Ct. 1029, 169 L.Ed.2d 859 (2008)] that state courts need not utilize the Teague retroactivity rule, we follow Teague as a general matter of state habeas practice, and we will not deviate from our precedent in this instance."). Maxwell dealt with determining the statewide retroactive application of the Supreme Court of the United States’ holding that "the [U.S.] Eighth Amendment forbids a sentencing scheme that mandates life in prison without possibility of parole for juvenile offenders." Miller v. Alabama, 567 U.S. 460, 479, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012). While this case was pending, the Supreme Court decided Edwards v. Vannoy, 593 U.S. 255, 141 S.Ct. 1547, 209 L.Ed.2d 651 (2021) (stripping watershed procedural rules from retroactivity on federal collateral review). Since we do not apply Teague in the instant case, we do not address the appropriateness of continuing using Teague and its progeny as a guide for determining whether a constitutional rule is retroactive for state habeas practice. The Supreme Court narrowing of retroactivity in federal habeas review in Vannoy, creates a question on whether this Court should continue applying retroactivity rules designed for the shrinking doors of federal habeas review. See also Jeffrey S. Sutton, 51 Imperfect Solutions (2018); Ex parte Lave, 257 S.W.3d 235, n. 15 (Tex. Crim. App. 2008) ("But the Teague rule is also grounded in principles of comity and deference to state courts, which have no application in state habeas corpus jurisprudence.").
See id. § 12.33(a).
The Court says it addresses the merits of the retroactivity issue in this case for two reasons. Majority Opinion at 338 n.3. First, we need to decide which law to apply. Id. But if the choice of law makes no difference to the bottom line in this case, we need not—and should not—decide it here. Second, other pending cases also depend upon resolution of the retroactivity issue. Id. To the extent that any of those cases do turn on which choice of law applies, that is undoubtedly so. But, if so, the Court should choose one of those cases to resolve the issue, not this one.
Holding Texas law applies for determining finality of a conviction for the purposes of enhancement in cases prior to Pue, we apply Texas law, not Federal law, to determine whether Applicant’s federal conviction was final. We hold that Applicant’s federal conviction was final under Texas law/and deny Applicant relief.
Whether Pue announced a new rule.
[1] We first ask whether Pue announced a new rule. If the rule was not new, then retroactivity applies automatically, including the instant writ. However, if Pue announced a new rule, then we proceed to the next question on whether it applies retroactively via a Stovall balancing test.
[2–4] To determine whether this Court announced a new rule, the interpretation of the criminal statute must have been a "clear break" with the past. Taylor v. State, 10 S.W.3d 673, 682 (Tex. Crim. App. 2000). The new interpretation must have been preceded by an inconsistent interpretation viewed as authoritative. "To be viewed as authoritative, the inconsistent interpretation must be either (1) a rule articulated in prior precedent from this Court, (2) a practice arguably sanctioned in prior cases from this Court, or (3) a longstanding practice that lower courts had uniformly approved." Nix v. State, 65 S.W.3d 664, 671 (Tex, Crim. App. 2001), abrogated on other grounds by Wright v. State, 506 S.W.3d 478 (Tex. Crim. App. 2016).
We apply the test articulated in Nix because this case deals with the interpretation of a state statute—not with the interpretation of a constitution. Teague uses a distinct framework to determine whether a constitutional rule is new. "In general, however, a case announces a new rule when it breaks new ground or imposes a new obligation on the States or the Federal Government…. To put it differently, a case announces a new rule if the result was not dictated by precedent existing at the time the defendant’s conviction became final." Teague, 489 U.S. at 301, 109 S.Ct. 1060 (emphasis in original). The State correctly points out that the Teague test for determining if a rule is new is "less stringent" than the Nix test. State’s Br. at *12. A holding is not dictated by precedent "unless it would have been ‘apparent to all reasonable jurists.’ " Chaidez v. United States, 568 U.S. 342, 347, 133 S.Ct 1103, 185 L.Ed.2d 149 (2013) (quoting Lambrix v. Singletary, 520 U.S. 518, 527–28, 117 S.Ct. 1517, 137 L.Ed.2d 771 (1997)).
See id. § 12.42(b).
Neither of the first two sufficient conditions are met here, because the Court never addressed the statutory interpretation question prior to Pue, There were only two cases where this Court opined on this general area—Ex parte Blume and Diremiggio v. State. 618 S.W.2d 373 (Tex. Crim. App. 1981); 637 S.W.2d 926 (Tex. Crim. App. 1982) (Panel No. 1). And as we explained in Pue, those cases were "stretched to stand for the proposition that if it is good enough for them, it is good enough for us." Pue, 552 S.W.3d at 233. Thus, Pue was the first time this Court specifically provided an authoritative interpretation on which law to use for determining finality of a non-Texas conviction.
This leads us to the third sufficient condition to determine if there is a "clear break"—whether there was a longstand- ing practice uniformly approved by lower courts. At the time Pue was decided, only five courts of appeals had held (less than half of all the appellate districts in Texas) that an out-of-state conviction is final for enhancement purposes if it was final under the law where the conviction occurred. Two more appellate districts issued similar rulings but left them unpublished so they would not have a precedential effect. Less than half of the Courts of Appeals publishing opinions is not enough, in our judgement, to constitute a "longstanding practice that lower courts had uniformly approved." Finding no authoritative statewide interpretation prior to Pue, we hold that Pue did not announce a new rule and is therefore automatically retroactive.
Pue cited to seven courts of appeals decisions that applied foreign law for determining the finality of a foreign conviction: Ramos v. State, 351 S.W.3d 913, 915 (Tex. App.—Amarillo 2011, pet. ref’d); Ajak v. State, No. 07-14-00018-CR, 2014 WL 3002811 (Tex. App.—Amarillo 2014, no pet.) (mem. op.; not designated for publication); Dominque v. State, 787 S.W.2d 107, 108–09 (Tex. App.—Houston [14th Dist.] 1990, pet. ref’d, untimely filed); Moore v. Slate, No. 05-10-01306-CR, 2012 WL 858606, at *9 (Tex. App.—Dallas March 12, 2012) (not designated for publication); Skillern v. State, 890 S.W.2d 849, 883 (Tex. App.—Austin 1994, pet. ref’d), declined to follow on other grounds by Ex parte Jones, 440 S.W.3d 628 (Tex. Crim. App. 2014); Dunn v. State, No. 14-05-00276-CR, 2006 WL 8432982, (Tex. App.—Houston [14th Dist.] August 17, 2006, pet. ref’d) (not designated for publication); Mitchell v. State, No. 05-06 01706-CR, 2008 WL 713635 (Tex. App.—Dallas March 18, 2008) (mem. op.; not designated for publication). Pue at 231, n.21. The State also notes additional court of appeals cases that did not apply the Pue rule: Lee v. State, 582 S.W.3d 356, 365-66 (Tex. App.—San Antonio 2018, pet. ref’d); Brown v. State, 508 S.W.3d 453, 460 (Tex. App.—Fort Worth 2015, pet. refd); Jordan v. State, No. 01-13-00721-CR, 2015 WL 6768497, at *8 (Tex. App.—Houston [1st Dist.] Nov. 5, 2015, no pet.) (mem. op.; not designated for publication). State’s Br. at *10–11, n.3.
See id. § 12.32(a).
See Tex. R. App. P, 47.7 (stating that an opinion designated as "Do Not Publish" has no precedential value).
Conclusion 2 under the habeas court’s findings of fact and conclusions of law says: "The prior enhancement to which the jury found to be true was not probated. (Exhibit D)." Exhibit D is the federal judgment of the prior conviction.
Applying the Pue rule to determine the finality of Applicant’s federal conviction.
[5] Because we hold our laws determine the finality of a non-Texas conviction to all cases prior to Pue, the next step is to apply Texas law to determine whether or not Applicant’s federal conviction was final. We hold that Applicant’s federal conviction was final under Texas law and was a proper enhancement for Applicant’s instant conviction. Therefore, we deny relief.
[6–12] As Pue explained, "[t]he imposition of the sentence is required to establish the finality of the conviction" under Texas law. And under Texas law, when a defendant appeals, "a conviction … is not considered to be a final conviction until the conviction is affirmed by the appellate court and that court’s mandate of affirmance becomes final." Jones v. State, 711 S.W.2d 634, 636 (Tex. Crim. App. 1986).
"It is well established that under Texas law only convictions that are ‘final’ can be used for enhancement purposes. It is equally well established that a conviction is not final for enhancement purposes where the imposition of sentence has been suspended and probation granted. A successfully served probation is not available for enhancement purposes. The imposition of a sentence is required to establish the finality of a conviction. However, a probated sentence can turn into a final conviction if probation is revoked." Ex parte Pue, 552 S.W.3d. 226, 231 (Tex. Crim. App. 2018) (quotations and citations removed).
See supra at n.2.
Applicant was sentenced to 10 months imprisonment and 5 years of supervised release. The term of supervised release was part of the sentenced imposed, and not a suspension of the sentence. All of Applicant’s appeals were exhausted and mandate issued before she was arrested for the offense under question here. Applicant was originally sentenced by a federal judge on November 5, 2001, and an appellate court subsequently affirmed the sentencing on May 20, 2002. Therefore, we hold Applicant’s federal conviction arising out of Alaska was final prior to her committing the instant offense. It was a proper enhancement.
Conclusion.
We hold the Pue rule, that Texas law determines the finality of a foreign conviction for enhancement purposes in Texas, applies retroactively. We find Applicant’s federal conviction to be final applying Texas law. We deny relief.
Keller, P.J., filed a concurring opinion.
Yeary, J., filed a concurring opinion.
Keel, J., concurred.
CONCURRING OPINION
Keller, P.J., filed a concurring opinion.
I agree that Ex parte Pue applies retroactively to this case, but I do so because, even if it is new, a construction of a statute that impacts the punishment range for an offense must be applied retroactively. Whether an offense is available for enhancement purposes is both substantive law and one that impacts the truth-finding function by affecting the sufficiency of the evidence to support a certain punishment range.1a
But the Court does not adequately explain the next issue: whether Applicant’s conviction was in fact final under Texas law. Under Texas law, a probated sentence does not constitute a final conviction for enhancement purposes,2a but a sentence of incarceration does, assuming that mandate on appeal has issued or the time for appeal has run.3a At issue in this case is how to treat a certain type of federal punishment. When a defendant has been convicted of a federal crime, a federal court can impose a sentence that includes a period of incarceration followed by a period of supervised release. Is this type of punishment a judgment imposing probation or a sentence of incarceration? As I shall explain, it is a non-probated sentence of incarceration under Texas law. Consequently, the prior federal conviction used in Applicant’s case was final under Texas law even though her supervised release was never revoked.
I. BACKGROUND
In 2003, Applicant was convicted in federal court of bank fraud. The federal judgment required Applicant to serve 10 months in prison and, upon release from that imprisonment, 5 years of supervised release. The period of supervised release was terminated early, in 2005.
Applicant was later indicted in this case for committing second-degree felony theft in 20134a The range of punishment was 2 to 20 years,5a but the State alleged Applicant’s 2003 federal conviction for enhancement purposes, which raised the punishment level to that of first-degree felony,6a with a range of punishment of 5 to 99 years or life.7a Applicant was found guilty of theft, pled true to the enhancement, and was sentenced to 40 years in prison.
The habeas court concluded that the prior conviction "was not probated."8a If that conclusion is correct, Applicant’s conviction was final under Texas law because there was no appeal pending at the time the prior conviction was used for enhancement.
II. ANALYSIS
Applicant now claims that her sentence is illegal because her prior federal conviction was an unrevoked, probated sentence that was not final under Texas law. The habeas court’s conclusion is to the contrary, and the habeas court is correct.
Under Texas law, a judgment imposing probation is not a final conviction for enhancement purposes.9a This is because, for a conviction to be final, sentence must be imposed. But a judgment imposing probation suspends the imposition of sentence. Probation has to be revoked for the conviction to be final. "Shock probation" also renders a judgment of conviction non-final for enhancement purposes, though in a slightly different way. With "shock probation," sentence has been imposed, but later, "the further execution of the sentence is suspended." When that happens, "the conviction becomes non-final for purposes of enhancement, and will not become final for such purposes unless revoked."
Pue, 552 S.W.3d at 230.
Id. at 231.
Ex parte Langley, 833 S.W.2d 141 143 (Tex. Crim. App. 1992).
Id.
Id.
But "supervised release" in the federal system is different from probation or shock probation. Under federal statute, a district court "may include as a part of the sentence a requirement that the defendant be placed on a term of supervised release after imprisonment." Under the terms of the statute, supervised release is part of the sentence, not a suspension of the sentence. In addressing the statute the Supreme Court has confirmed, "Supervised release is a form of punishment that Congress prescribes along with a term of imprisonment as part of the same sentence."
18 U.S.C.S. § 3583(a) (2003).
Mont v. United States, — U.S. —, 139 S. Ct. 1826, 204 L.Ed.2d 94 (2019).
The statute governing supervised release is in United States Code Chapter 227, Subchapter D, entitled "Imprison- ment." Probation in the federal statutory scheme, is addressed elsewhere—in Subchapter B, entitled "Probation." The probation statute allows a defendant to "be sentenced to a term of probation." Although "probation" is termed a "sentence" under federal statute, it is a different type of sentence from one of "imprisonment." But as discussed earlier, "supervised release" is a part of a sentence of imprisonment.
See 18 U.S.C.S., Chapter 227, Subchapter D.
See id., Subchapter B.
Id.§ 3561(a) (2003).
The Supreme Court has also explained that, with sentencing reforms in 1984, "Congress eliminated most forms of parole in favor of supervised release, a form of postconfinement monitoring overseen by the sentencing court, rather than the Parole Commission." The rationale for replacing parole with supervised release was "to assist individuals in their transition to community life" and to give the district courts "the freedom to provide post-release supervision for those, and only those, who needed it " Rather than suspending a sentence to give a probationer the opportunity to avoid incarceration, federal supervised release provides a transition period to reintegrate into society after incarceration, making supervised release like parole instead of like probation.
Johnson v. United States, 529 U.S. 694, 696, 120 S.Ct. 1795, 146 L.Ed.2d 727 (2000).
Id. at 709, 120 S.Ct. 1795.
So Applicant’s conviction is final under Texas law because federal supervised release is a part of the federal sentence and not a suspension of that sentence. With these comments, I concur in the Court’s judgment.
Yeary, J., filed a concurring opinion.
I write separately to take issue with two aspects of the Court’s opinion today: (1) whether the issue of retroactivity is even properly before the Court in this case—is it even justiciable?; and (2) whether the underlying challenge to Applicant’s conviction is even cognizable in post-conviction habeas corpus proceedings. For the following reasons, I can only concur in the result, which I think is undoubtedly correct.
I. J usticiability 1b
Because both the Court and Presiding Judge Keller seem to agree that Applicant is not entitled to relief regardless of whether the Court’s holding in Ex parte Pue, 552 S.W.3d 226 (Tex. Crim. App. 2018), applies retroactively,2b I fail to understand why it is even necessary to decide that question. If Applicant is not entitled to relief as a matter of Texas law, regardless of whether Pue is or is not to be applied retroactively, then what difference does a resolution of the retroactivity question make in this case? Are the parts of the Court’s opinion regarding retroactivity, such as they are, not wholly advisory in nature?3b Is this question even justiciable?4b What am I missing here?5b
II. C ognizability
In any event, until the Court definitively explains why a challenge to an enhancement provision such as this is even cognizable in state post-conviction habeas corpus proceedings to begin with, all questions of retroactivity aside, I cannot agree that it is appropriate to grant relief in such cases. See Pue, 552 S.W.3d at 239 (Yeary, J., dissenting) ("[N]ot every claim of ‘illegal sentence’ rises to [the] level of systemic requirement or prohibition so as to justify entertaining it when it is only raised for the first time in an initial habeas corpus collateral attack.").
The only thing I can agree with is the Court’s bottom line: Relief should be denied. I therefore concur only in the result.