IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL E
JUNE 10, 2003
______________________________JODY LEWIS FORTIER,
Appellant
v.
THE STATE OF TEXAS,
Appellee _________________________________
FROM THE 47TH DISTRICT COURT OF POTTER COUNTY;
NO. 42,646-A; HON. DAVID L. GLEASON, PRESIDING _______________________________ On Motion for Rehearing _______________________________
Before JOHNSON, C.J., QUINN, J. and BOYD, S.J. (1)
Pending before the court is the rather colorful motion by the State of Texas for rehearing. (2) Though numerous complaints are raised against the court's opinion of April 16, 2003, we mention several. (3) So too do we overrule the motion.
Background
The status of the case before us is as follows. Jody Lewis Fortier appealed from a final judgment adjudicating his guilt for the offense of burglary. We dismissed the cause for want of jurisdiction. Our reading of the issues presented indicated that they concerned the voluntariness of the original plea. And, because that topic was not raised via an appeal immediately after the initial plea hearing, authority prohibited us from considering them via appeal after appellant's guilt was adjudicated. Nix v. State, 65 S.W.3d 664 (Tex. Crim. App. 2001); Manuel v. State, 994 S.W.2d 658 (Tex. Crim. App. 1999). Thereafter, appellant moved for rehearing, asserting that the sentence levied after guilt was adjudicated was void. It was purportedly so because the trial court enhanced his punishment through the use of a prior conviction for a state jail felony. We ordered the State to respond to the motion, which it did. Its response, however, focused primarily upon the issue of jurisdiction to entertain the appeal and the authority of the trial court to initially grant appellant community supervision. Little to nothing was said about the legality of the sentence ultimately levied by the trial court after guilt was adjudicated. Upon considering the arguments of all counsel, we granted the motion for rehearing in part, reversed that portion of the judgment levying sentence and punishment, and remanded the cause for a new punishment hearing. (4) Upon our doing so, the State then moved for rehearing. It is that motion which we now consider.
Ground One
First, the State asserts that we improperly considered "unassigned error." The error consisted of our determining whether the trial court could enhance appellant's punishment through the use of a prior conviction for a state jail felony. This particular issue was addressed by the State in its initial appellee's brief. To the extent that the State addressed the topic in that brief, the issue could not logically be "unassigned error."
Ground Two
Next, the State asserts that an adjudication that a minor engaged in delinquent conduct constituting a felony (even though the felony was a state jail felony) may, in some circumstances, be used to enhance punishment. It further cites §12.42(f) of the Texas Penal Code as support for its proposition. We disagree with the assertion.
According to §12.42(f) of the Penal Code,
[f]or purposes of Subsections (a)-(c) and (e), an adjudication by a juvenile court under Section 54.03, Family Code, that a child engaged in delinquent conduct constituting a felony offense for which the child is committed to the
Texas Youth Commission under Section 54.04(d)(2), (d)(3), or (m), Family
Code, or Section 54.05(f), Family Code, is a final felony conviction.
As can be seen from the statute, an adjudication that a youth engaged in felonious conduct resulting in his commitment to the Youth Commission is deemed a "final felony conviction." Yet, effort to consider the "final felony conviction" for enhancement purposes must be done in conjunction with the requirements of subsections (a) through (c) and (e) of §12.42. Indeed, the legislature intended as much when it began §12.42(f) with the phrase "[f]or purposes of Subsections (a)-(c) and (e)." In other words, and regardless of the conduct for which the youth had been adjudicated under §54.03 of the Family Code, consideration of the adjudication for enhancement purposes must still comport with various subsections of §12.42, and, one of those subsections was and is that which prohibits the use of a state jail felony for purposes of an enhancement, i.e. §12.42(e). (5)
Interpreting the statute otherwise would lead to an end more onerous for youths than adults. If the State were correct, then in those situations where the accused was an adult when the state jail felony occurred, the latter could not be used for enhancement purposes. However, if the identical state jail felony were committed when the accused was a minor, then it could be used. That is a non-sensical result. Weightman v. State, 975 S.W.2d 621, 623-24 (Tex. Crim. App. 1998) (recognizing that the absurdity of the result is a factor to consider when interpreting a statute). We opt not to impute to the legislature an intent to punish children more harshly than adults.
Finally, the record discloses that the felonious conduct for which appellant was adjudicated a delinquent involved the unauthorized use of a motor vehicle. Statute categorizes that offense as a state jail felony. Tex. Penal Code Ann. 31.07(b) (Vernon 2003). Thus, §12.42(e) of the Penal Code barred the trial court from using it to enhance appellant's punishment.
Ground Three
The State next contends that we should have been more specific in directing it to the arguments "that ultimately mattered." If we had, it "could have briefed the matters that directly concerned the court in its response as opposed to directly responding to appellant's motion for rehearing." We ordered the State to respond to appellant's motion to facilitate our resolution of the dispute. It is not our duty to tell it how to respond or what arguments to proffer in attempt to defeat the motion. To do otherwise would be to deviate from the path of neutrality which we must follow. Plummer v. Reeves, 93 S.W.3d 930, 931 (Tex. App.-Amarillo 2003, pet. denied) (stating that the court must remain neutral and unbiased).
Ground Four
Lastly, we are told that we applied the wrong harm analysis. According to the State, "the appropriate standard is to disregard error as harmless unless substantial rights were affected. Tex. R. App. P. 44.2(b)." That is, "[i]f the court finds the error did have more than a slight influence on the verdict, it must be concluded the error affected the defendant's substantial rights . . . ." (6)
In our April 16th opinion, we expressly mentioned Rule 44.2(b) of the appellate rules of procedure in effort to determine whether any of appellant's substantial rights were affected. So too did we assess harm by focusing upon the quantum of impact, if any, which the error had on the trial court's decision. This endeavor comported with that mandated in Johnson v. State, 43 S.W.3d 1 (Tex. Crim. App. 2001). Therein, the Court of Criminal Appeals uttered that a "substantial right is affected when the error had a substantial and injurious effect or influence in determining" the outcome of the proceeding. Id. at 4. To the extent we 1) ultimately said that "we are not convinced that the error did not have a substantial and injurious effect or influence on the outcome" and 2) cited to Fite v. State, 60 S.W.3d 314 (Tex. App.-Houston [14th Dist.] 2001, pet. ref'd) wherein like error was deemed harmful under Johnson and Rule 44.2(b), we utilized the exact harm analysis that the State now urges us to apply. (Emphasis added).
In sum, none of the State's contentions in its motion for rehearing have merit; so we overrule them. (7)
Brian Quinn
Justice
Publish only Ground Two.
1. John T. Boyd, Chief Justice (Ret.), Seventh Court of Appeals, sitting by assignment. Tex. Gov't
Code Ann. §75.002(a)(1) (Vernon Supp. 2003).
2. 3. 4. 5. 6. 7.