Affirmed in Part, Reversed and Remanded in Part, and Majority and Concurring Opinions filed February 27, 2003.
In The
Fourteenth Court of Appeals
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NOS. 14-01-01015-CR &
14-01-01017-CR
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DAVID GLENN NOLAN, Appellant
V.
THE STATE OF TEXAS, Appellee
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On Appeal from the 183rd District Court
Harris County, Texas
Trial Court Cause Nos. 863,156 and 862,772
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C O N C U R R I N G O P I N I O N
I concur in the majority’s resolution of appellant’s ex post facto issue.
In 1986 when appellant completed deferred adjudication for aggravated sexual assault of a child, and was discharged by the trial court, the law provided that such discharge could not be deemed a conviction. See Act of May 7, 1975, 64th Leg., R.S., ch. 231, § 1, sec. 3d(c), 1975 Tex. Gen. Laws 572, 573 (subsequently amended, current version at Tex. Code Crim. Proc. art. 42.12, § 5(c) (Vernon Supp. 2003)). But in 2001 that discharge was, under Penal Code section 12.42(g)(1), deemed a conviction for purposes of enhancement of his punishment to life imprisonment. See Tex. Pen. Code Ann. § 12.42(c)(2), (g)(1) (Vernon 2003). Because section 12.42(g)(1) quantitatively increased the punishment above that permitted for successful completion of deferred adjudication at the time appellant pleaded guilty and received deferred adjudication, that law violates the ban on ex post facto lawmaking in Article I, section 10 of the United States Constitution.
Although the Latin phrase “ex post facto” literally encompasses any law passed “after the fact,” it has long been recognized by the United States Supreme Court that the constitutional prohibition on ex post facto laws applies only to penal statutes which disadvantage the offender affected by them. Collins v. Youngblood, 497 U.S. 37, 41, 110 S. Ct. 2715, 2718 (1990). To fall within the ex post facto prohibition, a law must be retrospective–that is, it must apply to events occurring before its enactment–and it must disadvantage the offender affected by it, by altering the definition of criminal conduct or increasing the punishment for the crime. Lynce v. Mathis, 519 U.S. 433, 441, 117 S. Ct. 891, 896 (1997).
There are four categories of ex post facto laws. First, every law that makes an action done before the passing of the law and which was innocent when done, criminal, and punishes such action. Second, every law that aggravates a crime, or makes it greater than it was, when committed. Third, every law that changes the punishment, and inflicts a greater punishment, than the law annexed to the crime, when committed. Fourth, every law that alters the legal rules of evidence, and receives less, or different testimony, than the law required at the time of the commission of the offence, in order to convict the offender. Lynce, 519 U.S. at 441 n.13, 117 S. Ct. at 895 n.13. The statute at issue here falls within the third of the four categories listed.
Whether a particular law retroactively increases a criminal punishment is often a close question. Lynce, 519 U.S. at 450, 117 S. Ct. at 900 (Thomas J., concurring). Here, however, the retrospective aspect of section 12.42(g)(1) is manifest. The trial court deferred adjudication of appellant’s offense based on his plea of guilty, and placed appellant on community supervision. Appellant successfully completed his community supervision and was discharged. At the time of his discharge, former Code of Criminal Procedure article 42.12, section 3d(c) specifically provided that dismissal and discharge would not be deemed a conviction. See Act of May 7, 1975, 64th Leg., R.S., ch. 231, § 1, sec. 3d(c), 1975 Tex. Gen. Laws 572, 573 (subsequently amended, current version at Tex. Code Crim. Proc. art. 42.12, § 5(c) (Vernon Supp. 2003)); see also Scott v. State, 55 S.W.3d 593, 595 (Tex. Crim. App. 2001) (quoting Tex. Code Crim. Proc. Ann. Art. 42.12, § (5)(c) (1990)). Certain exceptions were listed, but none involved the use of a deferred adjudication to enhance a subsequent offense. See Scott, 55 S.W.3d at 595. Appellant was entitled to rely on that restriction on the use of his offense. Id at 597.
But the Legislature had other ideas. In 1997 and 1999, the Legislature amended Penal Code section 12.42 to include a provision that made a deferred adjudication count as a conviction. See Act of May 31, 1997, 75th Leg., R.S., ch. 667, § 4, 1997 Tex. Gen. Laws 2250, 2252, amended by Act of April 23, 1999, 76th Leg., R.S., ch. 62, § 15.01, 1999 Tex. Gen. Laws 127, 357 (current version at Tex. Pen. Code Ann. § 12.42(g)(1) (Vernon 2003)).[1] Through the language in subsection (g)(1), a defendant is deemed to have been previously convicted of the offenses enhancing the punishment to life in section 12.42(c)(2) if the defendant entered a plea of guilty in return for a grant of deferred adjudication, regardless of whether the sentence was probated and the defendant was subsequently discharged from community supervision. Tex. Pen. Code Ann. § 12.42(g)(1) (Vernon 2003). Thus, appellant’s lack of a conviction based on his completion of community supervision was retroactively converted into a conviction by section 12.42(g)(1).
When the Legislature increases punishment by the removal of a statutory restriction, that increase violates the ban on ex post facto laws. Scott, 55 S.W.2d at 598. Because section 12.42(g)(1) increased appellant’s punishment by removing a restriction on the use of his 1984 offense, it is an ex post facto law. Accordingly, I concur with the majority that appellant is entitled to a new punishment hearing without the pernicious effects of section 12.42(g)(1).
/s/ John S. Anderson
Justice
Judgment rendered and Majority and Concurring Opinions filed February 27, 2003.
Panel consists of Justices Yates, Anderson, and Frost.
Publish — Tex. R. App. P. 47.2(b).
[1] In 1997, the Legislature added the definitional language in what is now Penal Code section 12.42(g), but erroneously referenced that section to Penal Code section “(d)(2),” rather than (c)(2). See Act of May 31, 1997, 75th Leg., R.S., ch. 667, § 4, 1997 Tex. Gen. Laws 2250, 2252. The legislature corrected the error in 1999, so that the definitional section referenced the section mandating life imprisonment for certain repeat offenders. See Act of April 23, 1999, 76th Leg., R.S., ch. 62, § 15.01, 1999 Tex. Gen. Laws 127, 357.