Roemer, Ex Parte Randall Lee

IN THE COURT OF CRIMINAL APPEALS

OF TEXAS

NO. AP-75,104

EX PARTE RANDALL LEE ROEMER, Applicant

ON APPLICATION FOR A WRIT OF HABEAS CORPUS

IN CAUSE NO. 03-396-K368

FROM THE 368th DISTRICT COURT OF WILLIAMSON COUNTY

Keasler, J., filed this concurring opinion in which Hervey, J., joined.

Randall Lee Roemer pled guilty to driving while intoxicated in exchange for a four-year sentence recommendation. Roemer now claims that his counsel was ineffective for stipulating to an alleged improper enhancement conviction and that his sentence was illegal. I join the Court's opinion but write separately to explain why our precedent supports the finding that counsel was effective and why the result under the plain language of the statute is troublesome.

Facts and Procedural History

Roemer was charged with driving while intoxicated ("DWI") on May 8, 2003.⁽¹⁾ The indictment alleged that he used or exhibited a deadly weapon during the commission of the primary offense. It also contained a jurisdictional enhancement paragraph alleging that Roemer had a 1990 conviction for "intoxication" manslaughter. Under Section 49.09(b)(1) of the Texas Penal Code, an intoxication manslaughter conviction elevated Roemer's primary offense from a Class A misdemeanor to a third-degree felony with a punishment range of two to ten years' imprisonment and a fine not to exceed $10,000.⁽²⁾ Section 49.09(b) states in pertinent part:

(b) An offense under Section 49.04, 49.05, 49.06, or 49.065 is a felony of the third degree if it is shown on the trial of the offense that the person has previously been convicted:

(1) one time of an offense under Section 49.08 [intoxication manslaughter] or an offense under the laws of another state if the offense contains elements that are substantially similar to the elements of an offense under Section 49.08; or

(2) two times of any other offense relating to the operating of a motor vehicle while intoxicated, operating an aircraft while intoxicated, operating a watercraft while intoxicated, or operating or assembling an amusement ride while intoxicated.⁽³⁾

The State later amended the indictment to reflect that Roemer had been convicted of "involuntary" manslaughter under former Section 19.05(a)(2) of the Penal Code, not "intoxication" manslaughter under Section 49.08.⁽⁴⁾

At the time of Roemer's 1990 involuntary manslaughter conviction, there was no offense called "intoxication" manslaughter. Rather, Section 19.05(a) provided that involuntary manslaughter could be committed in one of two ways: (1) by "recklessly caus[ing] the death of an individual"; or (2) "by accident or mistake when operating a motor vehicle, airplane, helicopter, or boat while intoxicated and, by reason of such intoxication, caus[ing] the death of an individual."⁽⁵⁾ Following legislation that took effect in 1994, the second way (under which Roemer had been convicted in 1990) is now known as "intoxication" manslaughter under Section 49.08 of the Penal Code.⁽⁶⁾ "Before September 1, 1994, manslaughter and intoxication manslaughter were merely alternate methods of committing the offense of involuntary manslaughter under former § 19.05."⁽⁷⁾

Because Section 49.09(b)(1) did not specifically authorize enhancement by using an involuntary manslaughter conviction under 19.05(a)(2), Roemer's counsel researched whether the enhancement was proper. At that time, we had not rendered an opinion on the matter. But Roemer's counsel "review[ed] related case and statutory law . . . and concluded that the use of the involuntary manslaughter conviction to increase the status of Mr. Roemer's DWI offense to a felony was legitimate." Counsel "based [his] conclusion largely on [his] reading of an unpublished opinion from the 1st Court of Appeals, Louviere v. State[,]" which held that the trial court's use of an involuntary manslaughter conviction to enhance an offense was not error.⁽⁸⁾

Roemer's counsel "explained the results of [his] research and [his] conclusions to Mr. Roemer . . . [who then] asked [counsel] to negotiate a plea agreement with the District Attorney's Office to dispose of his case." Counsel "negotiated a punishment recommendation from the State of 5 years in prison in exchange for a guilty plea by Mr. Roemer to the felony offense of driving while intoxicated. The State also agreed to waive the deadly weapon allegation . . . ." On the day of trial, Roemer's counsel negotiated an even more lenient four-year sentence. After consulting with his counsel, Roemer pled guilty to felony DWI. The trial judge accepted Roemer's plea, found him guilty, and sentenced him to four years' imprisonment pursuant to the plea agreement.

Roemer filed this application for a writ of habeas corpus claiming that his counsel was ineffective for stipulating to the validity of his prior conviction for enhancement and that he received an illegal sentence. The trial judge filed findings of fact and conclusions of law, which included the following:

At his guilty plea hearing, Roemer told the trial judge that he was satisfied with his attorney and that his attorney had represented him adequately and advised him fully as to the law and facts of his case.

Roemer's attorney extensively researched whether the State could increase Roemer's DWI charge to a felony based on his prior involuntary manslaughter conviction.

Roemer's attorney explained to him that the State's use of the prior conviction was legitimate but that Roemer could challenge that use by pleading not guilty and by appealing any resulting conviction.

When he pled guilty to felony DWI, Roemer was aware of the legal issue concerning the use of his involuntary manslaughter conviction to elevate his DWI offense to a felony and was aware that he could challenge the use of his prior conviction at trial and on appeal.

Roemer knowingly and voluntarily chose to waive that issue, and all other legal and factual issues associated with his case, by pleading guilty to felony DWI and accepting a negotiated punishment.

Roemer's attorney was not deficient in his representation of Roemer.

I. Ineffective Assistance of Counsel

"To obtain habeas corpus relief for ineffective assistance of counsel under Strickland v. Washington,⁽⁹⁾ an applicant must show that his counsel's performance was deficient and that there is a 'reasonable probability'--one sufficient to undermine confidence in the result--that the outcome would have been different but for his counsel's deficient performance."⁽¹⁰⁾ Roemer argues that "his counsel's performance was deficient in his first stipulating to the wrong prior intoxication conviction, and in not challenging the imposition of a felony sentence after it was clear that the State did not have, and could not have sufficient proof to convict [Roemer] of a felony." In response, the State contends that his "representation . . . was not deficient under an objective standard of reasonableness" because Roemer's counsel identified and researched the legal issue in the State's indictment, found case law supporting the use of Roemer's 1990 conviction for enhancement, explained those findings and his opinion to Roemer, and then left the decision of whether to dispute the use of that conviction or enter a plea agreement to his client. In fact, the State argues, Roemer's attorney "could have done nothing more than he did other than force [Roemer] to litigate the legal issue presented by the State's indictment."

An appellate court gives "almost total deference to a trial judge's determination of the historical facts supported by the record, especially when those fact findings are based on an evaluation of credibility and demeanor."⁽¹¹⁾ The trial judge in this case found that "[a]t the time he pleaded guilty to the felony offense of driving while intoxicated, [Roemer] was aware of the legal issue concerning the use of his prior conviction for involuntary manslaughter to elevate his DWI offense to a felony." The judge also found that Roemer was aware he could challenge the use of his prior conviction using trial and appeal procedures. Because the record supports them, these findings receive great deference.⁽¹²⁾

In Ex parte Chandler, we explained that "a reasonably prudent attorney in Texas is not constitutionally deficient if he relies upon pertinent judicial opinions in assessing the validity of a legal proposition."⁽¹³⁾ Moreover, because "'what an attorney thinks the law is today may not be what a court decides tomorrow[,]' . . . 'the rule that an attorney is not liable for an error in judgment on an unsettled proposition of law is universally recognized.'"⁽¹⁴⁾ "[C]ounsel's performance will be measured against the state of the law in effect during the time of trial and we will not find counsel ineffective where the claimed error is based upon unsettled law."⁽¹⁵⁾ We also stated that "legal advice which only later proves to be incorrect does not normally fall below the objective standard of reasonableness under Strickland."⁽¹⁶⁾

Roemer's counsel's legal advice was correct at the time he offered it. Counsel relied on the only available opinion dealing with the issue. "[T]he state of the law in effect during the time of trial"⁽¹⁷⁾ consisted of a single opinion, which clearly resolved the issue against his client. Counsel thoroughly explained the legal issue and the effect of the court of appeals's opinion to his client. But the final decision to accept the plea agreement was Roemer's alone. It could not, therefore, be counsel's judgment error. Roemer's counsel's actions fall squarely within our explanation of effective assistance of counsel in Ex parte Chandler.

Moreover, "the only required duty of counsel under the most liberal construction when a plea of guilty is entered is that counsel should ascertain if the plea is entered voluntarily and knowingly."⁽¹⁸⁾ Roemer's counsel fulfilled that duty in this case. Because Roemer cannot satisfy Strickland's first prong, an evaluation of the second prong is unnecessary.

II. Illegal Sentence

Today the majority decides that Roemer's sentence is illegal "because [Roemer] has only one prior conviction for an offense relating to the operating of a motor vehicle while intoxicated [(involuntary manslaughter under former Penal Code Section 19.05(a)(2))] and does not have even a single conviction for intoxication manslaughter."⁽¹⁹⁾ Because Roemer's prior conviction for involuntary manslaughter is substantially similar to the current offense of intoxication manslaughter, but the statute treats the two offenses differently, I write separately to point out this inconsistency.

Section 49.09 of the Texas Penal Code governs enhancement of intoxication-related offenses and provides in pertinent part:

(b) An offense under Section 49.04 [(Driving While Intoxicated)], 49.05 [(Flying While Intoxicated)], 49.06 [(Boating While Intoxicated)], or 49.065 [(Assembling or Operating an Amusement Park Ride While Intoxicated)] is a felony of the third degree if it is shown on the trial of the offense that the person has previously been convicted:

(1) one time of an offense under Section 49.08 [(Intoxication Manslaughter)] or an offense under the laws of another state if the offense contains elements that are substantially similar to the elements of an offense under Section 49.08; or

(1) "Offense relating to the operating of a motor vehicle while intoxicated" means:

(A) an offense under Section 49.04 [(Driving While Intoxicated)] or 49.045 [(Driving While Intoxicated With Child Passenger)];

(B) an offense under Section 49.07 [(Intoxication Assault)] or 49.08 [(Intoxication Manslaughter)], if the vehicle operated was a motor vehicle;

(C) an offense under Article 6701l-1, Revised Statutes [(Driving While Intoxicated)], as that law existed before September 1, 1994;

(D) an offense under Article 6701l-2, Revised Statutes [(Driving While Intoxicated)], as that law existed before January 1, 1984;

(E) an offense under Section 19.05(a)(2) [(Involuntary Manslaughter)], as that law existed before September 1, 1994, if the vehicle operated was a motor vehicle; or

(F) an offense under the laws of another state that prohibit the operation of a motor vehicle while intoxicated.⁽²⁰⁾

"Where the statute is clear and unambiguous, the Legislature must be understood to mean what it has expressed, and it is not for the courts to add or subtract from such a statute."⁽²¹⁾ If a statute's meaning "should have been plain to the legislators who voted on it, we ordinarily give effect to that plain meaning."⁽²²⁾ Because Section 49.09 explicitly refers to former Section 19.05(a)(2), its plain language prevents us from considering extratextual factors. But when Section 49.09 is evaluated in its entirety, the results are incongruous. The following hypothetical cases illustrate the inconsistency.

Defendant #1: Convicted in Texas of Involuntary Manslaughter under former Texas Penal Code Section 19.05(a)(2) on August 31, 1994, and currently on trial for the offense of Driving While Intoxicated under Texas Penal Code Section 49.04 committed on February 1, 2003. Under the majority's opinion, the current DWI offense may not be enhanced to a third-degree felony under Texas Penal Code Section 49.09(b)(1). It may only serve as one of two necessary predicate convictions under Section 49.09(b)(2) and 49.09(c)(1)(E) to enhance the current DWI offense to a third-degree felony.

Defendant #2: Convicted in Texas of Intoxication Manslaughter under Texas Penal Code Section 49.08 on September 1, 1994, and currently on trial for the offense of Driving While Intoxicated under Texas Penal Code Section 49.04 committed on February 1, 2003. The current DWI offense may be enhanced to a third-degree felony under Texas Penal Code Section 49.09(b)(1).

Defendant #3: Convicted in another state of an offense with similar elements to Intoxication Manslaughter under Texas Penal Code Section 49.08 on August 31, 1994, and currently on trial for the offense of Driving While Intoxicated under Texas Penal Code Section 49.04 committed on February 1, 2003. The current DWI offense may be enhanced to a third-degree felony under Texas Penal Code Section 49.09(b)(1).

Defendant #4: Convicted in another state of an offense with similar elements to Intoxication Manslaughter under Texas Penal Code Section 49.08 on September 1, 1994, and currently on trial for the offense of Driving While Intoxicated under Texas Penal Code Section 49.04 committed on February 1, 2003. The current DWI offense may be enhanced to a third-degree felony under Texas Penal Code Section 49.09(b)(1).

Consequently, under a plain reading of the statute and the majority's decision, only a defendant convicted of involuntary manslaughter under former Section 19.05(a)(2) escapes felony-level punishment without an additional conviction as required by Section 49.09(b)(2). As the hypothetical cases show, Section 49.09 poses a similar inconsistency to the statute we examined in Ex parte Ervin.⁽²³⁾ There, we considered "whether Government Code Section 508.149(a) [could] be read to include former Penal Code Section 21.09."⁽²⁴⁾ We noted that the language of Section 508.149(a) did "not include former statutes such as sexual abuse of a child, rape of a child, rape, or aggravated rape" and that there was "no explicit catch-all provision that would include all prior versions of the offenses listed in Section 508.149."⁽²⁵⁾ Nevertheless, we explained that

If we were to apply the literal meaning of the words in Section 508.149, conduct committed on the day before the effective date of the repealed sexual offense statutes would make an inmate eligible for mandatory supervision release. But, the same conduct committed just a day later would render the inmate ineligible for mandatory supervision release. It sometimes happens that defendants are sentenced to more or less severe punishment for the same conduct based on the date on which the offense is committed. But in this context, we cannot believe that the legislature intended to produce these results.⁽²⁶⁾

Similar to the result in Ex parte Ervin, Defendant #1's previous conviction for involuntary manslaughter under Section 19.05(a)(2) on August 31, 1994, would not enhance his current DWI offense to a third-degree felony without another conviction for an "offense relating to the operating of a motor vehicle while intoxicated."⁽²⁷⁾ But if Defendant #1 had been convicted one day later (September 1, 1994) of intoxication manslaughter under Section 49.08 (the statutory successor to former Section 19.05(a)(2)), his current DWI offense would be enhanced by that single conviction, just as Defendant #2. Moreover, Defendant #1's current DWI offense would be enhanced by a single previous conviction on August 31, 1994, in another state of an offense with substantially similar elements, just as Defendant #3. And if Defendant #1 had been convicted the next day (September 1, 1994) of an offense with substantially similar elements in another state, the current DWI offense would also be enhanced by that one previous conviction, just as Defendant #4.

The inconsistencies illustrated by these hypothetical cases demonstrate that Section 49.09 gives preferential treatment to defendants with involuntary manslaughter convictions under former Section 19.05(a)(2) by requiring an additional prior conviction under Section 49.09(b)(2). The current DWI offenses for Defendants #2 through #4, however, are all subject to enhancement using only one conviction for substantially the same previous conviction as Defendant #1. Because Section 49.09's language is not ambiguous and explicitly addresses Section 19.05(a)(2), I cannot say that the Legislature did not intend the result or that there are two reasonable, yet different, interpretations of Section 49.09.⁽²⁸⁾ But bias in favor of offenders such as Defendant #1 is a consequence of a plain reading of the statute.

Additionally, Section 49.09(c)(1)(B) explicitly includes intoxication manslaughter as an "offense relating to the operating of a motor vehicle while intoxicated."⁽²⁹⁾ That conviction may therefore serve as one of the two required predicate convictions to enhance a defendant's current DWI offense to a third-degree felony under Section 49.09(b)(2).⁽³⁰⁾ But under Section 49.09(b)(1), only one prior conviction for intoxication manslaughter is necessary to enhance the current DWI offense to a third-degree felony. Section 49.09(c)(1)(B) appears to be superfluous because only one prior conviction for intoxication manslaughter is required for enhancement to a third-degree felony under Section 49.09(b)(1), yet the same offense may serve as one of the two prior convictions required by Section 49.09(b)(2). If one prior conviction for intoxication manslaughter is sufficient to enhance a DWI offense to a third-degree felony under Section 49.09(b)(1), then it seems unnecessary to have it serve as one of two offenses under Section 49.09(b)(2).

Although the statute is incongruous and appears to distinguish convictions solely by date of offense, established principles of statutory construction and separation of powers prevent this Court from "legislating from the bench" to correct a perceived inconsistency in a statute.

The dissent maintains that our decision in Griffith v. State⁽³¹⁾ is controlling and criticizes the majority for failing to acknowledge and follow this unanimous precedent. The dissent should not be so quick to conclude that "[a] strict literal reading of section 49.09 . . . would lead to exactly the absurd results that this Court unanimously rejected in Griffith"⁽³²⁾ without acknowledging the entire text of the statute. The dissent's interpretation actually expands, rather than follows, Griffith. In Griffith, we considered "whether Penal Code Section 12.42(c)(2)(B) includes the statutory predecessors to the offenses enumerated therein."⁽³³⁾ We determined that the statutory predecessors were included in the offenses enumerated in the statute.⁽³⁴⁾ We reached the same result in Ex parte Ervin, finding that Section 508.149(a) of the Government Code included the statutory predecessor offenses.⁽³⁵⁾ But the logic used by the Court in Griffith and Ex parte Ervin does not apply to the statute at issue in this case. The text of the statutes in Griffith and Ex parte Ervin did not refer to the predecessor offenses.⁽³⁶⁾ Here, the predecessor offense is specifically enumerated in another part of the statute as an "offense relating to the operating of a motor vehicle while intoxicated,"⁽³⁷⁾ which may only serve as one of two previous convictions required by Section 49.09(b)(2).⁽³⁸⁾

Although the results under the DWI enhancement statute are inconsistent, our reasoning in Griffith and Ex parte Ervin does not apply here. For the statute here to be analogous to those in Griffith and Ex parte Ervin, we would have to subtract Section 49.09(c)(1)(B) from the statute, which expressly refers to the statutory predecessor offense. Deleting part of a statute is not within the province of this Court.⁽³⁹⁾ If Section 49.09 did not explicitly name former Section 19.05(a)(2), then this case might have been on equal footing with Griffith and Ex parte Ervin, where the statutes were silent about predecessor offenses in their entirety. Because the Legislature explicitly included the predecessor offense in this statute, I cannot agree that our decisions in Griffith and Ex parte Ervin control. But I would urge the Legislature to take a close look at the results under a plain reading of Section 49.09 when considering the use of former Section 19.05(a)(2) for enhancement purposes.

With these comments, I join the Court's opinion.

DATE DELIVERED: February 28, 2007

PUBLISH

1. Tex. Pen. Code Ann. § 49.04 (Vernon 2001).

2. Tex. Pen. Code Ann. § 49.09(b)(1) (Vernon 2005).

Tex. Pen. Code Ann. § 49.09(b).

4. Id.

5. Act of May 29, 1987, 70th Leg., R.S., ch. 307, § 1, 1987 Tex. Gen. Laws 1698, 1698, amended by Act of May 29, 1993, 73rd Leg., R.S., ch. 900, § 1.01, 1993 Tex. Gen. Laws 3586, 3614, 3766.

6. See Tex. Pen. Code Ann. § 49.08(a) (Vernon 2003).

7. Ex parte Ervin, 991 S.W.2d 804, 815 (Tex. Crim. App. 1999).

8. Louviere v. State, No. 01-02-00594-CR (Tex. App.--Houston [1st Dist.] Feb. 20, 2003, no pet.).

9. 466 U.S. 668 (1984).

10. Ex parte Chandler, 182 S.W.3d 350, 353-54 (Tex. Crim. App. 2005) (quoting Strickland, 466 U.S. at 694; citing Ex parte White, 160 S.W.3d 46, 49 (Tex. Crim. App. 2004)).

11. Ex parte Briseno, 135 S.W.3d 1, 12-13 (Tex. Crim. App. 2004).

12. Id.

13. Ex parte Chandler, 182 S.W.3d at 358.

14. Id. (quoting 3 Ronald E. Mallen & Jeffrey M. Smith, Legal Malpractice § 18.1, at 2 (5th ed. 2000)).

15. Ex parte Welch, 981 S.W.2d 183, 184 (Tex. Crim. App. 1998) (citing Vaughn v. State, 931 S.W.2d 564, 567 (Tex. Crim. App. 1996)).

16. Ex parte Chandler, 182 S.W.3d at 359.

17. Ex parte Welch, 981 S.W.2d at 184.

18. Butler v. State, 499 S.W.2d 136, 139 (Tex. Crim. App. 1991) (citing Lamb v. Beto, 423 F.2d 85, 87 (5th Cir. 1970); Gotcher v. Beto, 444 F.2d 696 (5th Cir. 1971)).

19. Ante, slip op. at 4.

20. Tex. Penal Code Ann. § 49.09.

21. Ex parte Davis, 412 S.W.2d 46, 52 (Tex. Crim. App. 1967).

22. Boykin v. State, 818 S.W.2d 782, 785 (Tex. Crim. App. 1991).

23. Ex parte Ervin, 187 S.W.3d 386, 388 (Tex. Crim. App. 2005).

24. Id. (emphasis in original).

25. Id. (emphasis in original).

26. Id.

27. Tex. Penal Code Ann. § 49.09(b)(2).

28. See Ex parte Spann, 132 S.W.3d 390, 393 (Tex. Crim. App. 2004); Muniz v. State, 851 S.W.2d 238, 244 (Tex. Crim. App. 1993).

29. Tex. Penal Code Ann. § 49.09(c)(1)(B).

30. Id. § 49.09(b)(2).

31. 116 S.W.3d 782 (Tex. Crim. App. 2003).

32. Post, slip op. at 3.

33. Griffith, 116 S.W.3d at 784.

34. Id.

35. Ex parte Ervin, 187 S.W.3d at 388.

36. Id.; Griffith, 116 S.W.3d at 786.

37. Tex. Penal Code Ann. § 49.09(c)(1)(B).

38. Id. § 49.09(b)(2).

39. Ex parte Davis, 412 S.W.2d at 52.

Roemer, Ex Parte Randall Lee

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