Hill, Michael Charles

IN THE COURT OF CRIMINAL APPEALS
OF TEXAS

NO. WR-83,074-04 & WR-83,074-05

EX PARTE MICHAEL CHARLES HILL, Applicant

ON APPLICATIONS FOR A WRIT OF HABEAS CORPUS
CAUSE NOS. WR-10155 & WR-10156 IN THE 196TH DISTRICT COURT
HUNT COUNTY

YEARY, J., filed a concurring and dissenting opinion in which SLAUGHTER, J.
joined.
CONCURRING AND DISSENTING OPINION

Instead of upholding a validly assessed sentence, the Court grants Applicant post-

conviction habeas corpus relief in his sexual-assault-of-a-child conviction based on a claim

of improper sentence enhancement. But, at the time that Applicant’s sentence was

enhanced in 2012, and for the three years following the appellate court’s mandate, which
 HILL — 2

finalized his appeal, 1 there was nothing wrong with that enhancement. The sentence did

not come into question until 2018, when this Court vacated the underlying felony

conviction for aggravated sexual assault because of an involuntary guilty plea.

At the time that Applicant committed the current offense of sexual assault of a child,

the enhancement statute was clear that a previous conviction for certain enumerated

crimes—including aggravated sexual assault—could be used to enhance a subsequent

sexual assault conviction to an automatic life sentence. With this statute on the books,

Applicant nevertheless chose to commit sexual assault of a child, presumably aware of the

repercussions of a guilty verdict. The Court’s decision today leaves open the possibility

that a defendant can challenge a sentence fifty years down the road, after all witnesses have

passed away and no one remains from the original trial, solely because the underlying

felony is later, on whatever basis, invalidated. This undermines the idea that there can ever

truly be a “final conviction” in a case where a sentence has been enhanced by proof of a

prior conviction. I dissent to granting relief in Applicant’s sexual-assault-of-a-child case.

I. FACTS AND PROCEDURAL POSTURE

In 2000, after pleading guilty, Applicant was convicted of aggravated sexual assault

of a child, and he was sentenced to confinement for five years. He never perfected an appeal

in that case. In 2007, Applicant committed the offense of indecency with a child. One year

later, in 2008, he also committed the offense of sexual assault of a child. In 2012, the State

1
See Beal v. State, 91 S.W.3d 794, 795 (Tex. Crim. App. 2002) (holding that a conviction
becomes final for enhancement purposes “when the appellate court issues its mandate affirming
the conviction”).
 HILL — 3

proceeded to trial of those offenses pursuant to separate indictments. A jury found

Applicant guilty of both sexual assault of a child and indecency with a child—both second

degree felonies—which are the subject of these writ applications.

At the punishment phase, the State presented evidence of Applicant’s previous

conviction of aggravated sexual assault from 2000, to enhance both offenses. The jury was

instructed that, if it should find that Applicant was in fact convicted of that prior offense,

it must assess an automatic life sentence for the sexual assault conviction, pursuant to Texas

Penal Code Section 12.42(c)(2). TEX. PENAL CODE § 12.42(c)(2). As for the indecency

conviction, Applicant’s sentence was enhanced to a first-degree felony based upon proof

of the same previous aggravated sexual assault conviction, under Section 12.42(b). TEX.

PENAL CODE § 12.42(b). The jury exercised its sentencing discretion to assess a life

sentence in that case as well. Applicant appealed both the sexual assault and the indecency

convictions. The Sixth Court of Appeals affirmed both convictions in 2013. Hill v. State,

Nos. 06-12-0094-CR & 06-12-0095-CR, 2013 WL 69248 & 2013 WL 69239 (Tex. App.—

Texarkana Jan. 8, 2013) (not designated for publication).

In 2018, Applicant challenged his 2000 aggravated sexual assault conviction in an

application for post-conviction writ of habeas corpus, arguing that his guilty plea had been

involuntary. This Court granted Applicant relief in that case and vacated that conviction.

Ex parte Hill, No. WR-83,074-03, 2018 WL 2327177 (Tex. Crim. App. May 23, 2018)

(not designated for publication). Applicant then filed the post-conviction applications for

writ of habeas corpus before the Court today, seeking relief based on illegal sentence

claims.
 HILL — 4

In June of 2019, this Court issued an order finding that Applicant’s life sentences

were illegal because of the use of an invalid prior conviction to enhance the punishment

ranges, and we remanded the cases to the convicting court, consistent with Ex parte

Parrott, 396 S.W.3d 531, 533 (Tex. Crim. App. 2013), to determine whether Applicant had

any other prior felony convictions that could have been used for enhancement purposes.

Ex parte Hill, Nos. WR-83,074-04 & WR-83,074-05, 2019 WL 2607173 (Tex. Crim. App.

June 26, 2019) (not designated for publication). When the cases returned to us, we ordered

the parties to submit additional briefing. Ex parte Hill, Nos. WR-83,074-04 & WR-83,074-

05, 2020 WL 587080 (Tex. Crim. App. Feb. 5, 2020) (not designated for publication).

Today, the Court grants Applicant a new punishment determination in his sexual-assault-

of-a-child case.

I dissent to granting such relief. In my view, Applicant’s automatic life sentence in

the sexual assault of a child case was justified because Section 12.42(c)(2) only requires

the State to prove that Applicant was previously convicted of one of the offenses listed in

12.42(c)(2)(B)(ii) in order to obtain an automatic life sentence—not that he actually

committed such an offense or that the conviction was forever unassailable. The prior

aggravated sexual assault conviction used to enhance the sentence for Applicant’s

subsequent sexual assault conviction was valid at the time it was used.

As for the jury’s discretionary assessment of a life sentence in the indecency case, I

agree with the Court’s bottom line today because the improper enhancement under Section

12.42(b) was harmless under Parrott since Applicant’s sentence could have been enhanced

in any event by virtue of the previous felony theft conviction. I also believe that any claim
 HILL — 5

that the jury’s discretion in assessing that life sentence was polluted because the jurors

heard evidence of Applicant’s now-invalidated prior aggravated sexual assault conviction

would be in the nature of an inadvertent-use-of-false-evidence claim, not an illegal-

sentence claim. Applicant has not made a claim that the punishment phase of his indecency

trial was tainted by the introduction of false evidence. And finally, I believe that, in any

event, both of Applicant’s claims should probably be barred by laches because he waited

so long before challenging the 2000 prior conviction that the State used, twelve years later,

to enhance the convictions he presently challenges.

II. SEXUAL ASSAULT OF A CHILD: AUTOMATIC LIFE SENTENCE

Applicant received an automatic life sentence for the sexual assault offense pursuant

to Section 12.42(c)(2). 2 Under that Section, the State may enhance certain sexual assault

2
Because Applicant committed the sexual assault of a child offense on August 22, 2008,
the controlling statute is the 2008 version of the Texas Penal Code. At that time, Section
12.42(c)(2) read:

Notwithstanding Subdivision (1) a defendant shall be punished by imprisonment in
the Texas Department of Criminal Justice for life if:

(A) the defendant is convicted of an offense:

(i) under Section 21.11(a)(1), 22.021 or 22.011, Penal Code;

(ii) under Section 20.04(a)(4), Penal Code, if the defendant
committed the offense with the intent to violate or abuse the victim
sexually; or

(iii) under Section 30.02, Penal Code, punishable under Subsection
(d) of that section, if the defendant committed the offense with the
intent to commit a felony described by Subparagraph (i) or (ii) or a
felony under Section 21.11, Penal Code; and

(B) the defendant has been previously convicted of an offense;
 HILL — 6

offenses to an automatic life sentence upon a showing that the defendant has previously

been convicted of an offense listed in Subsection 12.42(c)(2)(B)(ii). There is no question

that Applicant’s previous aggravated sexual assault conviction was final at the time that it

was used to enhance Applicant’s sexual assault and indecency convictions. 3 Applicant did

not appeal the aggravated sexual assault conviction, likely making the conviction final

when the judgment of conviction was signed by the trial court in 2000. 4 Thus, as of the

(i) under Section 43.25 or 43.26, Penal Code, or an offense under
Section 43.23, Penal Code, punishable under Subsection (h) of that
section,

(ii) under Section 21.02, 21.11, 22.011, 22.021, or 25.02, Penal
Code;

(iii) under Section 20.04(a)(4), Penal Code, if the defendant
committed the offense with the intent to violate or abuse the victim
sexually;

(iv) under Section 30.02, Penal Code, punishable under Subsection (d) of
that section, if the defendant committed the offense with the intent to
commit a felony described by Subparagraph (ii) or (iii); or

(v) under the laws of another state containing elements that are substantially
similar to the elements of an offense listed in Subparagraph (i), (ii), (iii), or
(iv).

TEXAS PENAL CODE § 12.42(c)(2).
3
I note that the Legislature has not required that the prior conviction be final before it may
be used to enhance under Section 12.42(c)(2). Elsewhere I have assailed the Court’s tendency to
read a finality requirement into such statutory provisions. Ex parte Westerman, 570 S.W.3d 731,
737–38 (Tex. Crim. App. 2019) (Yeary, J., dissenting) (“Nevertheless, this court has subsequently
read into Section 12.42(d) a requirement that the felony on trial must have been committed after
the second enhancing felony became final”) (citing Tomlin v. State, 722 S.W.2d 702, 705 (Tex.
Crim. App. 1987)). Even if the Court were to read a finality requirement into Section 12.42(c)(2),
it is undisputed by the parties that the aggravated sexual assault conviction was final at the time it
was used to enhance Applicant’s sexual assault and indecency convictions. Thus, the finality of
the aggravated sexual assault conviction is not at issue in this case.
4
There was no notice of appeal in the record of Applicant’s first conviction, and it is likely
true that Applicant’s conviction was thus final when he was sentenced in 2000. See Jones v. State,
 HILL — 7

time that Applicant committed the offenses, in 2007 and 2008, and as of the time he was

convicted for both, in 2012, the enhancement was valid because Applicant’s aggravated

sexual assault conviction had not yet been vacated. Indeed, the Court’s previous remand

order acknowledged that, “[a]t the time of trial, Applicant’s prior conviction was facially

valid[.]” Ex parte Hill, Nos. WR-83,074-04 & WR-83,074-05, 2019 WL 2607173, at *1.

Nevertheless, the Court today finds Applicant’s automatic life sentence to have been

“illegal”—thus, apparently invoking the principle that “illegal sentences” may be

challenged “at any time.” Id. (citing Ex parte Rich, 194 S.W.3d 508, 512 (Tex. Crim. App.

2006), which in turn cites Mizell v. State, 119 S.W.3d 804, 806 (Tex. Crim. App. 2003)).

I do not believe that the use for enhancement purposes of a prior conviction that is

later invalidated because of an involuntary plea implicates Mizell’s “illegal sentence”

principle. 5 I have expounded upon my view in this regard at some length in other cases in

77 S.W.3d 819 (Tex. Crim. App. 2002) (in a case involving a prosecution under Section 531.372
of the Transportation Code, this Court held that “when there is no evidence that a defendant ever
filed a notice of appeal, a conviction is deemed to be final on the date of sentencing[,]” and the
Court drew analogy to the situations presented under Section 12.42).
5
The Court goes to some length today to distinguish (what it calls) an “illegal sentence”
claim stemming from a punishment-enhancement defect from (what it calls) a simple “improper
enhancement” claim. Majority Opinion at 10–16. I am not at all sure I comprehend what marks
the distinction in the Court’s eyes. Whatever the distinction may be, the Court categorizes Hill v.
State, 633 S.W.2d 520 (Tex. Crim. App. 1981), as involving nothing more than an “improper
enhancement” claim. Majority Opinion at 11–12. Assuming that there is any validity at all to the
Court’s dichotomy, I would fail to see how the Court can possibly regard Hill (according to its
own apparent criteria) as a case involving only a simple “improper enhancement.” Hill was
indicted for theft of property of a value of between $200 and $10,000, 633 S.W.2d at 521, which
at the time of the offense, in 1978, constituted a third-degree felony, punishable then, as now, at a
term in the penitentiary of 2 to 10 years. Because of two enhancement counts, he instead received
a punishment of life in the penitentiary under Section 12.42(d) of the Penal Code. When he
challenged the validity of one of those prior convictions for enhancement purposes, he was
necessarily contending that the life sentence he received was outside of the proper range of
punishment. It was therefore—at least in contemplation of the Court’s apparent dichotomy today,
as I think I understand it—a quintessential “illegal sentence” claim, not just an “improper
 HILL — 8

the past several years, most particularly in Ex parte Pue, 552 S.W.3d 226, 238–44 (Tex.

Crim. App. 2018) (Yeary, J., dissenting). 6 I will not revisit all of those arguments here, but

will reiterate a relevant passage from that dissent:

The system does not expect the trial court to monitor the adequacy
or finality of the prior convictions alleged to enhance in order to ensure its
own authority to impose a sentence within an enhanced range. The onus is
instead placed on the defense to investigate the legitimacy of the State’s
enhancement counts, and to call any apparent deficiencies to the trial
court’s attention. In the absence of an objection, the trial court has no
particular reason to doubt its authority to assess an enhanced sentence. The
goal of preventing potentially unauthorized enhancements is not so critical
to the proper functioning of the criminal justice system as to outweigh the
State’s legitimate interest in the repose of its final convictions. Such claims
ought not to be regarded as subject to post-conviction collateral attack under
the Mizell rubric of “illegal sentence.”

Id. at 243. 7

enhancement” claim. Likewise with Ex parte White, 659 S.W.2d 434 (Tex. Crim. App. 1983). In
that case, the applicant also challenged his life sentence on the ground that one of the prior
convictions used to enhance his punishment from the third-degree felony range was invalid—
another quintessential “illegal sentence” claim, at least according to what I understand to be the
Court’s distinction. Am I wrong? What am I missing? Is the Court instead saying that a claim
stemming from an enhancement defect is only an “illegal sentence” claim if that is how the
applicant himself (or worse, the Court itself) chooses to characterize it, and that it is otherwise
simply an “improper enhancement” claim?

For my part, I remain unconvinced that any claim of punishment-enhancement error ought
to be regarded as falling within the Mizell rubric of “illegal sentence” for purposes of habeas corpus
cognizability, for reasons explained in the text. As far as I am concerned, any claim of error in the
enhancement of punishment constitutes nothing more than an “improper enhancement” claim.
6
See also Ex parte Clay, 539 S.W.3d 285 (Tex. Crim. App. 2018) (Yeary, J., dissenting);
Rodriguez v. State, 578 S.W.3d 92 (Tex. Crim. App. 2019) (Yeary, J., dissenting); Hestand v.
State, 587 S.W.3d 409 (Tex. Crim. App. 2019) (Yeary, J., dissenting).
7
Applicant has also alleged ineffective assistance of counsel for failing to investigate the
validity of his prior aggravated sexual assault conviction for use to enhance his sentences. The
Court does not address that claim in its order today. In an affidavit, trial counsel has claimed that
Applicant failed to alert him to any reason to believe his prior conviction was based upon an
involuntary plea. He does not say whether he conducted any independent investigation into the
validity of the plea but implies that he did not when he asserts that it would “place[ ] an absurd
 HILL — 9

What is more, at the time that Applicant committed the new offenses in 2007 and

2008, he was certainly aware that he was a convicted felon, and he also presumably knew

that, if he was convicted of another sexual assault crime, he would receive an automatic

life sentence pursuant to Section 12.42(c)(2). In other contexts we have found that vacating

a predicate felony does not alter a subsequent conviction; for instance, when the predicate

felony in an unlawful possession of a firearm case is vacated. 8 Pursuant to the clear

language of Section 12.42(c)(2), we should simply inquire whether the State has proved a

valid conviction enumerated under Section 12.42(c)(2)(B), similar to the way we look at

the defendant’s felony status in unlawful possession of a firearm cases. In Ex parte

Jimenez, this Court construed the language: “[a] person who has been convicted of a felony

. . . ,” found in Penal Code Section 46.05, 9 to mean that the State only had to prove a

defendant’s felony status when he possessed the firearm—not that the predicate felony had

to withstand scrutiny for all time in order for the unlawful possession of a firearm

conviction to remain valid. 361 S.W.3d 679, 683 (Tex. Crim. App. 2012). Notably, the

language under Section 12.42(c)(2)—the defendant is convicted of an offense—is similar

burden on a defendant’s trial counsel to simultaneously serve as post-conviction counsel for any
previous convictions.” Under these circumstances, I would not be averse to remanding the causes
for additional fact development with respect to Applicant’s ineffective assistance of counsel claim
and potentially filing and setting for a determination of the merits of that claim. See Pue, 552
S.W.3d at 241–2 n.4 (Yeary, J., dissenting); Clay 539 S.W.3d at 289 (Yeary, J., dissenting).
Because the Court grants relief without doing so, however, I dissent to its disposition of the causes.
8
See Ex parte Jimenez, 361 S.W.3d 679 (Tex. Crim. App. 2012) (holding that unlawful
possession of a firearm is a status crime, and Applicant was not entitled to relief even though the
predicate felony supporting his conviction had been set aside and the charge dismissed); State v.
Mason, 980 S.W.2d 635 (Tex. Crim. App. (1998) (finding that the unlawful possession of a firearm
by a felon is a status offense).
9
TEX. PENAL CODE § 46.05.
 HILL — 10

to the language found in the unlawful possession of a firearm statute. Because the State

proved at Applicant’s trial that he had previously been convicted of an offense enumerated

in Section 12.42(c)(2)(B), he was subject to the automatic life sentence enhancement under

Section 12.42(c)(2). Instead, the Court grants Applicant relief, which opens the door to the

possibility that a defendant who has been convicted of an offense, and whose sentence was

validly enhanced at that time, can challenge his enhanced sentence conviction for an

indefinite time, and seriously diminish the State’s ability to exercise its statutory

prerogative to enhance sentences with confidence that the enhancement will not undermine

the judgment.

III. INDECENCY: DISCRETIONARY LIFE SENTENCE

Once Applicant’s conviction for indecency was enhanced with the prior aggravated

sexual assault conviction, he was subject to punishment as a first-degree felon, authorizing

the jury to assess a life sentence, at its discretion, under Section 12.42(b). Even if I thought

the Court was correct that vacating a predicate felony conviction works to invalidate a

subsequent sentence that was enhanced with that predicate felony, it would nevertheless be

inappropriate for the Court to grant Applicant relief when another prior felony conviction

exists which could have been substituted for the vacated prior felony conviction. In Ex

parte Parrott, we held that an Applicant fails to demonstrate harm when the “habeas record

establishes that Applicant was previously convicted of other offenses that support the

punishment range within which he was admonished and sentenced[.]” 396 S.W.3d at 533.

Here, Applicant was finally convicted of felony theft in 2000, at the same time that

he was convicted of aggravated sexual assault. Pursuant to Ex parte Parrott, the existence
 HILL — 11

of Applicant’s prior felony theft conviction renders harmless the fact that his prior felony

conviction for aggravated sexual assault has been declared invalid, because the punishment

range for his indecency offense could still be enhanced from a second-degree felony to a

first-degree felony under Section 12.42(b). 10 Under these circumstances, it cannot be said

that he has received an illegal sentence for the indecency offense.

Perhaps it could be arguable that the introduction of the aggravated sexual assault

conviction might have improperly influenced the jury in assessing punishment in

Applicant’s indecency-with-a-child case. Maybe the jury would not have assessed a life

sentence had the indecency sentence been enhanced by the felony theft conviction and had

there been no mention of the aggravated sexual assault conviction during Applicant’s

punishment trial. The jury could well have utilized its knowledge of the now-invalidated

aggravated assault conviction, the argument might go, to justify imposing the highest

possible sentence within the range of punishment for a first-degree felony. Assuming all of

that, Applicant might argue that he is entitled to relief on his challenge to the indecency

sentence—not on the basis of an illegal-sentence claim, but on a false evidence claim. 11

Unfortunately, Applicant has not raised a false evidence claim.

10
Because Applicant committed the indecency offense on August 22, 2007, the controlling
statute is the 2006 version of the Texas Penal Code. Section 12.42(b) at that time read:

If it is shown on the trial of a second-degree felony that the defendant has been once
convicted of a felony, on conviction he shall be punished for a first-degree felony.

TEXAS PENAL CODE § 12.42(b).
11
See Ex parte Chaney, 563 S.W.3d 239, 263 (Tex. Crim. App. 2018) (“Due process of
law is violated when a conviction is obtained using false evidence, irrespective of whether the false
evidence was knowingly or unknowingly used against the defendant”) (citing Ex parte Weinstein,
421 S.W.3d 656, 665 (Tex. Crim. App. 2014)).
 HILL — 12

Applicant has been represented by counsel since the time he filed these post-

conviction habeas corpus applications; he has nevertheless failed to raise a false evidence

claim at any point. Even construing pro se writ applications liberally, we are not at liberty

to “create claims that the Court sua sponte believes meritorious when they are not arguably

present in an applicant’s pleadings.” Ex parte Carter, 521 S.W.3d 344, 350 (Tex. Crim.

App. 2017) (plurality opinion). Further, even if the Court were justified in addressing a

false evidence claim sua sponte, we would still need to determine whether the introduction

of false evidence before the jury was material to the sentence. 12 Because Applicant has

failed to raise such a claim, or to argue materiality in that context, we should not entertain

the claim today, and for that reason, if no other, the Court is correct not to grant relief on

the basis of an illegal-sentence on the indecency charge.

IV. LACHES

Applicant did not appeal from his 2000 conviction for aggravated assault of a child,

and he had brought no post-conviction habeas corpus challenge to it by the time he was

prosecuted in 2012 for the two offenses before us in these habeas corpus proceedings today.

It was only after the State had relied in good faith upon that 2000 conviction to enhance

Applicant’s punishments in the present cases that, for the very first time, he challenged the

2000 conviction in a collateral attack, beginning in 2014—fourteen years after he sustained

12
See Ex parte Ghahremani, 332 S.W.3d 470, 478 (Tex. Crim. App. 2011) (holding that
the use of false evidence must have been material to justify granting relief); See Ex parte Lalonde,
570 S.W.3d 716, 723 (Tex. Crim. App. 2019) (holding that in assessing a false evidence claim, the
Court must first determine whether the evidence is false, and if the evidence is false, then the Court
must determine whether such evidence was material).
 HILL — 13

the conviction! See Majority Opinion at 4 (“In September 2014, Applicant filed his initial

habeas application.”).

The Court today says that the time to have considered a laches bar to Applicant’s

obtaining relief in a collateral attack upon the 2000 conviction was when we granted post-

conviction relief in that case, in 2019. Id. at 8. I agree that we should have considered

laches at that time, and I regret that I did not then object on that basis. Ex parte Hill, No.

WR-83,074-03, 2018 WL 2327177 (Tex. Crim. App. May 23, 2018) (not designated for

publication). I would not compound that manifest mistake today by refusing to apply laches

now. Applicant waited at least twelve years, until after the State had relied in good faith

upon his 2000 conviction to enhance punishment in the present cases, to go to the trouble

to challenge that prior conviction. See Majority Opinion at 4 (“According to postconviction

counsel, he was hired about six months after Applicant’s enhanced sentences were affirmed

on direct appeal, and he immediately began investigating the enhancing offense.”). And it

has now been nine years since Applicant sustained the two enhanced convictions that today

he challenges—largely because it took him that long to successfully mount a collateral

attack on the prior conviction. See id. at 4–7 (describing the circuitous course of

Applicant’s various habeas corpus challenges to his 2000 conviction). As far as I am

concerned, the equities simply are not with him. The State’s legitimate interest in the repose

of its hard-won convictions and punishments easily trumps Applicant’s much-belated
 HILL — 14

attempt to undermine them. The Court should be more willing to consider denying

Applicant relief on his sexual-assault-of-a-child conviction on this basis as well. 13

V. CONCLUSION

Because the Court nevertheless grants relief with respect to that conviction, I

respectfully dissent. For reasons stated in Part III herein, I concur in the Court’s judgment

to deny relief as to Applicant’s indecency-with-a-child conviction.

FILED: October 20, 2021
PUBLISH

13
I agree with much of Presiding Judge Keller’s dissenting opinion, especially with respect
to laches. I cannot join her, however, if only because she seems to accept the Court’s conclusion
that at least some types of punishment-enhancement errors may appropriately be conceptualized
as “illegal sentence” claims under the Mizell rubric.