ACCEPTED
06-14-00138-CR
SIXTH COURT OF APPEALS
TEXARKANA, TEXAS
10/2/2015 4:18:30 PM
DEBBIE AUTREY
CLERK
No. 06-14-00138-CR
IN THE COURT OF APPEALS
FILED IN
6th COURT OF APPEALS
FOR THE TEXARKANA, TEXAS
10/2/2015 4:18:30 PM
SIXTH JUDICIAL DISTRICT OF TEXAS DEBBIE AUTREY
Clerk
JAMIE LEE BLEDSOE
Appellant
V
THE STATE OF TEXAS
Appellee
APPEALED FROM THE 71st DISTRICT COURT
HARRISON COUNTY, TEXAS
TRIAL COURT CAUSE #12-0374X
BRIEF OF STATE
COKE SOLOMON
CRIMINAL DISTRICT ATTORNEY
HARRISON COUNTY, TEXAS
P.O. BOX 776
MARSHALL, TEXAS 75671
(903) 935-8408
BY: SHAWN ERIC CONNALLY
ASSISTANT CRIMINAL DISTRICT ATTORNEY
BAR #24051899
ATTORNEY FOR THE STATE
APPELLEE REQUESTS ORAL ARUGMENT
i
No. 06-14-00138-CR
JAMIE LEE BLEDSOE
Appellant
V
THE STATE OF TEXAS
Appellee
__________________________________________
NAMES OF ALL PARTIES AND ATTORNEYS
__________________________________________
The names and identifying information of all parties and attorneys were
correctly stated in Appellant’s brief, except for the following correction:
Ebb Mobley was Bledsoe’s Original Appellate Counsel, not trial counsel.
Mr. Bledsoe represented himself Pro Se at trial.
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TABLE OF CONTENTS
NAMES OF ALL PARTIES AND ATTORNEYS .................................................. ii
INDEX OF AUTHORITIES.....................................................................................iv
PRELIMINARY STATEMENT OF THE NATURE OF THE CASE ..................... 1
STATE’S REPLY ISSUE ONE: …………………………….……1
STATEMENT OF THE FACTS ............................................................................... 3
ARGUMENTS AND AUTHORITIESREPLY ISSUE ONE ................................... 3
PRAYER .................................................................................................................. 12
CERTIFICATE OF SERVICE ................................................................................ 12
iii
INDEX OF AUTHORITIES
CASES:
Ex Parte Parrott, 396 S.W.3d 531 (Tex.Crim.App 2013)………...……….….2, 7-8
Jordan v. State, 256 S.W.3d 286 (Tex.Crim.App. 2008)…………………...…2, 5-6
Diaz v. State (Tex.App.-Houston [1st Dist] unpublished opinion, June 18,
2015)…………………………………………………………………….….….2, 6-7
Wilkerson v. State, 391 S.W.3d 190, (Tex.App.Eastland 2012)…………..……..2, 7
Marshall v. State, 210 S.W.3d 618, (Tex.Crim.App. 2006)…………………….….3
Ex parte Rich, 194 S.W.3d 508, 511 (Tex.Crim.App. 2006)………………...….3, 8
Samaripas v. State, 454 S.W.3d 1 (Tex.Crim.App.2014)…………………….….4-5
Taylor v State, 462 S.W.3d 223 (Tex.App.-Houston [1st Dist.] 2015)…………...4-5
Polen v. State (Tex.App.Waco unpublished opinion, Feb. 13, 2014)……………...7
Wright v. State (Tex.App.Dallas unpublished opinion, Aug. 4, 2015)……………..8
Como v. State (Tex.App.Beaumont, unpublished opinion, June 26, 2013)……...8-9
Pelache v. State, 324 S.W.3d 568, 577 (Tex.Crim.App. 2010)………………...…10
McNatt v. State, 188 S.W.3d 198, 202-203 (Tex.Crim.App.2006)……….………11
STATUTES AND AMENDMENTS:
TEXAS PENAL CODE SEC. 30.02(c)(1)…………………………...…………….4
TEXAS PENAL CODE SEC. 12.35 (a) and (b)………………………………..….4
TEXAS PENAL CODE SEC. 12.425(b)………………………...……………4-5, 7
iv
PRELIMINARY STATEMENT OF THE NATURE OF THE CASE
Appellant’s preliminary statement of the case is correct in his brief.
STATE’S REPLY ISSUE ONE
The state concedes error that cause #08-0177X (state’s exhibit 50)
should not have been used for enhancement purposes of the appellant’s
current charge under Texas Penal Code 12.425(b). While the enhancement
allegation in #08-0177X was ultimately “punished” as a second degree
felony, it was still a state jail felony “punishable” under sec. 12.35 of the
Texas Penal Code for purposes of enhancement and did not lose its character
as a state jail felony conviction after enhancement.
Counsel’s appellate brief argues the case should be remanded to the
trial court for a new punishment trial for sentencing limited to the state jail
felony punishment range, the state disagrees with this remedy.
The state contends (with full disclosure of the difficult mountain it has
to climb) that it can be argued that Appellant was not harmed by the above
conceded error, because the state also presented evidence other final felony
convictions that could have properly been used for enhancement under sec.
12.425(b) under the reasoning adopted by the Court of Criminal Appeals in
1
Ex Parte Parrott, 396 S.W.3d 531 (Tex.Crim.App 2013) and two
unpublished cases from Texas courts of appeals interpreting Parrott;
because in the current case Appellant: was aware he was subject to
enhancement, was not surprised by the introduction of all his prior
convictions, did not object to the introduction of all of his priors, and
admitted to the jury during the punishment trial that all of his prior
convictions were true. However, Parrott dealt with a writ of habeas corpus
illegal sentence claim and not a direct appeal as to the sufficiency of the
evidence of the enhancement allegations as in Jordan v. State, 256 S.W.3d
286 (Tex.Crim.App. 2008) and as such Appellant’s case may be
distinguishable from Parrott and more akin to Jordan.
Based on the Jordan opinion and how Texas courts of appeals have
interpreted Jordan (see Diaz v. State, (Tex.App.Dallas unpublished opinion,
June 18, 2015))(see also Wilkerson v. State, 391 S.W.3d 190,
(Tex.App.Eastland 2012)) this Court might agree that a showing of harm is
unnecessary on direct appeal once error is found due to insufficient evidence
to support an enhancement allegation and Appellant is entitled to a new
punishment trial.
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Should this court agree the Appellant is entitled to relief, the proper
remedy in this case is to grant relief and remand proceedings to the trial
court only for a new punishment trial in which the state has the option to
again enhance punishment to a second degree felony, assuming the evidence
introduced at the new punishment trial is two final non-state jail felony
convictions in sequence, after proper notice is given to the appellant.
The state does not address any of Appellant’s pro se brief arguments
since Appellant is not entitled to dual or hybrid representation once
Appellant’s counsel files an appellate brief on his behalf. see Marshall v.
State, 210 S.W.3d 618, (Tex.Crim.App. 2006).
STATEMENT OF THE FACTS
Appellant’s statement of facts is correct in his brief.
ARGUMENTS AND AUTHORITIES REPLY ISSUE ONE
The state concedes error in using #08-0177X (state’s exhibit 50) in order to
enhance Appellant’s current sentence. Appellant in his brief correctly states the
law that an illegal sentence may be challenged at any time. see Ex parte Rich, 194
S.W.3d 508, 511 (Tex.Crim.App. 2006). Appellant also correctly stated in his brief
3
that the Appellant was charged with the state jail felony offense of Burglary of a
Building pursuant to Sec. 30.02(c)(1) of the Texas Penal Code and that normally
the punishment range pursuant for a state jail felony is by confinement in a state
jail for any term of not more than two years or less than 180 days, and a fine not to
exceed $10,000. TEXAS PENAL CODE SEC. 12.35 (a) and (b). The state gave
notice of its intent to enhance Appellant’s sentence. (CR Vol. 1, p. 138) Sec.
12.425 (b) provides as follows:
“If it is shown on the trial of a state jail felony punishable under Section
12.35(a) that the defendant has previously been convicted of two felonies
other than a state jail felony punishable under Section 12.35(a), and the
second previous felony conviction is for an offense that occurred subsequent
to the first previous conviction having become final, on conviction the
defendant shall be punished for a felony of the second degree.” TEXAS
PENAL CODE § 12.425(b)
One of the priors listed in the state’s notice of enhancement is cause
#08-0177X (state’s exhibit 50). State’s exhibit 50 is a judgment of conviction for
Burglary of a Building, a state jail felony that was enhanced to a 2nd degree felony
punishment range because of two prior final felony convictions.
According to the decisions reached in Samaripas v. State, 454 S.W.3d 1
(Tex.Crim.App.2014) and from the Houston Court of Appeals in Taylor v State,
462 S.W.3d 223 (Tex.App.-Houston [1st Dist.] 2015), it was improper to use
Appellant’s conviction in #08-0177X in order to enhance the Appellant’s current
4
charge to a second degree felony punishment range. While those two cases involve
interpreting TEXAS PENAL CODE 12.42(d), the state concedes that identical
statutory language is used in 12.425(b). The plain language of the statute in Penal
Code 12.425(b) makes it clear that only felonies “other than state jail felonies
punishable under 12.35(a)” are eligible for enhancement under 12.425(b). While
Appellant’s prior conviction in #08-0177X was in the end “punished” as a 2nd
degree felony, it was nonetheless “punishable” under 12.35(a) when that
prosecution began and did not lose its character as a state jail felony conviction
after the punishment range had been enhanced. (Samaripas at 7-8).
The Court of Criminal Appeals in Samaripas addressed this exact point in its
footnotes and points out the significant difference between the words “punished”
and “punishable”, noting that under the current wording of the statute, it would be
improper to use an offense that was “punishable” under 12.35(a) to enhance a
defendant under the current version of TEXAS PENAL CODE 12.42(d). (see
Samaripas at 8, footnote 5) The Taylor court reached the same conclusion applying
the Samaripas decision.
In Jordan, the appellant appealed his conviction based on the sufficiency of
the evidence to prove the finality of his prior convictions. The state concedes that
in Jordan, the Court of Criminal Appeals clearly states that “the state’s failure to
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meet its evidentiary burden with respect to habitual offender enhancement ‘can
never be deemed harmless’ ” Jordan, 256 S.W.3d at 292. Leaving the state no
other option but to conclude that it is not necessary to show harm in order to be
entitled to a new punishment hearing when an improper enhancement allegation is
found to be error. However, it should be noted that in Jordan, the state did not
offer any evidence of any other prior convictions that could have properly been
used to enhance the sentence.
The Court of Appeals in Dallas in Diaz v. State (Tex.App.-Houston [1st Dist]
unpublished opinion, June 18, 2015), involved a defendant who was enhanced with
two prior felony convictions under 12.42(d). In Diaz, the second felony offense
alleged should not have been used to enhance the punishment range because the
second offense was actually “committed” six months before Diaz was “convicted”
of the first felony alleged. Diaz at 3. (Meaning that the neither the first nor the
second felony conviction alleged was final prior to the commission of the other)
However, even though the defendant had other valid felony convictions that were
introduced into evidence that could have been used to enhance the sentence, the
Dallas Court of Appeals applied a very similar analysis to the Jordan case stating:
“Nevertheless, whether the state could have properly alleged habitual offender
enhancement, it is undisputed that it did not actually do so. And whether an error
6
may warrant habeas corpus relief is a separate question from the issue we must
resolve here, which is whether we should undertake a harm analysis when this
issue is raised on direct appeal” Diaz at 4. Summarizing that even if the state had
other convictions admitted into evidence in which to enhance the sentence
properly, it did not do so, concluding a further harm analysis was not required. Id.
The Waco Court of Appeals in Polen v. State (Tex.App.Waco unpublished
opinion, Feb. 13, 2014) also applied the Jordan standard in finding that a showing
of harm is unnecessary on direct appeal of an improper enhancement. Polen at 2,
footnote 1 (see also Wilkerson v. State, 391 S.W.3d 190, (Tex.App.Eastland 2012).
While Samaripas, Jordan, Diaz, and Polen involved the analysis of sec
12.42(d) of the Texas Penal Code, the state concedes the plain language of
12.425(b) is identical to 12.42(d) with regards to a “a felony other than a state jail
felony punishable under 12.35” TEXAS PENAL CODE 12.425(b).
However, based on the reasoning of the Ex parte Parrott decision, it can
be argued that a showing of harm is necessary before Appellant’s conviction
should be overturned. The Court of Criminal Appeals concluded in Parrott that an
applicant must prove harm in order to obtain relief in a writ of habeas corpus
premised on an illegal sentence claim. Parrott at 534. Two Texas Courts of
Appeals have addressed the Parrott decision with similar facts to this case.
7
Wright v. State (Tex.App.Dallas unpublished opinion, Aug. 4, 2015) and Como v.
State (Tex.App.Beaumont, unpublished opinion, June 26, 2013). In both cases, the
courts of appeals cited to Parrott as authority on a direct appeal of an illegal
sentence claim.
In Wright, the appellant argued he received an illegal sentence because he
was given no notice of a prior conviction, did not plea true any allegations of a
prior conviction, and the state did not otherwise prove he had a prior conviction.
Wright at 2. In denying relief, the Dallas Court of Appeals held that a defendant
must show his sentence was “actually illegal”. Id (citing Ex parte Rich, 194
S.W.3d 508, 511 (Tex.Crim.App.2006) in order to be entitled to relief. And going
on to say that “appellant’s sentence was only illegal if the (prior) conviction was
unavailable for enhancement.” Id (citing Ex parte Parrott, 396 S.W.3d 531, 537-38
(Tex.CrimApp. 2013). In Wright the appellant never disputed that he had a prior
conviction that would have been available for enhancement and never disputed that
he was sentenced within the range of punishment had the state shown a prior
conviction. Id.
Similar to the facts in Wright, in this case Appellant does not dispute that
he had several appropriate prior final felony convictions for enhancement, and
does not dispute that the range of punishment would have been correct had the
8
state alleged one of Appellant’s many other final prior felony convictions for
enhancement.
Furthermore, Como v. State (Tex.App.Beaumont, unpublished opinion 2013)
presents similar facts before the court today. In Como there was an improper
enhancement allegation that was used to enhance Como’s sentence, but the state
had other convictions that would have been proper to enhance the sentence. The
state argued Como was not harmed by the error. However, the seminal issue
distinguishing Como from the facts of this case is that in Como, no actual evidence
was ever offered of Como’s prior convictions that could have been used to
properly enhance his sentence, therefore the appellate court was unable to consider
evidence that was not part of the record on appeal. Como at 2-3. What makes
Appellant’s current case distinguishable is that the requisite prior convictions were
introduced without objection and before the jury in deciding what punishment to
assess and are part of the appellate record in this case. (RR Vol. 5, p. 10-11)(state’s
exhibits 50-55).
The state concedes it is well established in Texas law that unpublished cases
are not authority on this court. However, guidance can be taken from such
opinions. When looking at the entire record in this case the question this court is
asked to answer is: where it is clear the Appellant was noticed his sentence would
9
be enhanced (CR Vol. 1, p. 138), was not surprised by the introduction of all his
prior convictions (CR Vol. 1, p.124), did not object to their introduction (RR Vol.
5, p. 10-11), and even admitted to the jury that all of his prior convictions were true
(RR Vol. 5, p. 9-10 and 24-25) but the conviction in #08-0177X was improperly
used for enhancement, is it necessary that the Appellant show harm in order to be
entitled to relief? The state, while not conceding, believes this Court will rule the
answer to that question is no.
Should the Court decide in the alternative that a showing of harm is necessary
in order to obtain relief, that state also contends that lack of proper enhancement
notice of the other final felony convictions is not harmful error, nor is the
Appellant not entering a plea of “true” or “not true” to any of his other prior
felonies; since the appellant was not surprised by their introduction, was aware his
criminal record was going to be discussed in punishment (CR Vol. 1, p.124),
offered no objection to their introduction (RR Vol. 5, p. 10-11), and even gave a
de facto plea of true to those allegations in his statements and arguments to the
jury. (RR Vol. 5, p. 9-10 and 24-25) see also Pelache v. State, 324 S.W.3d 568,
577 (Tex.Crim.App. 2010) (“Under a due process analysis, the issue is “whether
appellant received sufficient notice of the enhancements so that he had an
opportunity to prepare a defense to them.”)
10
Should the court rule Appellant is not required to show harm in order to be
entitled to relief; the proper remedy is to remand this cause to the trial court for a
new punishment hearing. If this case is remanded for a new punishment trial, the
state can file a new punishment enhancement under sec 12.425(b) of the Texas
Penal Code alleging the appropriate non-state jail felony enhancements, enhancing
the Appellant’s sentence to a second degree felony. see McNatt v. State, 188
S.W.3d 198, 202-203 (Tex.Crim.App.2006).
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PRAYER
The state respectfully prays this Court affirm the verdict and judgment of the
court below, and if not, remand for a new punishment trial in accordance with the
law as set out in McNatt v. State.
Respectfully Submitted
Coke Solomon
Criminal District Attorney
Harrison County, Texas
By: /s/ Shawn Eric Connally
________________________
Shawn Eric Connally
Assistant Criminal District Attorney
Bar #24051899
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the foregoing Brief of the
Appellee has been sent to the attorney for Appellant, Bob Cole, on the 2nd day of
October, 2015.
/s/ Shawn Eric Connally
____________________________
Shawn Eric Connally
CERTIFICATE OF COMPLIANCE
I hereby certify compliance with T.R.A.P 9.4(i)(3), and that the number of
words in this document is 2809.
/s/ Shawn Eric Connally
____________________________
Shawn Eric Connally
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Jamie Lee Bledsoe v. State
Combined Opinion