PD-0734-17
COURT OF CRIMINAL APPEALS
AUSTIN, TEXAS
Transmitted 10/6/2017 1:38 PM
Accepted 10/9/2017 10:00 AM
DEANA WILLIAMSON
NO.
PD-‐0734-‐17
CLERK
IN
THE
FILED
COURT OF CRIMINAL APPEALS
10/9/2017
DEANA WILLIAMSON, CLERK
COURT
OF
CRIMINAL
APPEALS
OF
TEXAS
AUSTIN,
TEXAS
EX
PARTE
RUSSELL
BOYD
RAE,
APPELLANT
V.
THE
STATE
OF
TEXAS,
APPELLEE
BRIEF
FOR
APPELLANT
___________________________________________
NO.
06-‐17-‐00063-‐CR
COURT
OF
APPEALS
FOR
THE
SIXTH
DISTRICT
OF
TEXAS
AT
TEXARKANA
On
appeal
from
Cause
Number
F14-‐689-‐A
In
the
276TH
District
Court
of
Marion
County,
Texas
Honorable
Robert
Rolston,
Judge
Presiding
Hough-‐Lewis
(“Lew”)
Dunn
P.O.
Box
2226
Longview,
TX
75606
Tel.
903-‐757-‐6711
Fax
903-‐757-‐6712
Email:
dunn@texramp.net
Texas
State
Bar
No.
06244600
Attorney
for
Appellant
IDENTITY
OF
PARTIES
AND
COUNSEL
In
compliance
with
Rule
68.4,
TEX.
R.
APP.
PROC.,
following
are
the
identities
of
the
trial
court
judge,
all
parties
to
the
judgment
appealed
from,
and
the
names
and
addresses
of
all
trial
and
appellate
counsel:
Parties
Russell
Boyd
Rae,
Appellant
The
State
of
Texas,
Appellee
Trial
Court
Judge
Hon.
Robert
Rolston
Presiding
Judge,
276th
District
Court
Marion
County,
Texas
Trial
and
Appellate
Counsel
William
K.
Gleason,
Attorney
at
Law
P.O.
Box
888
Jefferson,
TX
75657
Counsel
for
Appellant
at
trial
James
R.
(“Rick”)
Hagan,
Attorney
at
Law
P.
O.
Box
3347
Longview,
TX
75606
Counsel
for
Appellant
in
Probation
Revocation
and
Habeas
at
Trial
Court
Angela
Smoak
County
&
District
Attorney
of
Marion
County
102
West
Austin,
Room
201
Jefferson,
TX
75657
Trial
Counsel
for
the
State
of
Texas,
Appellee
ii
IDENTITY
OF
JUDGE,
PARTIES,
AND
COUNSEL
(CONT’D)
Hough-‐Lewis
(“Lew”)
Dunn
Attorney
at
Law
P.O.
Box
2226
Longview,
TX75606
Counsel
for
Appellant
on
Appeal
Ricky
Shelton
Assistant
County
Attorney
102
West
Austin,
Room
201
Jefferson,
TX
75657
Counsel
for
State
on
Appeal
Stacey
M.
Soule
State
Prosecuting
Attorney
P.O.
Box
13046
Austin,
TX
78711-‐3046
iii
TABLE
OF
CONTENTS
PAGE
IDENTITY
OF
PARTIES
AND
COUNSEL
…………………………………………
ii
TABLE
OF
CONTENTS
………………………………………………………………..
iv
INDEX
OF
AUTHORITIES
…………………………………………………………….
vi
STATEMENT
OF
THE
CASE
…………………………………………………………
viii
STATEMENT
REGARDING
ORAL
ARGUMENT
……………………………….
viii
SOLE
ISSUE
PRESENTED
……………………………………………………………..
ix
STATEMENT
OF
FACTS
…..…………………………………………………………….
1
Guilty
Plea
………………………………………………...........................
1
State’s
Petition
to
Revoke
Probated
Judgment
………………..
2
Hearing
on
Application
for
Writ
of
Habeas
Corpus
and
……
2
Motion
to
Quash
Appeal
…………………………………………………………………………….
3
SUMMARY
OF
THE
ARGUMENT
………………………………………………….
4
ARGUMENT
………………………………………………………………………………
5
iv
PAGE
SOLE
ISSUE,
RESTATED:
………………………………………………………….
5
DID
THE
COURT
OF
APPEALS
ERR
IN
FINDING
THAT
THE
PRIOR
CONVICTION
FOR
OPERATING
A
WATERCRAFT
WHILE
INTOXICATED
WAS
A
FINAL
CONVICTION?
Part
I.
The
Texas
Parks
&
Wildlife
Code
is
Different…………
5
Part
II.
Analysis
of
the
Differences
Between
………………………
8
Texas
Parks
&
Wildlife
and
Texas
Penal
Code
Part
III.
The
Court
of
Appeals
Did
Not
Grasp
the
Distinction
10
Part
IV.
Application
of
Law
of
the
Case
or
Stare
Decisis
11
Part
V.
Conclusion
……………………………………………………………
13
PRAYER
FOR
RELIEF
…………………………………………………………………..
14
CERTIFICATE
OF
SERVICE
……………………………………………………………..
15
CERTIFICATE
OF
COMPLIANCE
…………………………………………………….
16
APPENDICES
APPENDIX
A:
Information
and
Judgment
in
Cause
No.
6513
APPENDIX
B:
TEX.
PARKS
&
WILD.
CODE
§31.097
APPENDIX
C:
TEX.
PARKS
&
WILD.
CODE
§31.097
as
amended,
effective
9-‐1-‐91
APPENDIX
D:
TEX.
PARKS
&
WILD.
CODE
§31.097
Repealing
Legislation,
1993
v
INDEX
OF
AUTHORITIES
CASES
PAGE
Ex
parte
Langley,
833
S.W.2d
141
(Tex.
Crim.
App.
1992)
………….
10
Ex
parte
Murchison,
560
S.W.2d
654
(Tex.
Crim.
App.
1978)
……..
6,
9
Ex
parte
Russell
Boyd
Rae,
No.
74,840
…………………………………
11,
12,
13
(Tex.
Crim.
App.
2003)
Ex
parte
Russell
Boyd
Rae,
2017
Tex.
App.
LEXIS
5325
………………
3,
10
(Tex.
App.
–
Texarkana,
June
13,
2017)
Ex
parte
Serrato,
3
S.W.3d
41
(Tex.
Crim.
App.
1999)
………………..
7
Nixon
v.
State,
153
S.W.3d
550
…………………………………………………
10
(Tex.
App.
–
Amarillo
2004,
pet.
ref’d)
Rizo
v.
State,
963
S.W.2d
137
(Tex.
App.
–
Eastland
1997,
no
pet.)
11
State
v.
Swearingen,
478
S.W.3d
718
(Tex.
Crim.
App.
2015)
……..
13
Swearingen
v.
State,
424
S.W.3d
32
(Tex.
Crim.
App.
2014)
………..
13
STATUTES
AND
RULES
ACTS
OF
TEXAS
LEGISLATURE
Chapter
900,
§1.18(b),
1993
…………………………………………..
9,
11
TEX.
CODE
CRIM.
PROC.
11.072
……………………………………………………….......................
2
vi
PAGE
TEX.
PENAL
CODE
§49.06
……………………………………………………………………………..
9
§49.09(a)
………………………………………………………………………..
6
§49.09(b)(2)
………………………………………………………………….
4,
7,
10
§49.09(c)(3)(C)
……………………………………………………………………
4,
8
§49.09(d)
………………………………………………………………………..
10
TEX.
PARKS
&
WILD.
CODE
§31.097
…………………………………………………………………………..
5,
8,
9
§31.097(b)
………………………………………………………………………
4,
5
§31.097(c)
……………………………………………………………………….
5
VERNON’S
ANNOTATED
CIVIL
STATUTES
Art.
6701l-‐1
…………………………………………………………………….
7,
10
vii
STATEMENT
OF
THE
CASE
Appellant
pleaded
guilty
to
DWI,
third
offense
and
was
sentenced
to
ten
(10)
years,
probated
for
ten
years.
The
State
moved
to
revoke,
and
Appellant
filed
an
Application
for
Writ
of
Habeas
Corpus,
which,
after
hearing,
was
denied.
That
Application
contested
the
use
of
a
prior
conviction
to
enhance
the
DWI
to
a
felony.
Appeal
was
made
to
the
Sixth
Court
of
Appeals
in
Texarkana,
which
affirmed
the
trial
court
in
a
Memorandum
Opinion
on
or
about
June
13,
2017.
A
Petition
for
Discretionary
Review
was
then
filed
on
July
12,
2017.
This
Court
granted
discretionary
review
on
September
13,
2017.
STATEMENT
REGARDING
ORAL
ARGUMENT
This
Court
has
stated
that
the
case
will
be
submitted
on
briefs
without
oral
argument.
viii
SOLE
ISSUE
PRESENTED
DID
THE
COURT
OF
APPEALS
ERR
IN
FINDING
THAT
THE
PRIOR
CONVICTION
FOR
OPERATING
A
WATERCRAFT
WHILE
INTOXICATED
WAS
A
FINAL
CONVICTION?
ix
NO.
PD-‐0734-‐17
IN
THE
COURT
OF
CRIMINAL
APPEALS
OF
TEXAS
AUSTIN,
TEXAS
EX
PARTE
RUSSELL
BOYD
RAE,
APPELLANT
V.
THE
STATE
OF
TEXAS,
APPELLEE
BRIEF
FOR
APPELLANT
_____________________________________________________________
TO
THE
HONORABLE
JUDGES
OF
THE
COURT
OF
CRIMINAL
APPEALS:
COMES
NOW
RUSSELL
BOYD
RAE,
and
files
this,
his
Brief
in
support
of
review
of
his
conviction
in
the
trial
court
for
felony
DWI
and
subsequent
affirmance
by
the
Sixth
Court
of
Appeals,
and
would
show:
STATEMENT
OF
FACTS
Guilty
Plea
Appellant
was
indicted
for
felony
DWI,
with
two
prior
intoxication
offenses
alleged
(CR
6).
At
his
guilty
plea
(August
3,
2016)
Appellant
was
1
admonished
by
the
trial
court
(1
RR
4-‐7),
then
entered
his
guilty
plea
(1
RR
7)
to
the
charge
of
DWI,
pleading
guilty
or
“true”
to
the
enhancement
paragraphs
(1
RR
8).
The
trial
court
accepted
the
pleas
as
voluntarily
made,
and
asked
the
State
for
its
evidence,
consisting
of
a
signed
stipulation
of
evidence
(1
RR
9).
The
State
recommended
ten
years
probated
for
ten
years,
fine
of
$3,500,
and
other
conditions
of
probation,
including
10
days
in
county
jail
(1
RR
9).
Appellant
agreed
(1
RR
9).
Trial
court
followed
the
agreement
of
the
parties
and
entered
judgment
accordingly
(1
RR
10;
CR
8).
State’s
Petition
to
Revoke
Probated
Judgment
On
or
about
November
10,
2016,
there
was
filed
the
“State’s
Petition
to
Revoke
Probated
Judgment”
(CR
11).
Capias
issued;
Appellant
was
arrested
and
jailed.
Thereafter,
on
his
behalf
a
“Defendant’s
Motion
to
Quash
Application
for
Revocation
of
Probation”
was
filed
on
December
27,
2016,
with
several
exhibits
attached
(CR
13).
Hearing
on
Application
for
Writ
of
Habeas
Corpus
and
Motion
to
Quash
On
December
27,
2017,
Appellant
filed
his
Application
for
Writ
of
Habeas
Corpus,
pursuant
to
Art.
11.072,
TEX.
CODE
CRIM.
PROC.
(CR
30).
The
State
filed
the
“State’s
Response
to
Applicant’s
Application
for
Writ
of
Habeas
Corpus
and
Motion
to
Quash”
(CR
50).
2
At
the
hearing
on
February
23,
2017,
Counsel
for
Appellant
offered
arguments
and
authorities
on
why
the
second
conviction
used
for
enhancement
(boating
while
intoxicated,
Cause
No.
6513
from
Marion
County
in
1993)
was
not
a
proper
case
to
use
for
enhancement,
requesting
the
trial
court
to
declare
the
judgment
in
the
case
at
bar
void
because
of
that
infirmity
(2
RR
3,
5).
State’s
counsel
countered
by
arguing
that
there
is
a
distinction
to
be
made
between
using
a
prior
DWI
for
purposes
of
jurisdictional
enhancement
as
opposed
to
using
it
for
purposes
of
punishment
(2
RR
6),
urging
the
trial
court
to
review
her
arguments
in
her
“Response”
(CR
50).
During
the
hearing
both
parties
agreed
that
the
exhibits
to
their
respective
pleadings
be
admitted
into
evidence
as
exhibits,
and
the
trial
court
approved
(2
RR
6,7).
Thereafter,
the
trial
court
entered
its
“Order
Denying
Application
for
Writ
of
Habeas
Corpus
with
Findings
of
Fact
and
Conclusions
of
Law”
(CR
74).
Appeal
The
Court
of
Appeals
upheld
the
denial
of
habeas
relief
in
Ex
parte
Russell
Boyd
Rae,
2017
Tex.
App.
LEXIS
5325
(Tex.
App.
–
Texarkana,
June
13,
2017).
3
SUMMARY
OF
THE
ARGUMENT
The
Court
of
Appeals
failed
to
grasp
the
distinction
between,
on
the
one
hand,
the
old
law
that
pertained
to
“boating
while
intoxicated”
as
enacted
in
1989
in
TEXAS
PARKS
&
WILDLIFE
CODE
§31.097(b),
and,
on
the
other
hand,
later
law
under
the
Texas
Penal
Code
describing
intoxication-‐
related
offenses
and
use
of
prior
convictions.
The
law
governing
the
use
of
prior
conviction
for
“boating
while
intoxicated”
on
June
22,
1992
–
the
date
of
Appellant’s
prior
offense
-‐-‐
provided
that,
if
one
successfully
worked
community
supervision
and
was
not
revoked,
then
that
“conviction”
was
never
legally
a
“final
conviction”
for
purposes
of
enhancement.
TEX.
PENAL
CODE
§49.09(c)(3)(C)
and
the
repealing
legislation
in
1994
stated
that
an
offense
committed
before
its
effective
date,
was
covered
by
the
law
in
effect
when
the
offense
was
committed,
and
that
the
former
law
was
continued
in
effect
for
that
purpose.
Therefore,
the
later
law
found
in
TEX.
PENAL
CODE
§49.09(b)(2),
concerning
what
priors
could
be
used
to
enhance
a
DWI
to
a
felony,
did
not
apply
to
Appellant.
The
same
issue
in
2003
was
resolved
in
favor
of
Appellant
by
this
Court;
the
law
of
the
case
or
stare
decisis
should
yield
the
same
outcome.
4
ARGUMENT
SOLE
ISSUE,
RESTATED
DID
THE
COURT
OF
APPEALS
ERR
IN
FINDING
THAT
THE
PRIOR
CONVICTION
FOR
OPERATING
A
WATERCRAFT
WHILE
INTOXICATED
WAS
A
FINAL
CONVICTION?
To
elevate
the
DWI
of
June
21,
2015,
to
a
third
degree
felony,
the
State
relied
upon
two
prior
intoxication
offenses:
a
conviction
for
DWI
on
January
28,
1987,
in
Cause
No.
87-‐16
from
Cass
County,
and
a
conviction
for
operating
a
boat
while
intoxicated
on
July
6,
1993,
in
Cause
No.
6513
from
Marion
County.
(See,
Indictment,
CR
6).
That
offense
was
committed
on
June
22,
1992
(See,
Information,
CR
17).
Part
I.
The
Texas
Parks
&
Wildlife
Code
is
Different
In
1992
the
offense
of
“boating
while
intoxicated”
was
found
in
TEX.
PARKS
&
WILD.
CODE,
§31.097,
in
particular
§31.097(b),
TEX.
PARKS
&
WILD.
CODE,
which
stated,
in
relevant
part:
“No
person
may
operate
a
moving
vessel…while
the
person
is
intoxicated…”
Punishment
was
also
found
in
the
same
code,
in
§31.097(c),
TEX.
PARKS
&
WILD.
CODE,
giving
a
range
of
punishment
to
include
a
fine,
jail,
or
a
combination
of
both;
subsequent
subsections
allowed
for
more
severe
punishment
for
repeat
offenders.
It
was
this
law
under
which
the
State
brought
its
complaint
and
5
information
in
1993
and
for
which
Appellant
was
convicted
in
Cause
No.
6513
in
Marion
County.
Exhibit
A
of
Appellant’s
Application
in
Habeas
Corpus
(CR
36
ff)
offers
a
copy
of
the
“Information,”
showing
Applicant’s
offense
was
alleged
to
have
occurred
on
June
22,
1992.
The
Judgment
and
Order
Granting
Probation
was
entered
on
July
6,
1993.
(Both
the
Information
and
Judgment
are
attached
to
this
Brief
as
“Appendix
A.”)
Though
at
one
point
the
State
moved
to
revoke
that
probation,
the
motion
was
eventually
dismissed
(CR
41-‐42).
Thus,
Appellant
served
out
his
probation
without
ever
being
revoked.
Appellant
contends
that
the
prior
boating
while
intoxicated
case
could
not
be
used
to
enhance
his
current
offense
to
a
third
degree
felony.1
See,
Ex
parte
Murchison,
560
S.W.2d
654,
656
(Tex.
Crim.
App.
1978).
There,
in
an
appeal
of
a
conviction
with
assault
with
intent
to
commit
rape,
enhanced
by
two
prior
felony
convictions
to
yield
a
life
sentence,
the
Court
of
Criminal
Appeals
held
that,
absent
an
order
revoking
probation,
a
conviction
is
not
“final”
and
may
not
be
used
for
enhancement
purposes;
to
do
otherwise
was
a
violation
of
due
process
of
law.
Similarly,
because
of
its
1
In
that
event,
the
highest
level
of
offense
in
this
matter
would
be
a
Class
A
misdemeanor.
Appellant
does
not
contest
the
use
of
the
other
misdemeanor
conviction
in
Cause
No.
87-‐16
from
Cass
County.
See,
TEX.
PENAL
CODE,
§49.09(a).
6
own
particular
statute,
the
operation
of
a
moving
vessel
while
intoxicated
or
“boating
while
intoxicated”
–
when
probated
and
not
revoked
–
does
NOT
operate
as
an
enhancing
offense.
Because
the
1992
case
arose
under
a
different
statute,
it
differs
from
other
intoxication
offenses
that
involve
a
probated
sentence
linked
to
the
operation
of
a
motor
vehicle.
In
the
event
of
the
latter,
the
case
of
Ex
parte
Serrato,
3
S.W.3d
41,
43
(Tex.
Crim.
App.
1999)
held
that
“a
probated
DWI
which
occurred
after
January
1,
1984,
but
prior
to
September
1,
1994,
may
properly
be
used
to
enhance
a
sentence.”
That
was
the
case,
because
the
DWI
statute
then
in
effect,
Article
6701l-‐1,
V.A.C.S.,
specifically
stated:
“For
purposes
of
this
article,
a
conviction
for
an
offense
that
occurs
on
or
after
January
1,
1984,
is
a
final
conviction,
whether
or
not
the
sentence
for
the
conviction
is
probated.”
Ex
parte
Serrato,
at
43.
It
might
seem
at
first
glance
as
if
the
prior
watercraft/boating
DWI
would
be
available
as
an
enhancement.
TEX.
PENAL
CODE
§49.09(b)(2)
states
that
a
DWI
may
be
enhanced
by
any
combination
of
prior
intoxication
convictions:
driving,
boating,
or
flying,
and
two
of
them
will
7
serve
to
enhance
to
a
third
degree
felony.
However,
TEX.
PENAL
CODE
§49.09(c)(3),
“Operating
a
watercraft
while
intoxicated,”
defines
the
offense,
in
relevant
part:
“Offense
of
operating
a
watercraft
while
intoxicated
means:
….
(C)
an
offense
under
Section
31.097,
Parks
and
Wildlife
Code,
as
that
law
existed
before
September
1,
1994.”
(emphasis
supplied)
That
latter
statute,
TEX.
PARKS
&
WILD.
CODE
§31.097,
was
the
law
in
effect
when
Appellant
was
charged
and
received
his
probated
sentence
on
July
6,
1993,
the
offense
occurring
on
June
22,
1992.
Consequently,
Subsection
(C)
of
TEX.
PENAL
CODE
§49.09(c)(3)
applies
in
the
case
at
bar.
Part
II.
Analysis
of
the
Differences
Between
Texas
Parks
&
Wildlife
and
Texas
Penal
Code
That
being
the
case,
the
next
question
is
this:
Did
Section
TEX.
PARKS
&
WILD.
CODE
§31.097
specify
whether
or
not
a
probated
conviction
under
that
statute
was
final?
To
answer
that,
one
must
review
its
legislative
history.
The
entire
statute,
TEX.
PARKS
&
WILD.
CODE
§31.097,
as
enacted
into
law
by
the
71st
Legislature
(effective,
July
1,
1989)
is
attached
as
“Appendix
B.”
The
law
8
was
amended
by
the
72nd
Legislature,
effective
September
1,
1991,
as
seen
in
attached
“Appendix
C.”
Finally,
the
law
was
repealed
by
the
73rd
Legislature,
providing
that
“boating
while
intoxicated”
offenses
occurring
on
or
after
September
1,
1994,
were
to
be
prosecuted
under
§49.06,
TEX.
PENAL
CODE,
attached
as
“Appendix
D.”
So
the
answer
to
the
question
above
is
this:
Neither
version
of
that
statute,
seen
in
Appendix
B
or
C,
stated
that
a
probated
sentence
under
TEX.
PARKS
&
WILD.
CODE
§31.097
was
available
for
enhancement.
In
fact,
Chapter
900,
§1.18(b)
of
the
1993
repealing
legislation
stated
as
follows,
in
relevant
part:
…
“(b)
An
offense
committed
before
the
effective
date
of
this
article
is
covered
by
the
law
in
effect
when
the
offense
was
committed,
and
the
former
law
is
continued
in
effect
for
that
purpose.”
(Appendix
D).
Therefore,
the
law
in
effect
on
June
22,
1992,
applied
to
Appellant’s
“boating
while
intoxicated”
offense,
not
some
law
enacted
at
a
later
date.
That
means
the
pronouncement
in
Ex
parte
Murchison
controls:
only
a
conviction
in
a
revoked
probation
-‐-‐
only
that
sort
of
“final”
conviction
–
can
be
used
to
enhance,
not
something
less.
Absent
a
specific
statutory
9
directive
such
as
found
in
Art.
6701l-‐1,
V.A.C.S.,
or
in
TEX.
PENAL
CODE
§49.09(d),
a
probated
sentence
from
1993
for
boating
while
intoxicated
is
NOT
a
final
conviction
for
purposes
of
enhancement,
unless
it
is
revoked
and
a
final
conviction
entered.
A
successfully
served
probation
–
which
happened
in
Cause
No.
6513
–
is
not
available
for
enhancement.
See
also,
Ex
parte
Langley,
833
S.W.2d
141,
143
(Tex.
Crim.
App.
1992).
There
the
defendant
was
convicted
and
given
probation,
then
revoked
and
sentenced,
but
then
given
shock
probation,
setting
the
case
back
to
the
status
of
probation,
which
was
unrevoked.
It
was
error
to
use
that
case
for
enhancement.
See
also,
Nixon
v.
State,
153
S.W.3d
550,
551
(Tex.
App.
–
Amarillo
2004,
pet.
ref’d).
Part
III.
The
Court
of
Appeals
Did
Not
Grasp
the
Distinction
The
Court
of
Appeals
failed
to
grasp
the
distinction
just
made.
Instead,
it
relied
upon
TEX.
PENAL
CODE
§49.09(b)(2)
which
pertains
to
enhancing
the
DWI
to
a
felony
of
the
third
degree
if
it
is
shown
that
the
person
has
been
convicted
two
times
of
any
intoxication
offense.
See,
Ex
parte
Rae,
2017
Tex.
App.
LEXIS
5325,
*3
and
n.
4,
citing
to
TEX.
REV.
CIV.
STAT.
art.
6701l-‐1.
Furthermore,
the
Court
of
Appeals
cited
to
10
Rizo
v.
State,
963
S.W.2d
137,
139
(Tex.
App.
–
Eastland
1997,
no
pet.)
to
support
its
reasoning
(id.).
However,
Rizo
is
inapposite
since
it
involved
a
conviction
under
an
older
driving
while
intoxicated
statute,
not
a
conviction
for
the
operation
of
a
watercraft
while
intoxicated
under
the
TEX.
PARKS
&
WILD.
CODE.
The
Court
of
Appeals
ignored
the
distinction
about
how
the
law
concerning
a
conviction
under
the
TEXAS
PARKS
&
WILD.
CODE
applied
to
the
prior
Marion
County
case.
The
point
is
that,
as
such,
that
conviction
was
never
final.
It
was
an
offense
“covered
by
the
law
in
effect
when
the
offense
was
committed,
and
the
former
law
is
continued
in
effect
for
that
purpose.”
(See,
Chapter
900,
§1.18(b),
Appendix
D,
post).
Part
IV.
Application
of
Law
of
the
Case
or
Stare
Decisis
This
Court
so
held
in
2003
in
Cause
No.
74,840,
Ex
parte
Russell
Boyd
Rae
(per
curiam
decision,
December
3,
2003).
In
that
case
precisely
the
same
issue
arose
over
using
the
same
Marion
County
operation
of
watercraft
case,
Cause
No.
6513,
to
enhance
a
DWI
in
Gregg
County
to
a
felony
in
Cause
No.
28,841-‐B.
Part
of
the
reasoning
behind
this
Court’s
granting
the
writ
was
ineffectiveness
of
counsel
“for
failing
to
investigate
one
of
the
prior
convictions
used
to
elevate
this
offense
to
a
felony.”
The
11
trial
court
found
that
the
prior
offense
(i.e.,
Cause
No.
6513)
was
not
a
final
conviction
available
for
enhancement
purposes
and
that
there
was
ineffectiveness
of
counsel
in
failing
to
investigate
that
prior
conviction;
the
trial
court
recommended
granting
relief.
This
Court
agreed
with
that
recommendation
and
granted
habeas
corpus
relief.
Although
no
ineffectiveness
of
counsel
issue
was
raised
in
the
current
habeas
application,
the
underlying
determining
consideration
in
Cause
No.
74,840,
Ex
parte
Russell
Boyd
Rae
was
the
use
of
a
prior
conviction
that
was
not
final
to
enhance
a
misdemeanor
DWI
offense
to
a
felony;
this
Court
agreed
with
the
trial
court
in
2003
that
the
“boating
while
intoxicated”
conviction
was
not
a
final
conviction;
otherwise,
there
would
have
been
no
predicate
for
finding
ineffectiveness.
It
was
the
same
prior
case
that
was
used
here:
Cause
No.
6513
from
Marion
County.
The
principle
of
the
“law
of
the
case”
or
stare
decisis
applies
to
the
instant
case.
This
Court
has
written
that
“
‘an
appellate
court’s
resolution
of
questions
of
law
in
a
previous
appeal
are
binding
in
subsequent
appeals
concerning
the
same
issue.’
Therefore,
’when
the
facts
and
legal
issues
are
virtually
identical,
they
should
be
controlled
by
an
appellate
court’s
previous
resolution.’
Such
a
rule
promotes
‘judicial
consistency
and
12
efficiency.’
“
State
v.
Swearingen,
478
S.W.3d
718,
720
(Tex.
Crim.
App.
2015)
(citing
to
Swearingen
v.
State,
424
S.W.3d
32,
36
(Tex.
Crim.
App.
2014).
What
is
that
same
issue?
It
is
this:
can
the
prior
“conviction”
of
Appellant
under
the
Texas
Parks
&
Wildlife
Code
in
Cause
No.
6513
be
used
to
enhance
a
subsequent
DWI
to
a
felony?
The
answer
in
2003
was
“no”
and
should
still
be
“no”
under
the
law
of
the
case
or
stare
decisis.
It
is
the
same
defendant
and
the
same
prior
and
now
an
attempt
–
again
–
to
use
it
to
enhance.
Part
V.
Conclusion
Appellant
would
urge
this
Court
in
the
case
at
bar
to
follow
its
own
precedent,
and
apply
the
same
reasoning
it
applied
in
reviewing
that
prior
habeas
application
in
Cause
No.
74,840,
Ex
parte
Russell
Boyd
Rae
from
2003.
Appellant
contends
that,
in
light
of
the
foregoing,
it
is
clear
that
the
Court
of
Appeals
erred
in
failing
to
find
that
the
prior
conviction
in
Cause
No.
6513
was
not
a
final
conviction
and
could
not
be
used
for
enhancement.
Appellant
urges
reversal
of
the
Judgment
of
the
Court
of
Appeal,
finding
that
the
prior
conviction
for
boating
while
intoxicated
in
Cause
No.
13
6513
from
Marion
County
was
never
a
final
conviction
for
the
purposes
of
enhancement,
and
remanding
to
the
lower
courts
for
appropriate
relief,
including
a
re-‐sentencing
as
a
Class
A
misdemeanor,
or,
alternatively,
a
reformation
of
the
sentence
to
show
a
conviction
for
a
Class
A
Misdemeanor,
and
remand
for
a
new
hearing
on
punishment.
PRAYER
FOR
RELIEF
WHEREFORE,
PREMISES
CONSIDERED,
Appellant
respectfully
prays
that
this
Court,
in
consideration
of
the
foregoing
arguments
and
authorities,
issue
an
opinion
reversing
the
Court
of
Appeals’
Judgment,
remanding
this
cause
to
the
trial
court,
vacating
and
setting
aside
the
conviction
as
a
felony,
and,
instead,
reflecting
a
judgment
of
conviction
as
a
Class
A
misdemeanor,
and
remand
for
a
hearing
on
sentencing.
Respectfully
submitted,
Hough-‐Lewis
Dunn
Hough-‐Lewis
(“Lew”)
Dunn
P.O.
Box
2226
Longview,
TX
75606
Tel.
903-‐757-‐6711
Fax
903-‐757-‐6712
Email:
dunn@texramp.net
Texas
State
Bar
No.
06244600
Attorney
for
Appellant
14
CERTIFICATE
OF
SERVICE
I
hereby
certify,
by
affixing
my
signature
above,
that
a
true
and
correct
copy
of
the
foregoing
Brief
for
Appellant,
was
sent
to
the
following
person
by
certified
mail,
return
receipt
requested,
on
the
6th
day
of
October,
2017,
to
Ms.
Stacy
M.
Soule,
State
Prosecuting
Attorney,
at
P.O.
Box
13046,
Austin,
TX
78711-‐3046
and
also
sent
by
electronic
means,
and
also
a
true
and
correct
copy
was
sent
by
first
class
mail
to
Ms.
Angela
Smoak,
Marion
County
&
District
Attorney,
102
W.
Austin
Street,
Jefferson,
TX
75657
and
also
sent
by
electronic
means
on
the
same
date.
Hough-‐Lewis
Dunn
Hough-‐Lewis
Dunn
15
CERTIFICATE
OF
COMPLIANCE
I
certify
that
the
foregoing
document
complies
with
Rule
9,
TEX.
R.
APP.
PROC.,
regarding
length
of
documents,
in
that,
exclusive
of
caption,
identity
of
parties
and
counsel,
statement
regarding
oral
argument,
table
of
contents,
index
of
authorities,
statement
of
the
case,
issues
presented,
statement
of
jurisdiction,
statement
of
procedural
history,
signature,
proof
of
service,
certification,
certificate
of
compliance,
and
appendix,
it
consists
of
2,703
words.
Hough-‐Lewis
Dunn
Hough-‐Lewis
Dunn
16