                                                                        PD-0398-17
                                                       COURT OF CRIMINAL APPEALS
                                                                      AUSTIN, TEXAS
                                                         Transmitted 3/5/2018 1:18 PM
                                                          Accepted 3/7/2018 11:46 AM
                                                               DEANA WILLIAMSON
                          No. PD-0398-17                                       CLERK

              TO THE COURT OF CRIMINAL APPEALS            RECEIVED
                                                   COURT OF CRIMINAL APPEALS
                                                          3/7/2018
                      OF THE STATE OF TEXAS         DEANA WILLIAMSON, CLERK




JOSE OLIVA,                                                 Appellant

v.

THE STATE OF TEXAS,                                          Appellee



                      Appeal from Harris County

                            * * * * *

              STATE PROSECUTING ATTORNEY’S
        SUBSEQUENT POST-SUBMISSION AMICUS BRIEF
        IN RESPONSE TO AMICI NCDD, DUIDLA, DCCDLA

                            * * * * *



                        STACEY M. SOULE
                      State Prosecuting Attorney
                        Bar I.D. No. 24031632

                            P.O. Box 13046
                         Austin, Texas 78711
                      information@spa.texas.gov
                      512-463-1660 (Telephone)
                          512-463-5724 (Fax)
                                       TABLE OF CONTENTS


INDEX OF AUTHORITIES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii

ARGUMENT.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2-5

PRAYER FOR RELIEF. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

CERTIFICATE OF COMPLIANCE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

CERTIFICATE OF SERVICE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8




                                                         i
                                     INDEX OF AUTHORITIES



Cases

Calton v. State, 176 S.W.3d 231 (Tex. Crim. App. 2005) (en banc). . . . . . . . . . 2-3

Chase v. State, 448 S.W.3d 6 (Tex. Crim. App. 2014). . . . . . . . . . . . . . . . . . . . . . . 5

Statutes

TEX. CODE CRIM. PROC. art. 4.05. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

TEX. ELEC. CODE § 86.006(g). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4-5

TEX. ELEC. CODE § 86.006(g), (g-1). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

TEX. ELEC. CODE § 86.006(g-1). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

TEX. ELEC. CODE § 86.010(g), (i). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

TEX. ELEC. CODE § 86.010(i)(1). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

TEX. PENAL CODE § 49.09(a). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

TEX. TRANSP. CODE § 547.614(a-1), (a-2). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

TEX. TRANSP. CODE § 547.614(b), (c).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

Rule

TEX. R. APP. P. 11. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 n.1




                                                          ii
                                 No. PD-0398-17

                    TO THE COURT OF CRIMINAL APPEALS

                           OF THE STATE OF TEXAS



JOSE OLIVA,                                                               Appellant

v.

THE STATE OF TEXAS,                                                       Appellee



                            Appeal from Harris County


                                   * * * * *

                   STATE PROSECUTING ATTORNEY’S
             SUBSEQUENT POST-SUBMISSION AMICUS BRIEF1
             IN RESPONSE TO AMICI NCDD, DUIDLA, DCCDLA

                                   * * * * *

TO THE HONORABLE COURT OF CRIMINAL APPEALS:

         The State Prosecuting Attorney submits this subsequent post-submission

amicus brief in response to Amicus Curiae the National College for DUI Defense

(NCDD), the DUI Defense Lawyer Association (DUIDLA), the Dallas Criminal


     1
    As the State Prosecuting Attorney, there is no fee attached to this filing. TEX.
R. APP. P. 11.
                                         1
Defense Lawyer Association (DCDLA), and the Denton County Criminal Defense

Lawyer Association (DCCDLA).

                                   ARGUMENT

      Pointing to the State Prosecuting Attorney’s list of offenses using the phrase

“if it shown on the trial of the offense,” Amici claim,

      The list can be broken down into three categories of statutes: (1) statutes
      where the fact that must be proven is jurisdictional [e.g. Tex. Transp.
      Code 521.457, Tex. Transp. Code 545.420, Tex. Transp. Code 644.151,
      Tex. Fam. Code 261.109], (2) statutes where the dollar amount in
      controversy determines the jurisdiction of the court and the punishment
      range for the offense [e.g. Tex. Gov’t Code 466.306, Tex. Gov’t Code
      466.307, Tex. Gov’t Code 466.308, Tex. Nat. Res. Code 151.052, Tex.
      Penal Code 33.023], and (3) statutes where an otherwise-non-criminal
      act is a fact of consequence providing for a higher punishment [e.g. Tex.
      Penal Code 15.031, Tex. Penal Code 20.05, Tex. Penal Code 32.31, Tex.
      Penal Code 15.031, Tex. Penal Code 35A.02].

      Notably absent is any other statute where a prior non-jurisdictional
      criminal offense is treated as an element of the greater offense. Not a
      single offense listed by the State makes a prior conviction an element of
      the offense unless the conviction effects both the jurisdiction of the
      court and the punishment range of the offense.

Amicus Brief of NCDD, DUIDLA, DCCDLA, at 17-18 (emphasis in original).

      This is incorrect. All those weighing in on the issue concede that Calton v.

State recognized the following guiding principle: “whether something is an element

of an offense is a completely separate inquiry from whether it is jurisdictionally

required. We have made clear that jurisdiction is not an element of an offense.” 176


                                          2
S.W.3d 231, 234-35 (Tex. Crim. App. 2005) (en banc). In line with this, Calton’s

interpretation of the phrase “if it is shown at the trial” in the “Evading Arrest or

Detention” statute supports the State Prosecuting Attorney’s argument. Id. There,

jurisdiction vested with the district court due to Calton’s use of a vehicle during the

commission of the offense; his prior conviction was not a “jurisdictional element.”

Id.

      Additionally, Amici’s distinction between offenses with (1) a jurisdictional

requirement and a fact to be proven or a threshold value element and (2) jurisdiction

and a prior offense element, is inconsequential. See Amicus Brief of NCDD,

DUIDLA, DCCDLA, at 17-18. In Calton, this Court plainly recognized examples of

offense-enhancing statutes that are non-jurisdictional and value-based or fact-

dependent. The property-value-ladder for “Theft,” the Court explained, is not a

jurisdictional requirement because jurisdiction vests when there is an allegation that

the property reaches a certain threshold amount; the value of the property is then an

element of the offense. 176 S.W.3d at 235. Next, the Court pointed out that

commission by a “public servant” is an element for first-degree “Aggravated

Assault.” Id. But the “public servant” element is not a jurisdictional requirement,

however, because jurisdiction lies with the district court regardless of whether a

“public servant” was involved. Id.


                                          3
      Even if Amici’s distinction were a key point, criminal statutes with a non-

jurisdictional prior offense enhancing element do exist (in addition to Evading Arrest

or Detention). Id. at 234-35. The offense “Restrictions on Airbags” provides, in part:

      (b) Except as provided by Subsections (c), (d), and (e), an offense under
      this section is a state jail felony.
      (c) An offense under this section is a felony of the third degree if it is
      shown on the trial of the offense that the defendant has been previously
      convicted of an offense under this section.

TEX. TRANSP. CODE § 547.614(b), (c). A district court’s jurisdiction does not need

to be invoked for a primary offense under TEX. TRANSP. CODE § 547.614(a-1), (a-2)

to be elevated to a third degree felony with a prior conviction under the same

provision. See TEX. CODE CRIM. PROC. art. 4.05 (“District courts and criminal district

court shall have original jurisdiction in criminal cases of the grade felony”).

      The Election Code provides two more examples. Consider the offense of

“Unlawfully Assisting Voter Voting Ballot By Mail.” TEX. ELEC. CODE § 86.010(g),

(i). An offense under that provision is a state jail felony and is “increased to the next

higher grade of offense if it is shown on the trial of an offense that: (1) the defendant

was previously convicted of an offense under this code.” TEX. ELEC. CODE §

86.010(i)(1).   The offense of “Method of Returning Marked Ballot” shares this

feature as well, though the statute presents a more complicated scheme. TEX. ELEC.

CODE § 86.006(g), (g-1). Subsection (g), states: “An offense under Subsection (f) is


                                           4
a Class A misdemeanor unless the defendant possessed the ballot or carrier envelope

without the request of the voter, in which case it is a felony of the third degree.”

TEX. ELEC. CODE § 86.006(g). Subsection (g-1), effective December 31, 2017,

provides: “An offense under Subsection (g) is increased to the next higher category

of offense if it is shown on the trial of an offense under this section that: (1) the

defendant was previously convicted of an offense under this code.” TEX. ELEC. CODE

§ 86.006(g-1). So a third-degree enhanced to a second-degree is non-jurisdictional.

        As the foregoing statutes demonstrate, a Class B misdemeanor DWI would not

be the only offense where a prior conviction is an offense element that does not affect

jurisdiction. The State Prosecuting Attorney’s statement that the “phrase ‘shown on

the trial of an offense’ when paired with language directed at offense classification

has acquired a technical meaning apart from punishment enhancement”2 has not been

undermined in any way. Thus, Amici’s arguments under state law (the only law

applicable) have been proven to be unpersuasive. See Chase v. State, 448 S.W.3d 6,

17-18 (Tex. Crim. App. 2014) (applicability of defensive issue to a single criminal

provision (TEX. PARKS & WILDLIFE CODE § 43.002) a reason to reject the State’s

argument that TEX. PARKS & WILDLIFE CODE § 822.013 is purely a civil statute and

not applicable to the Penal Code offense of “Cruelty to Non-Livestock Animals”).


   2
       State Prosecuting Attorney’s Post-Submission Amicus Brief, at 7.
                                           5
                             PRAYER FOR RELIEF

      Again, the State Prosecuting Attorney prays that this Court hold that TEX.

PENAL CODE § 49.09(a) is a habitual offense enhancer that, by statute in a bifurcated

proceeding, must be proven to be the defendant’s beyond a reasonable doubt.

Further, it is urged that the Court hold that the statutory error here, relating to only

timing, not sufficiency, be declared harmless because the prior was established during

punishment.


                                         Respectfully submitted,

                                         /s/ Stacey M. Soule
                                         State Prosecuting Attorney
                                         Bar I.D. No. 24031632

                                         P.O. Box 13046
                                         Austin, Texas 78711
                                         information@spa.texas.gov
                                         512-463-1660 (Telephone)
                                         512-463-5724 (Fax)




                                           6
                     CERTIFICATE OF COMPLIANCE

      The undersigned certifies that according to the WordPerfect word count tool

this document contains 1,071 words, exclusive of the items excepted by TEX. R. APP.

P. 9.4(i)(1).




                                      /s/ Stacey M. Soule
                                      State Prosecuting Attorney




                                        7
                         CERTIFICATE OF SERVICE

     The undersigned certifies that a copy of the State Prosecuting Attorney’s

Subsequent Post-Submission Amicus Brief in Response to Amici NCDD, DUIDLA,

DCCDLA has been served on March 5, 2018, via email or certified electronic to:


Hon. Patricia McLean
1202 Franklin
Suite 600
Houston, Texas 77002
mclean_patricia@dao.hctx.net

Hon. Ted Wood
1201 Franklin
13th Floor
Houston, Texas 77002
ted.wood@pdo.hctx.net

Hon. J. Edward Niehaus
207 W. Hickory Street,
Suite 309
Denton, Texas 76201
jason@bndlegal.com




                                          /s/ Stacey M. Soule
                                          State Prosecuting Attorney
