                      IN THE COURT OF CRIMINAL APPEALS
                                  OF TEXAS



                                     NO. WR-89,032-01

              EX PARTE JOHN DEWAYNE WESTERMAN, Applicant

              ON APPLICATION FOR A WRIT OF HABEAS CORPUS
              CAUSE NO. 27595A IN THE 249TH DISTRICT COURT
                        FROM JOHNSON COUNTY

      Y EARY, J., filed a dissenting opinion in which S LAUGHTER, J., joined and in
which K ELLER, P.J., joined as to parts I–III.

                                 DISSENTING OPINION

       It appears there is no limit on how long a defendant can wait before bringing an

unverified claim that his counsel was ineffective. Even twenty-eight years later, even after

his counsel has died and can no longer respond, even if plausible arguments can be made

about how counsel’s actions may not amount to ineffective assistance, there is no bar to

pursuing—and obtaining—relief. Instead of prohibiting Applicant from litigating his claims

under the doctrine of laches, the Court permits a great expenditure of judicial resources in

order to deliver Applicant the relief he seeks, all while casting aside a plausible argument for
                                                                                 WESTERMAN — 2

trial counsel’s alleged misconduct,1 Applicant’s tremendous delay in bringing his claim, and

the impossibility of ascertaining trial counsel’s account of what transpired. The Court grants

Applicant relief from his 1990 aggravated robbery conviction based on his claim that his plea

was involuntary because of an impermissible enhancement paragraph that increased the

minimum number of years he faced in prison. I would deny Applicant relief on the basis of

laches. For these and other reasons, I respectfully dissent to the Court’s granting of relief.

                                                   I.

        In 1984, Applicant was charged with burglary of a building, pled guilty, and was

sentenced to confinement for eight years. His sentence was then probated. In 1986, Applicant

violated the terms of his probation and his prison sentence was imposed, but the trial court

thereafter placed Applicant on shock probation. Four years later, in 1990, Applicant was

arrested and charged with aggravated robbery, a first degree felony, which is the subject of

this writ.

        Applicant’s shock probation for burglary was not revoked prior to the filing of his



       1
          See Ex parte Miller, 330 S.W.3d 610, 616 (Tex. Crim. App. 2009) (“Courts ‘must indulge
a strong presumption that counsel’s conduct falls within the wide range of reasonable professional
assistance,’ and that ‘the challenged action “might be considered sound trial strategy.”’ . . . When the
record contains no evidence of the reasoning behind counsel’s actions, a court normally cannot
conclude that counsel’s performance was deficient.”) (quoting Strickland v. Washington, 466 U.S. 668,
689 (1984)); see also Garcia v. State, 57 S.W.3d 436, 440 (Tex Crim. App. 2001)(“[I]n the absence
of evidence of counsel’s reasons for the challenged conduct, an appellate court ‘commonly will assume
a strategic motivation if any can possibly be imagined,’ and will not conclude the challenged conduct
constituted deficient performance unless the conduct was so outrageous that no competent attorney
would have engaged in it.”) (quoting 3 W. LaFave, et al., C RIMINAL P ROCEDURE § 11.10(c) (2d. ed
1999)).
                                                                                 WESTERMAN — 3

1990 aggravated robbery charge.2 Nevertheless, the State used the 1984 burglary conviction

to enhance Applicant’s range of punishment in his robbery case from a minimum of five

years to a minimum of fifteen years. Applicant ultimately accepted a thirty-year offer and

pled guilty to the 1990 robbery offense. Now, nearly twenty-nine years later, Applicant

claims that he would not have pled guilty and accepted the State’s thirty-year offer had he

known that the punishment range actually should have been a minimum of five years instead

of a minimum of fifteen years.

        The Court today holds that, because Applicant’s shock probation was not revoked

until after Applicant pled guilty to the robbery charge, his punishment range for the robbery

charge was improperly enhanced, making his plea involuntary. Because of the unique posture

of this case, and because of the timing of its presentation, I do not agree with the Court’s

disposition.

                                                  II.

        As I have stated before in previous separate opinions, it is a defendant’s

responsibility—through his counsel—to investigate and become aware of factors that would

weigh in favor of a lower sentence. See Ex parte Pue, 552 S.W.3d 226, 243 (Tex. Crim. App.



       2
         The State did revoke Applicant’s probation in the burglary case eight days after he pled guilty
to the aggravated robbery case. But the State did not revoke the probation before it used that offense
to enhance the punishment range in the robbery case. See T EX. P ENAL C ODE § 12.42(c) (1990) (“If it
be shown on the trial of a first-degree felony that the defendant has been once before convicted of any
felony, on conviction he shall be punished by confinement . . . for any term of not . . . less than 15
years.”)
                                                                             WESTERMAN — 4

2018) (Yeary, J., dissenting) (“The system does not expect the trial court to monitor the

adequacy or finality of the prior convictions alleged to enhance [a sentence] 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.”). A defendant’s failure to raise

improper-enhancement claims at trial means that those claims should not be cognizable on

habeas. See Ex parte Clay, 539 S.W.3d 285, 287 (Tex. Crim. App. 2018) (Yeary, J.,

dissenting) (“It thus appears that the principle that an ‘illegal sentence’ may be raised ‘at any

time,’ regardless of whether there was a contemporaneous objection lodged at trial, does not

apply with respect to improper-enhancement claims—or at least not all (and maybe not even

most) improper-enhancement claims.”).

       However, a defense lawyer’s failure to recognize that a sentence is being improperly

enhanced—because, for example, the enhancing offense was not final—may present an

applicant with grounds to assert an ineffective assistance of counsel claim or an involuntary

plea claim on post-conviction habeas corpus. See Ex parte Lilly, 656 S.W.2d 490, 493 (Tex.

Crim. App. 1983) (“It is fundamental that an attorney must have a firm command of the facts

of the case as well as the law before he can render reasonably effective assistance of

counsel.”).

                                               III.

       Just two years after Applicant pled guilty to the 1990 aggravated robbery offense, we
                                                                          WESTERMAN — 5

explained, in Ex parte Langley, that a conviction in which a defendant is placed on shock

probation is treated no differently than any other conviction that results in the imposition of

probation—the conviction is not final for enhancement purposes unless the probation is

revoked. 833 S.W.2d 141, 143 (Tex. Crim. App. 1992). What is more, we went on to

determine that a defense attorney’s failure to recognize that un-revoked shock probation

renders a conviction not final for enhancement purposes may amount to ineffective assistance

of counsel. See id. (“Even though the order granting ‘shock’ probation may, or may not, have

been included in the pen packet purportedly introduced by the state at the trial on the merits,

the fact that applicant was either still on probation or had successfully completed his

probation at the time of trial would have been easily discovered by the most cursory

investigation. . . . We conclude that applicant was denied effective assistance of counsel in

the punishment phase . . . when trial counsel failed to adequately investigate his prior

conviction and discover that applicant had been granted ‘shock’ probation which had not

been revoked.”).

       Even with this in mind, it is not entirely clear that Applicant’s trial counsel was

ineffective. To be sure, an argument could be made that Applicant’s trial counsel should have

discovered—with even “the most cursory investigation”—that Applicant was placed on

shock probation for the 1984 burglary offense, and that his probation had not been revoked

before the 1990 aggravated robbery charge. Id. And upon making this discovery, Applicant’s

trial counsel could have objected to the State’s use of the 1984 burglary offense to enhance
                                                                            WESTERMAN — 6

Applicant’s punishment range in his 1990 aggravated robbery case.

       But we really do not know that Applicant’s counsel did not discover that Applicant’s

probation for the burglary offense had not been revoked. In fact, he may have known. A

plausible counter-argument exists that Applicant and his counsel may have decided to forgo

objecting to the improper enhancement paragraph for the sake of efficiency, because the

revocation of Applicant’s probation was inevitable in light of the first-degree aggravated

robbery charge. Counsel may very well have identified the defect in the enhancement

paragraph, realized that the revocation of Applicant’s probation was imminent, and counseled

his client to forgo any complaint about the enhancement paragraph in the interest of reaching

a swift end to the proceedings and to allow Applicant to begin serving his agreed-to sentence.

Further, the possibility that this was indeed a legitimate trial strategy is bolstered by the fact

that the State actually revoked Applicant’s probation eight days after the plea to the robbery

case was finalized.

       Counsel may also have been concerned that raising an objection to the enhancement

paragraph might jeopardize Applicant’s thirty-year plea offer. Or, counsel may have

recognized that Applicant faced a maximum sentence of life in prison on the first-degree

aggravated robbery charge, and that, even were he to succeed in causing a removal of the

enhancement paragraph, a trial and subsequent sentencing might very well result in a

sentence of at least, or even potentially much higher than, thirty years. But because

Applicant’s trial counsel appears to now be deceased, and because Applicant did not file his
                                                                           WESTERMAN — 7

writ application in this case until twenty-eight years after pleading guilty, determining—at

this late date—whether there was a legitimate strategy and whether counsel provided

ineffective assistance is nearly, if not entirely, impossible.

       In its findings of fact and conclusions of law, the trial court concluded that laches did

not bar Applicant’s claims. Even though the State cannot presently locate Applicant’s file,

Applicant gave a new confession to the district attorney’s office, and for this reason, the trial

court found that the State is not prejudiced in its ability to re-prosecute Applicant. See Ex

parte Saenz, 491 S.W.3d 819, 826 (Tex. Crim. App. 2016) (“In general, the doctrine of

laches is intended to address the broader interests of the criminal-justice system, such as

prejudice to the State’s ability to prosecute a defendant or to respond to allegations due to the

loss of evidence[.]”). Applicant’s willingness to provide a new confession does, as the trial

court concluded, address one interest that the doctrine of laches seeks to protect—the State’s

ability to re-prosecute Applicant. But there are equally important interests that Applicant’s

new confession does not address.

       One of the interests that the doctrine of laches seeks to protect, but that the trial

court’s findings do not address, is the State’s ability to respond to Applicant’s claims in his

habeas corpus application. See Ex parte Perez, 398 S.W.3d 206, 213 (Tex. Crim. App. 2013)

(discussing that one of the original aims of laches was to address the State’s “prejudice in its

ability to respond to the claims raised in an application”) (citing Ex parte Carrio, 992 S.W.2d

486, 487–88 (Tex. Crim. App. 1999)). In determining whether the State is prejudiced in its
                                                                               WESTERMAN — 8

ability to respond to an applicant’s claims on habeas corpus, we have said that courts may

“broadly consider the diminished memories of trial participants[,] . . . which may often be

said to occur beyond five years after a conviction becomes final.” Id. at 216. In Applicant’s

case, over twenty-eight years have passed since he pled guilty to the 1990 robbery case. It is

likely that the trial participants’ memories are diminished due to the significant passage of

time from the plea negotiations to Applicant’s filing of this writ. Indeed, because of the great

length of time that has passed since the offense, the only thing the 1990 robbery victim can

recall about the incident was that the perpetrator had pantyhose over his face. In fact,

evidence in the habeas record suggests that there may not be anyone other than Applicant

who is able to testify today about what occurred during Applicant’s 1990 plea negotiations.3

       We have also said that laches may be invoked in circumstances in which “participants

in the trial are dead[.]” Id. at 211 (quoting Ex parte Carrio, 992 S.W.2d at 487–88). The

record before us does not state that Applicant’s trial counsel from 1990 is deceased, but the

State Bar of Texas website indicates that he is deceased.4 Regardless of the status of


       3
        At the habeas hearing, before habeas counsel asked Applicant about conversations Applicant
had with his 1990 trial counsel, the following exchange occurred:

       Q [Habeas Counsel]: Okay. Now, here is where only you can testify to this because
       you’re the only one that was involved back in 1990 who is still here. You understand
       there is a different prosecuting attorney; I’m a different defense attorney. We weren’t
       part of those negotiations. Okay. Do you understand that?

       A [Applicant]: Yes, sir.
       4
        See Maddox v. State, 591 S.W.2d 898, 900 (Tex. Crim. App. 1979) (concluding from an
examination of the Texas Legal Directory that an attorney named George I. Middaugh had a listed
                                                                             WESTERMAN — 9

Applicant’s 1990 trial counsel, there is no testimony or affidavit in the record from counsel

and, even if counsel were in fact alive, it is highly unlikely that he would be able to provide

accurate testimony about what occurred in Applicant’s plea proceeding nearly twenty-nine

years ago. As a result, we are left only with Applicant’s testimony that he would not have

accepted the State’s thirty-year offer if he knew the range of punishment he faced was five

years to life instead of fifteen years to life.

       It is true that the State does not object to granting Applicant relief in this case. Indeed,

the record reflects that the State and Applicant have reached a new agreement in which

Applicant will plead guilty for time served. As a result, the State does not raise a laches

objection to Applicant’s claims. But we have said that courts may sua sponte consider

whether laches should bar an application for the writ of habeas corpus. Ex parte Smith, 444

S.W.3d 661, 667 (Tex. Crim. App. 2014) (“For the same reasons that we abandoned the

federal approach to laches, we now hold that a court may sua sponte consider and determine

whether laches should bar relief.”). After all, there are additional interests that the doctrine

of laches protects that extend beyond any interest that the State’s prosecutors may claim in

a given case. In particular, we have said that the interest of the “judicial system and society

generally” justify a court sua sponte raising laches when the parties do not. See id. (“When

a court is called upon to issue equitable relief, the State’s failure to formally plead laches

does not restrict a court’s ability to balance equities beyond those that the parties advocate.


address in Cuero, DeWitt County).
                                                                           WESTERMAN — 10

A court may consider sua sponte the interests of the judicial system and society generally

because they implicate values that may stretch beyond the concerns of the parties. Permitting

courts to freely inquire about an applicant’s delay broadly effectuates the maxim that ‘he who

seeks equity must do equity.’”). One interest that society and the judicial system undoubtably

share is the proper adjudication of cases under the law. In order to satisfy that interest, courts

must have facts, not merely the agreement of the parties. Here, because Applicant’s trial

counsel is unavailable, we are unable to determine with any real confidence the facts

surrounding the plea negotiations in Applicant’s case that are necessary to resolve the claims

raised in his application. As a result, and due to Applicant’s nearly twenty-nine year delay

in seeking relief, the doctrine of laches should bar Applicant’s ineffective assistance of

counsel claim.

       Applicant’s second ground for relief—that his plea was involuntary—is inseparably

tied to his ineffective assistance of counsel claim. Applicant argues that his plea was

involuntary because he did not have accurate information from his attorney when he made

his decision to plead guilty and accept the State’s thirty-year offer. He claims that his trial

counsel erroneously informed him that he faced a minimum of fifteen years in prison. As a

result, Applicant argues that his plea was not voluntary. But once again, because Applicant’s

trial counsel appears to now be deceased, there is no response to Applicant’s claim that trial

counsel erroneously informed him of the minimum sentence. Under these circumstances, we

cannot determine with any real confidence whether Applicant’s involuntary plea claim is
                                                                           WESTERMAN — 11

meritorious. Consequently, the doctrine of laches should bar Applicant’s involuntary plea

claim in the same way that it should bar his ineffective assistance of counsel claim.

                                               IV.

       There is still yet another aspect of the posture of this case that troubles me. By

granting the relief Applicant requested, we place him in the same position he was in when

he accepted the State’s thirty-year offer in 1990. Only now, because the offense

previously—and arguably improperly—used to enhance Applicant’s punishment has now

become final, there exists a plausible argument that his aggravated robbery charge might

properly be subject to the enhancement. The State could argue that it should be able to

prosecute Applicant for the 1990 aggravated robbery, properly enhanced by his 1984

burglary conviction, since that 1984 conviction became final on May 22, 1990.

       I recognize that this Court has previously held that “[i]t is settled that the burden is on

the State to make a prima facie showing that any prior conviction alleged for enhancement,

or for punishing an accused as a repeat offender, became final before the commission of the

primary offense[.]” Diremiggio v. State, 637 S.W.2d 926, 928 (Tex. Crim. App. [Panel Op.]

1982) (emphasis added). The Court in Diremiggio proclaimed this final-before-commission

requirement in Section12.42(c) to be “settled[.]” But while this may be our “settled”

interpretation of the statute, I believe the Court’s previous construction bears further scrutiny.

       In Diremiggio, the Court relied on Johnson v. State, 583 S.W.2d 399 (Tex. Crim. App.

[Panel Op.] 1979), a repeat offender case in which we held that “[t]he proof was adequate
                                                                       WESTERMAN — 12
to show the prior conviction was final before the commission of the present offense.” 583

S.W.2d at 403. In reaching that conclusion, however, the Johnson court did not cite any case

that reached the same conclusion in the context of a Section 12.42(c) enhancement. The only

case the Court cited relating to the sequential order of the enhancements was a 1975 case,

Ashley v. State, 527 S.W.2d 302 (Tex. Crim. App. 1975). But Ashley construed Section

12.42(d)—an entirely different subsection that addresses habitual offender enhancement.

Section 12.42(d) requires that, for habitual status to be imposed, the State must prove the

defendant has been convicted of two prior felonies, and the second felony must have

“occurred subsequent to the first previous conviction having become final”—a requirement

notably absent from Section 12.42(c). T EX. P ENAL C ODE §12.42(d).

       So, where did this requirement—that a prior conviction become final before the

commission of the offense to be enhanced—come from? It appears to me that the principle,

that enhancing prior convictions must be final before the defendant committed the offense

the State is attempting to enhance, is rooted in case law from 1871 that relied entirely on

foreign law. In that year, the Supreme Court of Texas (the only appellate court in Texas at

that time), without providing any rationale other than pointing out that other states have

statutes that expressly contain such a requirement, proclaimed that the language in Texas’s

enhancement statute required that the “subsequent offense shall be committed after the

conviction of the former[.]” Long v. State, 36 Tex. 6, 8 (1871). In reaching this conclusion,

the Supreme Court of Texas admitted that the statute “does not say in express terms” that the
                                                                             WESTERMAN — 13
subsequent offense must be committed after the previous offense results in a conviction, but

nevertheless held that the “language clearly implies” such a conclusion. Id. In support of this

conclusion, the Court stated that “many of the codes of different states declare in express

terms” that the punishment may be enhanced only if “the subsequent offense was committed

after the conviction of the former offense.” Id. at 9 (emphasis added). But, as the dissenting

opinion in Long pointed out, “it is the duty of this court to decide cases according to the plain

import of the laws of THIS State and not according to the laws of any other state, or the

decisions of any court upon laws foreign to this State[.]” Id. at 11 (Ogden, J., dissenting)

(emphasis in original).

       In 1904, this Court followed the Supreme Court of Texas’s decision in Long, and held

that the 1895 Texas Penal Code required that prior “convictions all occurred . . . prior to the

commission of the offense for which” the defendant is being tried. Kinney v. State, 45 Tex.

Cr. R. 500, 503, 79 S.W. 570, 571 (1904). The 1895 Penal Code contained much of the same

language found in today’s Section 12.42. Notably, the enhancement provisions in Articles

1014 and 1015 of the 1895 Penal Code all included the same opening clause found in the

enhancement paragraphs in Section 12.42: “If it be shown on the trial of a . . . .” 5 But, there


       5
           Articles 1014 and 1015 of the 1895 Penal Code read:

       Article 1014. If it be shown on the trial of a misdemeanor that the defendant has been
       once before convicted of the same offense, he shall, on a second conviction, receive
       double the punishment prescribed for such offense in ordinary cases, and upon a third,
       or any subsequent conviction for the same offense, the punishment shall be increased,
       so as not to exceed four times the penalty in ordinary cases.
                                                                               WESTERMAN — 14
was no mention in the 1895 Penal Code of the requirement that prior offenses alleged for

enhancement must have resulted in a conviction before the commission of the new offense.

Instead, the statutes required only that it be shown “on the trial” of the new offense, that the

defendant has been previously convicted. Thus, the conviction-before-commission rule

established by the courts prior to the adoption of the 1974 Penal Code appears to be a

requirement that was created out of whole cloth from the Supreme Court of Texas’s opinion

in Long and this Court’s construction of the 1895 Penal Code in Kinney—not a requirement

in the plain language of the statute itself.

       This Court’s 1984 Diremiggio opinion cited another case, Tinney v. State, 578 S.W.2d

137 (Tex. Crim. App. [Panel Op.] 1979), which is an opinion that construed only Section

12.42(d), and held that a second enhancing felony had to occur subsequent to the first

enhancing felony becoming final. But Tinney did not speak to whether the felony the

defendant is on trial for must have been committed after the second enhancing felony became

final. 578 S.W.2d at 139. 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




       Art. 1015. If it be shown, on the trial of a felony less than capital, that the defendant
       has been before convicted of the same offense, or one of the same nature, the
       punishment on such second or other subsequent conviction shall be the highest which
       is affixed to the commission of such offenses in ordinary cases.

P.C. arts. 1014 & 1015 (1895).
                                                                               WESTERMAN — 15
felony became final.6 Tomlin v. State, 722 S.W.2d 702, 705 (Tex. Crim. App. 1987).

       In Tomlin, this Court prescribed the procedure to follow in the habitual offender

context under Section12.42(d): “The sequence of events must be proved as follows: (1) the

first conviction becomes final; (2) the offense leading to a later conviction is committed; (3)

the later conviction becomes final; (4) the offense for which defendant presently stands

accused is committed.” Id. Then, more recently, we reaffirmed this sequence in Jordan v.

State, 256 S.W.3d 286, 290–91 (Tex. Crim. App. 2008). Therefore, this construction is this

Court’s prevailing interpretation of Section 12.42(d).

       What is more, we have continued to uncritically import this court-made requirement

into Section 12.42(c). However, this requirement does not exist in the plain language of

either Section 12.42(c) or in 12.42(d) with respect to the relationship between the offense on

trial and the second enhancing felony. Nothing in Section 12.42(d) requires that “the offense

for which defendant presently stands accused” must be committed after the second (more


       6
         The requirement that a conviction must become final before it may be used as an enhancing
conviction was not conceived through legislative enactment until 1974 for Section 12.42(d) (the
habitual enhancement provision), and not until 2011 for Section 12.42(c) (the repeat-offender
enhancement provision). See Act of May 24, 1973, 63rd Leg., R.S., ch. 399 § 1, sec. 12.42(d), 1973
Tex. Gen. Laws 883, 908 (showing enactment of the 1974 Penal Code); Act of May 25, 2011, 82nd
Leg., R.S., ch. 834 § 3, sec. 12.42(c)(1), 2011 Tex. Gen. Laws 2104, 2105 (showing the 2011
amendment adding the finality of conviction language to Section 12.42(c)). Nonetheless, this Court
has read—despite the former absence of such language in the statute indicating this was the
Legislature’s intent—a finality requirement, through the statute’s use of the word “conviction,” for
enhancement purposes. See Arbuckle v. State, 105 S.W.2d 219, 219 (Tex. Crim. App. 1937) (“Before
a prior conviction may be relied on to enhance the punishment in a subsequent case such prior
conviction must be final.”) (citing Brittian v. State, 214 S.W.351, 352 (Tex. Crim. App. 1919) (holding
that convictions used to enhance “must be legal[,] and finally dispose of the case under which such
convictions were secured”)).
                                                                         WESTERMAN — 16
recent) enhancing conviction becomes final. Tomlin, 722 S.W.2d at 705. This requirement

is entirely the product of corruptions imposed by case law dating at least back to the foreign-

law-based 1871 Supreme Court of Texas opinion, Long, and our subsequent construction of

the 1895 Penal Code in Kinney. Long, 36 Tex. at 8; Kinney, 79 S.W. at 571. Still, this Court

has not explained why such a questionable construction of Section 12.42(d) should be

imported into Section 12.42(c), so as to require that an enhancing offense in the repeat

offender context must be final before the commission of the new felony offense. Because this

Court has relied on case law construing Section 12.42(d) to construe Section 12.42(c)—and

it has not conducted its own exegesis of Section 12.42(c), or explained the genesis of our

construction in Diremiggio—the proper interpretation of Section 12.42(c) is, as far as I am

concerned, an issue this Court should revisit.

       Perhaps an argument could be made that since Long and Kinney were decided, the

Legislature has never amended the statute to do away with the entirely court-invented

requirement that, in the enhancing context, all prior felonies must be final before the next

felony is committed. Long, 36 Tex. at 8; Kinney, 79 S.W. at 571. But when the Legislature

adopted the 1974 Texas Penal Code, it conspicuously included the requirement in Section

12.42(d) that “the second previous felony conviction is for an offense that occurred

subsequent to the first previous conviction having become final[.]” T EX. P ENAL C ODE

12.42(d). In adopting the 1974 Penal Code, the Legislature codified in part what we had said

in opinions addressing enhancement provisions in the period of time after Long and Kinney,
                                                                        WESTERMAN — 17
but prior to the adoption of that code. See Ellis v. State, 115 S.W.2d 660, 662 (Tex. Crim.

App. 1938) (“[A]ppellant’s main complaint directed at that part of the indictment charging

prior convictions is that there is omission of the averment that each succeeding offense was

committed after conviction of the preceding offense. We are of opinion that this complaint

is well taken[.]”); Gammill v. State, 117 S.W.2d 790, 791 (Tex. Crim. App 1940) (“Appellant

attacks that part of the indictment alleging the prior convictions on the ground that there is

omission of the averment that each succeeding offense was committed after conviction of the

preceding offense. This complaint is well founded.”). The Legislature was thus well aware

of how to incorporate such a requirement into the Penal Code—and was aware of our

construction of previous enhancement provisions—yet it conspicuously left out that

requirement in Section 12.42(c) when it adopted the 1974 Penal Code.

       So, should we follow this precedent even though it is manifestly in conflict with the

language the Texas Legislature adopted in the statute? In my view, a strong argument can be

made that we should not. When Texas courts recognize that we have overstepped the

constitutional mandate in Article II of our Texas Constitution and have become legislators

ourselves, we should acknowledge our fault, and step rightly back to our place. See T EX.

C ONST. art. II (“The powers of the Government of the State of Texas shall be divided into

three distinct departments, each of which shall be confided to a separate body of magistracy,

to wit: Those which are Legislative to one; those which are Executive to another, and those

which are Judicial to another; and no person, or collection of persons, being of one of these
                                                                         WESTERMAN — 18
departments, shall exercise any power properly attached to either of the others, except in the

instances herein expressly permitted.”). This is especially true when it appears that what led

us to this error was a heightened focus on foreign law to the derogation of our own State’s

legislative prerogative—as appears to have occurred in Long in 1871.

       When we focus on the plain language of Section 12.42(c)—“if it is shown on the trial

of a felony of the first degree that the defendant has previously been finally convicted of a

felony . . .”—the word “previously” does not appear to relate back to the commission of the

new offense. T EX. P ENAL C ODE § 12.42(c). Instead, “previously” seems to indicate only that

the defendant must have been finally convicted of a felony before the inception of the trial

for the new felony offense. Id. So long as the first felony conviction is final before the State

brings the prosecution in the new felony, Section 12.42(c) seems on its face to suggest that

the first felony conviction may be used to enhance the new felony that is on trial, even if the

new felony on trial was committed before the first conviction became final. Indeed, Section

12.42(c) itself never speaks to the commission of any offense at all.

       This being the case, if we were to read Section 12.42(c) according to its plain

language, the State would be able to once again enhance Applicant’s punishment because the

1984 burglary charge became final on May 22, 1990. As a result, even if Applicant’s trial

counsel was ineffective for failing to object to the enhancement paragraph during the 1990

plea negotiations, Applicant would be unable to show that he was prejudiced by the

ineffective representation, because Applicant would now be in the same position that he was
                                                                       WESTERMAN — 19
in when his counsel did not object during the plea proceedings. See Strickland v. Washington,

466 U.S. 668, 687 (1984) (“[T]he defendant must show that [counsel’s] deficient

performance prejudiced the defense.”).

                                             V.

       In my opinion, we have already expended far too much of the state’s scarce judicial

resources on this case. I cannot join the Court’s decision granting relief in this case where

so much inexcusable delay has occurred, where the true facts about the entry of the plea

cannot reliably be ascertained, and where a proper construction of our laws would be likely

only to put Applicant back into the same position he now seeks relief from. I respectfully

dissent.


FILED:               April 10, 2019
PUBLISH
