                                                                   PD-0734-17
                                                  COURT OF CRIMINAL APPEALS
                                                                  AUSTIN, TEXAS
                                                   Transmitted 11/8/2017 10:42 AM
                                                      Accepted 11/8/2017 2:22 PM
                     NO. PD-0734-17                          DEANA WILLIAMSON
                                                                           CLERK
                         IN THE
                                                       FILED
                                              COURT OF CRIMINAL APPEALS
               COURT OF CRIMINAL APPEALS             11/8/2017
                                               DEANA WILLIAMSON, CLERK
                        OF TEXAS
                      AUSTIN, TEXAS

              EX PARTE RUSSELL BOYD RAE,
                           APPELLANT
                               V.
                      THE STATE OF TEXAS,
                            APPELLEE
                       NO. 06-17-00063-CR
                       COURT OF APPEALS
             FOR THE SIXTH DISTRICT OF TEXAS
                         AT TEXARKANA
____________________________________________________
          Appealed from the 276th Judicial District Court
                      Marion County, Texas
                Trial Court Cause No. F14-689-A


                      STATE’S BRIEF


                              ANGELA SMOAK
                              Marion County Attorney

                              Ricky Shelton
                              Assistant County Attorney
                              Marion County, Texas
                              102 West Austin, Room 201
                              Jefferson, TX 75657
                              (903) 665-2611
                              (903) 665-3348 (fax)
                              SBOT 24098418
                              ricky.shelton@co.marion.tx.us
                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 and District Attorney of Marion County
102 West Austin, Room 201
Jefferson, TX 75657
Trial Counsel for the State of Texas, Appellee




                                        i
     IDENTITY OF JUDGE, PARTIES, AND COUNSEL (CONT’D)


Hough-Lewis(“Lew”) Dunn, Attorney at Law
P.O. BOX 2226
Longview, TX 75606
Counsel for Appellant on Appeal

Ricky Shelton
Assistant County and District Attorney, Marion County
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




                                    ii
                          TABLE OF CONTENTS


IDENTITY OF PARTIES AND COUNSEL………..…………………………                      i

TABLE OF CONTENTS…………………………………………………………..                           iii

INDEX OF AUTHORITIES………………………………………………………                           iv

STATEMENT OF THE CASE…………………………………………………….                              1

STATEMENT REGARDING ORAL ARGUMENT…………………………...                          1

STATEMENT OF FACTS………………………………………………………….                               3

REPLY TO APPELLANT’S SOLE ISSUE ………….............................       6

  1) The Appellant has failed to challenge every reason
     or alternative holding made by the Court of Appeals.
  2) The Court of Appeals ruled, in order to
     jurisdictionally enhance a DWI to a felony, there is
     no requirement that the prior convictions be final.
  3) Furthermore, even if required to be a final
     conviction, the Court of Appeals did not err in
     finding the prior conviction for Operating a
     Watercraft While Intoxicated to be a final
     conviction.
SUMMARY OF THE ARGUMENT………………………………………………..                             7

ARGUMENT AND AUTHORITY………………………………………………….                              8

CONCLUSION………………………………………………………………………… 14

PRAYER………………………………………………………………………………… 16

CERIFICATE OF SERVICE……………………………………………………….... 16

CERTIFICATE OF COMPLIANCE………………………………………………… 17
                                     iii
                        INDEX OF AUTHORITIES

Ex Parte Russell Boyd Rae,
      2017 Tex. App. LEXIS 5325
      (Tex. App. – Texarkana, June 13, 2017)………………………….                 5, 7, 13

Gonzales v. State,
      864 S.W.2d 522,523-24 (Tex. Crim. App. 1993)…………………                  8

Gibson v. State
      995 S.W.2d 693,694 (Tex. Crim. App. 1993)…………………….                  8, 12

Coit v. State,
      808 S.W.2d 473, 475 (Tex. Crim. App.1991)……....................       10

Boykin v. State,
      818 S.W.2d 782, 785 (Tex. Crim. App.1991)……………………….                   10

Ex Parte Murchison,
      560 S.W.2d 654, 656 (Tex. Crim. App. 1978)…………………....              11, 12

Rizo v. State,
      963 S.W.2d 137, 139 (Tex. App. –Eastland 1997, no pet.)….                13

Ex parte Russell Boyd Rae,
     (per curiam decision, December 3, 2003)………………………….                        14


      STATUTES:
      Tex. Code of Crim. Proc. Art. 11.072…………………………………                   4
      TEX. REV. CIV. STAT. art. 6701l -1(h) (1991)…………………….                8, 13
      TEX. Penal Code §49.09(b)……………………………………………….                        7-14
      TEX. Penal Code 12.42……………………………………………………..                         12
      TEX. Penal Code §49.04……………………………………………………                          9
      §31.097 previously of the Texas Parks and Wildlife Code…….          11,13
      TEX. Penal Code §31.03 …………………………………………………..                         11
      TEX. Penal Code §21.01 …………………………………………………..                         11

                                      iv
                       STATEMENT OF THE CASE

     On August 3, 2016, Appellant pleaded guilty to a third degree felony
DWI. The appellant also affirmatively pleaded true to the enhancement
paragraph contained in the indictment. Appellant was sentenced to ten (10)
years in TDC Institutional Division, probated for ten years.

     On November 10, 2016, the State filed a Motion to Revoke Appellant’s
probated sentenced.     Appellant filed an Application for Writ of Habeas
Corpus, which was denied after hearing. That Writ Application contested the
use of a prior conviction to jurisdictionally enhance the DWI to a felony. An
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.




                                     -1-
                              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


                               STATE’S BRIEF


TO HE HONORABLE JUDGES OF THE COURT OF CRIMINAL APPEALS:

      COMES NOW THE STATE OF TEXAS, and files this, a Brief in reply to

Appellant’s petition for discretionary review of his conviction in the trial court

for felony DWI, subsequently affirmed by the Sixth Court of Appeals, and

would show:




                                       -2-
                          STATEMENT OF FACTS

Guilty Plea

      Appellant was indicted for a third degree felony DWI, with two prior

intoxication offenses alleged.(CR 6) On August 3, 2016, at the hearing for

his guilty plea, Appellant appeared with counsel and was admonished by the

trial court.(1 RR 4-7). Appellant entered a plea of guilty to the charge of DWI

and furthermore, pleaded “true” to the enhancement paragraphs.(1 RR 7-8)

The trial court accepted the pleas as voluntarily made, and the State offered

a signed stipulation of evidence to the trial court.(1 RR 9)        The State

recommended a sentence of ten years probated for ten years, a fine of

$3500.00 and other conditions of probation, including 10 days in county

jail.(1 RR 9) Appellant agreed with the recommendation, and thereafter, the

trial court followed the agreement of the parties and entered judgment

accordingly. (1 RR 10; CR8)

State’s Petition to Revoke Probated Judgment

      On or about November 10, 2016, the State filed “State’s Petition to

Revoke Probated Judgment.”(CR 11) A capias was issued, and Appellant

was arrested and jailed. Thereafter, on December 27, 2016, Appellant filed

                                      -3-
“Defendant’s Motion to Quash Application for Revocation of Probation” with

several exhibits attached.(CR 13)

Hearing on Application for Writ of Habeas Corpus and Motion to Quash

      On December 27, 2016, Appellant filed his Application for Writ of

Habeas Corpus, pursuant to Art. 11.072, TEX. CODE CRIM PROC.(CR 30) In

response, the State filed “State’s Response to Applicant’s Application for Writ

of Habeas Corpus and Motion to Quash.”(CR 50)

      At the hearing on February 23, 2017, Counsel for Appellant offered his

arguments and authorities concerning 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; counsel

requested the trial court to declare the judgment in the case at bar void

because of that infirmity.(2 RR 3,5) The State 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, urging the trial court to review the State’s arguments contained

in State’s “Response”.(2 RR 6, CR 50)       During the hearing both parties




                                      -4-
agreed that the exhibits to their respective pleading be admitted into

evidence as exhibits, and the trial court approved.(2 RR 6,7)

     Thereafter, the trial court entered an “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).




                                    -5-
             REPLY TO APPELLANT’S SOLE ISSUE

                       (from Appellant’s brief)

            APPELLANT’S 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?

                          STATE’S REPLY

1) The Appellant has failed to challenge every reason or
   alternative holding made by the Court of Appeals.


2) The Court of Appeals ruled, in order to jurisdictionally
   enhance a DWI to a felony, there is no requirement that
   the prior convictions be final.


3) Furthermore, even if required to be a final conviction, the
   Court of Appeals did not err in finding the prior
   conviction for Operating a Watercraft While Intoxicated
   to be a final conviction.




                                 -6-
                     SUMMARY OF THE ARGUMENT

Part I.

      The Appellant has failed to challenge every reason or alternative

holding made by the Court of Appeals. The sole ground for review submitted

by the Appellant to this Court is whether “the Court of Appeals erred in

finding that the prior conviction for operating a watercraft while intoxicated

was a final conviction.” The Court of Appeals, citing previous case law, held

for the jurisdictional enhancement of a DWI under TEX. Penal Code

§49.09(b), there is no requirement the alleged prior convictions be “final”

convictions. Based on his sole ground for review, the Appellant has failed to

adequately and/or properly challenge the holding in Ex Parte Russell Boyd

Rae, 2017. Id.




Part II.

      The plain language of TEX. Penal Code §49.09(b) does not require that

the prior convictions used to enhance a current charge under TEX. Penal

Code §49.04 be “final” convictions, only that they be prior “convictions”.




                                     -7-
Part III.

      In response to Appellant’s sole ground for review, even assuming a

“final” conviction is required, under the applicable law at the time, TEX. REV.

CIV. STAT. art. 6701l -1(h) (1991), that obligation is met.




                 ARGUMENT AND AUTHORITIES

Part I.

      The Appellant has failed to challenge every reason or alternative

holding made by the Court of Appeals. Gonzales v. State, 864 S.W.2d

522,523-24 (Tex. Crim. App. 1993)

      The sole ground for review submitted by the Appellant to this Court is

whether “the Court of Appeals erred in finding that the prior conviction for

Operating a Watercraft While Intoxicated a final conviction.” However, the

Court of Appeals held that, “the plain language of Section 49.09 merely

required the State to prove that Rae was ‘twice previously convicted for

offenses related to operating a motor vehicle, aircraft, or watercraft while

intoxicated,’ and nothing more.” Ex Parte Russell Royd Rae, 2017 Tex. App.

LEXIS 5325 (Tex. App. – Texarkana, June 13, 2017) (citing Gibson v. State,

                                      -8-
995 S.W.2d 693,694 (Tex. Crim. App. 1993).              Appellant has failed to

challenge or request review on the primary issue and holding by the Court

of Appeals. Therefore, the Appellant’s sole ground for review of whether or

not his prior conviction for Operating a Watercraft While Intoxicated was a

final conviction does not merit review by this court.

Part II.

      The plain language of TEX. Penal Code §49.09(b) does not require that

the prior convictions used to enhance a current charge under TEX. Penal

Code §49.04 be “final convictions”, only that they be prior “convictions”.

      At the trial level, Appellant was charged and convicted for DWI under

the TEX. Penal Code §49.04, and enhanced jurisdictionally under the Tex.

Penal Code §49.09.

      TEX. Penal Code §49.09(b)(2) clearly states that:
      “any offense under… §49.04… is a felony of the third degree if it is
shown on the trial of the offense that the person has been convicted
[emphasis added]: two times of any other offense relating to the operating
of a motor vehicle while intoxicated, operating an air craft while intoxicated,
operating a watercraft while intoxicated, or operating or assembling an
amusement ride while intoxicated.”




                                      -9-
      “Where the statute is clear and unambiguous, the Legislature must be

understood to mean what it has expressed, and it is not for the courts to

add or subtract from such a statute.” Coit v. State, 808 S.W.2d 473, 475

(Tex. Crim. App.1991)      In that same year, the Court held that when

attempting to discern the collective legislative intent or purpose, the Court

should necessarily focus its attention on the literal text of the statute in

question and attempt to discern the fair, objective meaning of that text at

the time of its enactment. Boykin v. State, 818 S.W.2d 782, 785

(Tex.Crim.App.1991)

      The plain language of TEX. Penal Code §49.09(b) is clear and

unambiguous. Had the legislature intended to require the State to prove

“final” convictions in order to enhance a defendant jurisdictionally then

obviously they could have included that exact language in the statute. One

must assume that the legislature, in construing §49.09, intentionally left out

the requirement that convictions must be final in order to use them within

the statute; therefore, requiring the State to only prove that an individual

has been previously “convicted”, not “finally” convicted.         To add the

requirement of a “final” conviction would be in direct contradiction to the law

stated in Coit. Id.

                                     - 10 -
      Other jurisdictional enhancement statutes follow the same guidelines

as TEX. Penal Code §49.09(b). Specifically, TEX. Penal Code §31.03, allows

prior “convictions” to be used for purposes of jurisdictionally enhancing theft

charges. Also, TEX. Penal Code §21.01, dictates that convictions, not “final”

convictions, can be used to jurisdictionally enhance assaultive offenses.

      Furthermore, when construing and enacting TEX. Penal Code §49.09,

and in defining “Offense of operating a watercraft while intoxicated” in

§49.09 (c)(3)(C) the legislature specifically included the old statute §31.097

of the Parks and Wildlife Code, the statute under which Appellant had been

previously convicted. The legislative intent to include that as a previous

conviction capable of being used to enhance a current offense under Section

49.04 of the TEX. Penal Code is apparent.

      In citing Ex Parte Murchison, Appellant contends that the prior boating

while intoxicated case, Cause no. 6513, cannot be used to enhance his

current offense to a third degree felony because Appellant successfully

served out his probation for that conviction without ever being revoked. Ex

Parte Murchison, 560 S.W.2d 654, 656 (Tex. Crim. App. 1978).                In

Murchison, the Court of Criminal Appeals held that absent an order revoking

probation, a conviction is not “final” and may not be used for enhancement

                                     - 11 -
purposes. Id. Appellant contends that based on that holding, the operation

of a moving vessel while intoxicated or “boating while intoxicated”- when

probated and not revoked- does NOT operate as an enhancing offense.

      However, the rule established in Murchison pertaining to the use, for

enhancement, of probated prior convictions does not apply here. Id. The

“enhancement” that the holding in Murchison refers to is an enhancement

for punishment under TEX. Pen. Code 12.42 not jurisdictional enhancement

under TEX. Penal Code §49.09. For example, the State may not use a non-

revoked probated conviction to enhance the minimum or maximum

punishment a defendant may receive for a particular charge during the

punishment phase of trial. The prior convictions alleged by the State in the

case at hand do not serve to enhance the punishment range on the DWI

charge but rather enhance the DWI jurisdictionally to a third degree felony

in District Court, therefore distinguishing itself from the rule established in

Murchison.

      The case on point is Gibson v. State, 995 S.W.2d 693,694 (Tex. Crim.

App. 1993). In that opinion, this Court, with a full discussion of the law

surrounding the issue, ruled that a jurisdictional enhancement under TEX.

Penal Code §49.09 is different than a punishment enhancement under TEX.

                                     - 12 -
Penal Code 12.42.       Under TEX. Penal Code §49.09(b), there is no

requirement that the prior convictions be “final” convictions.

Part III

      In response to Appellant’s sole ground for review, even assuming a

“final” conviction is required, under the applicable law at the time, TEX. REV.

CIV. STAT. art. 6701l -1(h) (1991), that obligation is met.

      Appellant contends because his prior conviction was an offense set

forth in former Texas Parks and Wildlife Code, it was not a final conviction.

However, in footnote 4 the Court of Appeals addressed this contention in Ex

Parte Russell Boyd Rae, 2017.Id. Stating, “’TEX. REV CIV. STAT. art 6701l-

1(h) (1991),’ which was the applicable statute at the time of Rae’s 1993

conviction, stating, ‘For the 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’.” Tex. App. LEXIS 5325

(Tex. App. – Texarkana, June 13, 2017). (Citing Rizo v. State, 963 S.W.2d

137, 139 (Tex. App. –Eastland 1997, no pet.).

      In Appellant’s brief, he cites the “application of law or the principle of

stare decisis” based on a 2003 holding by this court in regards to the same


                                     - 13 -
conviction previously used to enhance a DWI in Gregg Co., in Cause No.

74,840, Ex parte Russell Boyd Rae (per curiam decision, December 3, 2003)

However, a simple review of that opinion will support the State’s contention

and reveal that any discussion regarding a requirement that a conviction be

“final” is mere dicta.

      That case, Cause No. 74,840, was an appeal over ineffective assistance

of counsel.    There was zero discussion as to the law governing the

enhancement conviction, only an affirmation of the trial court’s finding that

it was ineffective for the Appellant’s trial counsel not to investigate the prior

conviction.    An in depth analysis of the law governing jurisdictional

enhancements and TEX. Penal Code §49.09(b)(2) at that time would have

required a much greater discussion and a different holding with regard to

the use of the prior conviction for enhancement purposes.

                                CONCLUSION
      The Appellant has failed to adequately request review of the primary

issue decided by the Court of Appeals in Rae, 2017. Id. As stated in the

opinion, the law does not require prior convictions used to enhance a DWI

jurisdictionally under TEX. Penal Code §49.09 to be “final”. The Appellant

has only requested this court to review whether the Court of Appeals erred

                                      - 14 -
in finding that the prior conviction for operating a watercraft while

intoxicated was a final conviction, which was not the issue presented or ruled

upon by the appellate Court

      Additionally, the plain language found in TEX. Penal Code §49.09 and

the case law surrounding the statute clearly illustrates that the State is not

required to prove the prior convictions used to jurisdictionally enhance a DWI

under that statute be “final” convictions. The language is unambiguous on

this issue.

      The opinion issued by this Court in 2003 that involved the use of the

same prior conviction is not on point. The issue in that case was ineffective

assistance of counsel. Any discussion or finding in that opinion concerning

the prior conviction was dicta and is not dispositive in the case at bar.

Therefore, the principle of stare decisis does not require application as

alleged by Appellant.




                                     - 15 -
                                  PRAYER

      Wherefore, upon the issues presented, the State prays that the

opinion of the Sixth Court of Appeals be in all things affirmed.

                                              Respectfully submitted,

                                              s/Ricky Shelton________
                                              Ricky Shelton
                                              Assistant County Attorney
                                              Marion County
                                              102 West Austin, Room 201
                                              Jefferson, TX 75657
                                              (903) 665-2611
                                              (903) 665-3348 Fax
                                              SBOT 24098418
                                              ricky.shelton@co.marion.tx.us




                        CERTIFICATE OF SERVICE

      I certify, by affixing my signature below, I have delivered a true and
correct copy of this brief by certified United States mail, first class postage
prepaid, and return receipt requested, on this the 8th day of November,
2017, to 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 Hough-Lewis Dunn, P.O. Box
2226, Longview, TX 75606 and also sent by electronic means on the same
date.

                                              s/Ricky Shelton_________
                                              Ricky Shelton

                                     - 16 -
                    CERTIFICATE OF COMPLIANCE

     I certify that State’s Brief filed on this the 8th day of November, 2017
complies with Tex. R. App. P. 9. This brief contains 3229 words.

                                             s/Ricky Shelton_________
                                             Ricky Shelton




                                    - 17 -
