                                                                           WR-85,447-0
                                                            COURT OF CRIMINAL APPEAL:
                                                                           AUSTIN, TEXA:
                                                              Transmitted 4/16/2018 9:41 PP
                                                               Accepted 4/18/2018 11:40AP
                                                                      DEANA WILLIAMSOI
                            NO. WR-85,447-01                                        CLERI

                                IN THE                  COURT OF CRIMINAL APPEALS
                  COURT OF CRIMINAL APPEALS              DEANA Cl'Smson, clerk
                         AT AUSTIN, TEXAS




                EX PARTE JEREMY WADE PUE, Applicant



On Art. 11.07 Application for Writ of Habeas Corpus Arising out of Cause
Number CR2008-214-1 in the 207th District Court ofComal County, Texas



                STATE'S MOTION FOR REHEARING




                    ATTORNEY FOR THE STATE


                          Sammy McCrary
                        Chief Felony Prosecutor
                         Comal County, Texas
                        Texas Bar No. 90001990
                     150 N. Seguin Ave., Suite 307
                     New Braunfels, Texas 78130
                          (830) 221-1300
                         (830) 608-2008 (FAX)
                    Email: mccras(£>co.comal.tx..us




                  ORAL ARGUMENT REQUESTED
                                NO. WR-85,447-01

                                     IN THE
                      COURT OF CRIMINAL APPEALS
                              AT AUSTIN, TEXAS




                   EX PARTE JEREMY WADE PUE, Applicant




                    STATE'S MOTION FOR REHEARING




TO THE HONORABLE COURT OF CRIMINAL APPEALS OF TEXAS:


      Comes now the State of Texas, Appellee in the above-entitled and -

numbered cause, and respectfully urges this Court to grant rehearing and deny

relief to the Applicant and in support thereof would show the Court as follows:
                         GROUNDS FOR REHEARING


      The statutory basis for holding that a probated sentence is not "final" was

long ago removed from our law by the Texas Legislature. Furthermore, denying

the use of a conviction followed by a suspended or probated sentence is contrary

to the express purposes of recidivist statutes. For these reasons, the State

respectfully requests that this Court grant rehearing in this matter, hold that

pursuant to Texas law a probated or suspended sentence is "final" for purposes of

enhancement, and deny relief to the Applicant.


                         STATEMENT OF THE CASE


      In 2008, Applicant, Jeremy Wade Pue, was convicted by a jury of the third-

degree felony offense of evading arrest or detention with a vehicle. Because his

sentence was enhanced by two prior California felony convictions, one from 2002

and the other from 2007, the trial court sentenced Applicant to thirty years in

prison as a habitual offender. Subsequently, by way of application for writ of

habeas corpus, Applicant claimed that his thirty-year sentence was illegal because

it had been improperly enhanced by the 2007 California conviction. Ex parte Pue,

No. WR-85,447-01, 2018 Tex. Crim. App. LEXIS 63, at *1 (Crim. App. Feb. 28,

2018). While addressing that issue, by order dated November 1, 2017, this Court

noted that further briefing would be useful and invited both parties to provide this
Court with legal and policy arguments as to whether, for purposes of punishment

enhancement in a Texas prosecution, the "finality" of an out-of-state conviction

should be determined in accordance with the law of the foreign jurisdiction or in

accordance with Texas law. Id. at *3. Ultimately, this Court held that whether

Applicant's 2007 California conviction could have been used as a punishment

enhancement in California did not control whether it was available for use as a

punishment enhancement in Applicant's Texas prosecution. This Court further

held that whether a prior conviction—in-state or out-of-state—is "final" under

Texas Penal Code § 12.42 is to be determined in accordance with Texas law. Id. at

*3-4. As a result, this Court found that Applicant's sentence was improperly

enhanced by the 2007 California conviction and granted relief. Id. at *2. However,

in reaching that conclusion, this Court noted that in its supplemental briefing the

State had argued that most other state and federal courts consider probated

sentences to be final convictions and stated, "We have not been asked to change

our longstanding Texas rule on this issue nor are we persuaded that we should do

so on our own motion." Id. at *5.


      In this motion for rehearing, the State now respectfully asks this Honorable

Court to do exactly that, to find that a probated conviction is a "final" conviction

under Texas law and deny relief to Applicant.
                  History ofthe View That a Suspended or
               Probated Sentence Is Not a Final Conviction

      As this Court recognized in its original opinion, there are numerous cases

dating back almost one hundred years that seem to stand for the proposition that a

probated sentence is not a "final" conviction for purposes of enhancement under

Texas law.    Although this proposition might seem well established and

unquestionable on its face, a review of its origins reflects that the basis for this

proposition ceased to exist many years ago. The earliest case cited by this Court

was the 1919 opinion rendered in Brittian v. State, 214 S.W. 351 (Tex. Crim. App.

1919). See Ex parte Pue, 2018 Tex. Crim. App. LEXIS 63 at *5. However,

Brittian cites back to a case decided the previous month, Ex parte Coots, 212 S.W.

173 (Tex. Crim. App. 1919).

      In Coots, a jury had convicted the defendant of a felony and sentenced him

to a term of three years in the penitentiary. Id. at 173. However, at the same time,

the jury gave the defendant the benefit of a suspended sentence. Id. Three and a

half years later, the defendant was charged with another felony. Id. The defendant

was convicted and sentenced for that subsequent felony. Id. Additionally, when

the trial court entered judgment upon the subsequent felony, the court also found

that the defendant had forfeited the suspension of the sentence for the former

conviction, sentenced the defendant for that offense, and cumulated that sentence
with the sentence imposed for the subsequent offense. Id. By way of a writ of

habeas corpus, the defendant challenged the revocation of his suspended sentence

for his first felony conviction because its term had expired prior to his commission

of the second felony. Id. Thus, a review of the facts in Coots makes it clear that the

use of a prior conviction for purposes of enhancement was not the issue before the

Court. Instead, in Coots, the Court of Criminal appeals was merely asked to decide

if a suspended sentence could be revoked after its term had expired. Id.

      Although the finality of a probated sentence used for enhancement was not

the issue faced by the Court in Coots, the Court's opinion in Coots does explain

where the doctrine that a conviction wherein the sentence was suspended was not

final originated. In the opinion, the Court explained that Article 865c, Vernon's

Criminal Statutes, provided that where a suspended sentence was awarded,

"neither the verdict of conviction nor the judgment entered thereon shall become

final, except under the conditions and in the manner and at the time provided for

by section 4 of this Act." Id. at 173-74. Article 865d, Vernon's Criminal Statutes

further provided that:

      When sentence is suspended the judgment of the court on that subject
      shall be that sentence of the judgment of conviction shall be
      suspended during the good behavior of the defendant. By the term
      'good behavior' is meant that the defendant shall not be convicted of
      any felony during the time of such suspension.
Id. at 174. Additionally, Section 4 of said act as referred to in Article 865c was

found set out in Article 865e, Vernon's Criminal Statutes. It provided that:

       Upon the final conviction of the defendant of any other felony,
       pending the suspension of sentence, the court granting such
       suspension shall cause a capias to issue for the arrest of the
       defendant, if he is not then in the custody of such court, and upon the
       execution of a capias, and during a term of the court shall pronounce
       sentence upon the original judgment of conviction, and shall
       cumulate the punishment of the first with the punishment of any
       subsequent conviction or convictions, and in such cases no new trial
       shall be granted in the first conviction.

Id. Based on this statutory scheme, as cited by the Court in Coots, it becomes clear

that a conviction where the sentence was suspended was not a final conviction

because the legislature said so by way of a specific statute in Article 865c,

Vernon's Criminal Statutes. Basically, if a defendant was convicted of another

felony during the period of suspension, his suspended sentence was revoked and

he forfeited all benefits of such suspension. It was only then that his conviction

became "final." Id. at 173-74.


       The State's "Suspended Sentence Law" cited by the Court in Coots was

enacted by the Legislature1 and unofficially codified as Articles 865b through 865i

of the 1911 Code. See Vernon's Criminal Statutes of Texas (1916). Throughout

the years, Articles 865b through 865i were revised and moved on a number of



1See Acts 1913, 33rd Leg., p. 8, ch. 7, available athttp://www.lrl.state.tx.us/LASDOCS/33R
/SB5/SB5_33R.pdf#page=l .

                                              7
occasions. Eventually, the "Suspended Sentence Law" became what is today

known as Article 42.12 of the Texas Code of Criminal Procedure. Through those

many revisions, the Legislature eventually dropped the language found in Article

865c which stated that "neither the verdict of conviction nor the judgment entered


  This statute was first enacted by the Legislature in 1911. See, Acts 1911, 32nd Leg., p. 67, ch.
44. In that year, the fourth revision of our Code of Criminal Procedure was also passed, and
consequently, the new law was not assigned an official place in the revised Code. In 1912, the
Act was declared unconstitutional by this Court in Snodgrass v. State, 150 S.W. 162 (1912) and
Snodgrass v. State, 150 S.W. 178 (1912). A substantially revised version was, therefore,
reenacted a year later (Acts 1913, 33rd Leg., p. 8, ch. 7), and unofficially codified as Articles
865b through 865i of the 1911 Code. See Vernon's Criminal Statutes of Texas (1916). The
constitutionality of this Act was upheld the same year in Baker v. State, 158 S.W. 998 (1913).
When the Code of Criminal Procedure was again revised in 1925, the Legislature officially
codified the "Suspended Sentence Law" as Articles 776 through 781, and authorized the new
Code to be published under a separate cover with the revised Penal Code. See Acts 1925, 39th
Leg., p. 282, ch. 104, available at http://www.lrl.state.tx.us/LASDOCS/39R/SB382/SB382
_39R.pdf#page=12 . Article 776a was added in 1931 (Acts 1931, 42nd Leg., p. 65, ch. 43, § 4,
available at http://www.lrl.state.tx.us/LASDOCS/42R/SB53/SB53_42R.pdf#page=21) and
Articles 777 and 779 were amended in 1941. See Acts 1941, 47th Leg., p. 1334, ch. 602,
available at http://www.lrl.state.tx.us/LASDOCS/47R/SB 127/SB127_47R.pdf#page=l 3 .

In 1947, the first "Adult Probation and Parole Law" passed the Legislature, without repealing the
"Suspended Sentence Law" (Acts 1947, 50th Leg., p. 1049, ch. 452, available at
http://www.lrl.state.tx.us/LASDOCS/50R/HB120/HB120_50R.pdf#page=100),                  and     was
unofficially codified as Article 781b in Vernon's Texas Code of Criminal Procedure (1925).
Section 17 of the Act was repealed in 1953. See Acts 1953, 53rd Leg., p. 489, ch. 175, § 2,
available at http://www.lrl.state.tx.us/LASDOCS/53R/SB217/SB217_53R.pdf#page=ll). Four
years later, the "Adult Probation and Parole Law of 1957" repealed and replaced the 1947 Act, as
amended, but again expressly exempted from repeal the "Suspended Sentence Law." See Acts
1957, 55th Leg., p. 466, ch. 226, available at http://www.lrl.state.tx.us/LASDOCS/55R/SB154
/SB154_55R.pdf#page=119. This statute was then codified unofficially as Article 781d of
Vernon's Texas Code of Criminal Procedure (1925). The Act was then further amended in 1959.
See Acts 1959, 56th Leg., p. 1081, ch. 492, § 1, available at http://www.lrl.state.tx.us/LASDOCS
/56R/HB581/HB581_56R.pdf#page=l 1 . Finally, as a part of the current revision of the Code of
Criminal Procedure, the "Adult Probation and Parole Act of 1957," as amended, was officially
codified as Art. 42.12 of the Code. See Acts 1965, 59th Leg., vol. 2, p. 317, ch. 722, available at
http://www.lrl.state.tx.us/LASDOCS/59R/SB 107/SB107_59R.pdf#page=840 . Also at this time,
the "Suspended Sentence Law" was deleted from the statutes by a general repealer section. Since
1965, Art. 42.12 has been amended by the Legislature more than 50 times.

                                                8
thereon shall become final, except under the conditions and in the manner and at

the time provided for by section 4 of this Act."

      It is a general rule of statutory construction that when the legislature amends

a particular statute and omits certain language of the former statute in its amended

version, the legislature specifically intended that the omitted portion is no longer

the law. Every word excluded from a statute must be presumed to have been

excluded for a reason. Morrison v. Chan, 699 S.W.2d 205, 208 (Tex. 1985). In

enacting an amendment the Legislature is presumed to have changed the law, and

a construction should be adopted that gives effect to the intended change, rather

than one that renders the amendment useless. Ex parte Trahan, 591 S.W.2d 837,

842 (Tex. Crim. App. 1979). However, although the statutory language providing

that a conviction wherein the sentence is suspended in not "final" has long been

omitted from the law, Texas Courts have stubbornly continued to hold that a

probated judgment is not "final" and, therefore, cannot be used for purposes of

enhancement.


      An excellent discussion of the reasons why a probated conviction should

now be considered "final" was provided by Judge Teague in his dissenting opinion

in Ex parte Renter. 1987 Tex. Crim. App. LEXIS 742, *59-63, 734 S.W.2d 349
(Tex Crim. App. 1987) (Teague, J., dissenting). Judge Teague noted that, under

the "Suspended Sentence Law," this Court had "consistently held that there is no

appeal from a suspended sentence because it is not a final judgment from which an

appeal may be taken." Id. (citing Lamkin v. State, 138 Tex. Crim. 311, 136 S.W.2d

225 (1940)). Instead, a judgment became final and appealable only if and when

the suspended sentence was revoked. Judge Teague explained that this procedure

caused long delays between the trial of a cause and its appeal, subjecting the

ultimate validity of a conviction to direct review years after it had been entered,

and to considerable uncertainty during the interim. As a result, the Legislature

eventually acted to remove that uncertainty when the Adult Probation and Parole

Law, Art. 781b, Vernon's Texas Code of Criminal Procedure (1925), was enacted.

At that time, the Legislature expressly provided that a probationer could appeal his

conviction at the time he was placed on probation.

       Subsequently, in Gossett v. State, this Court held that it was lawful for the

Legislature to provide for the appeal of a conviction prior to the pronouncement or

imposition of sentence. 282 S.W.2d 59 (Tex. Crim. App. 1955). Judge Teague

noted that, since that opinion, no probationer had been denied the right to appeal a

judgment of conviction against him upon the ground that such a conviction was



3Superseded by statute on other grounds as stated in Ex parte Ramirez, No. 08-13-00194-CR,
2014 Tex. App. LEXIS 499, at *5 (App.—El Paso Jan. 15, 2014).

                                            10
not final until his probation had been revoked. Renter, 1987 Tex. Crim. App.

LEXIS 742 at *60-61. However, he also recognized that in a line of cases

beginning with Fetters v. State (1 S.W.2d 312, 313 (Tex. Crim. App. 1927)), this

Court had held that a defendant's punishment could not be enhanced with a prior

suspended sentence based upon the notion that an unappealable conviction was

not yet final. He explained that Article 42.12, Sec. 8(b), V.A.C.C.P., and

Tex.R.App.Proc. 41(b)(1), provided that a judgment of conviction was fully

complete in the trial court, and thus appealable, even if the imposition of sentence

had been suspended. Id. at *54-55. Therefore, unlike under the prior Suspended

Sentence Law, the judgment of conviction was not prevented from becoming

"final" in the sense contemplated by Fetters. He then stated, "[nevertheless, for

reasons not apparent on the face of our more recent opinions, we have continued

to cite Fetters for the long obsolete proposition that an ordinary probationer has

not yet been finally convicted." Id. at *63.

      It is also notable that Texas is not the only state whose law has followed this

pattern of evolution. It appears that the laws of Pennsylvania followed a similar

progression. In Commonwealth ex rel. Trotter, v. Hendrick, the defendant argued

that the suspended sentence imposed for his earlier offense did not satisfy the strict

legal definition of the word "conviction" to make him subject to a greater penalty

as a second or subsequent offender. 177 A.2d 162, 163 (Pa. Super. 1962).

                                          11
Addressing that argument, the Superior Court of Pennsylvania noted that although

at common law and in present day common parlance a person is considered

convicted when he enters a plea of guilt or a jury returns a guilty verdict, in many

cases - including cases where punishment is being increased due to a previous

conviction - something more is necessary to identify an accused as a convicted

offender. The Court recognized that the purpose served by requiring something

more than a plea of guilty or a verdict of guilty was to assure an accused a final

determination of his guilt before he was thereafter subjected to exceptional or

enhanced penalties based on such conviction. The Court also noted that earlier

decisions held that this could not be accomplished when the imposition of

sentence was suspended and the person placed on probation, because for many

years it was the practice to quash appeals taken from suspended sentences as they

were deemed to be interlocutory. However, in Commonwealth v. Elias, the

Supreme Court of Pennsylvania recognized that an accused whose trial resulted in

a suspended sentence and probation might never be able to establish his

innocence, however erroneous the verdict against him might be. 149 A.2d 53, 54-

55 (1959). As a result, the Supreme Court held that persons who had received a

suspended sentence and been placed on probation were also to be afforded a right

of appeal. Id. In Commonwealth ex rel. Trotter v. Hendrick, the Superior Court

explained that, after the decision in Commonwealth v. Elias, an accused was

                                        12
entitled to have the propriety of his "conviction" determined without his probation

ever having been revoked. As a result, the Court concluded that the suspended

sentence imposed for the defendant's earlier offense had properly been used to

subject him to a greater penalty as a second or subsequent offender.

Commonwealth ex rel. Trotter v. Hendrick, ill A.2d 162, 163-164 (Pa. Super.

1962).



     Purposes ofthe Penal Code Generally and Recidivism Statutes
                            Specifically

         The Texas Penal Code specifically provides that its provisions "are

intended, and shall be construed, to achieve the following objectives: (1) to insure

the public safety through: (A) the deterrent influence of the penalties hereinafter

provided; (B) the rehabilitation of those convicted of violations of this code; and

(C) such punishment as may be necessary to prevent likely recurrence of criminal

behavior." Tex. Penal Code § 1.02. The Texas Penal Code also provides that the

rule that a penal statute is to be strictly construed does not apply to it. Instead, it

specifically states that, "The provisions of this code shall be construed according

to the fair import of their terms, to promote justice and effect the objectives of the

code." Tex. Penal Code §1.05.

         Under a recidivist statute, a sentence is "based not merely on that person's

most recent offense but also on the propensities he has demonstrated over a period
                                          13
of time during which he has been convicted of and sentenced for other crimes."

Rummel v. Estelle, 445 U.S. 263, 284 (1980). A state with a recidivist statute is not

required to treat a defendant as if an offense was his first but is entitled to place

upon the defendant "the onus of one who is simply unable to bring his conduct

within the social norms prescribed by the criminal law of the State." Id. at 284.

"[The] primary goals [of a recidivist statute] are to deter repeat offenders and, at

some point in the life of one who repeatedly commits criminal offenses serious

enough to be punished as felonies, to segregate that person from the rest of society

for an extended period of time." Id. Within the Texas Penal Code, there are several

recidivist statutes that provide for more harsh punishments for those who have

previously violated the law. See Tex. Penal Code §12.42 and §12.43. This Court

has specifically recognized that the legislative purpose behind §12.42 is to "punish

more harshly persons who repeatedly commit crime." Jordan v. State, 256 S.W.3d

286, 293 (Tex. Crim. App. 2008).

      A defendant who has repeatedly committed felonies, pled or been found

guilty of committing those crimes, and been placed on community supervision has

certainly repeatedly committed crimes. The fact that such a defendant has been

given the benefit of suspended or probated sentences does nothing to change the

fact that they have chosen to repeatedly violate the law. Considering the objectives

of the Penal Code in general and our recidivist statutes specifically, it seems

                                         14
obvious that requiring such a suspended or probated sentences to be revoked

before the defendant's convictions are considered "final" under §12.42 does not

further those objectives. It would "simply beg logic and common sense to say that

a person adjudicated guilty of an offense who is fined, ordered imprisoned, with

execution 'suspended'. .. has not been convicted" for purposes of forming a

predicate offense under the habitual offender statute. Whiteman v. State, 846 A.2d

239 (Del. 2004). Thus, a clear majority of the other states (and the federal system)

consider convictions wherein a defendant receives a suspended or probated

sentence to be "final" and allow for such convictions to be used to enhance the


penalties imposed for subsequent offenses.4



4See, e.g., Alabama {Johnson v. State, 398 So. 2d 393, 399 (Ala. Crim. App. 1981)), Alaska
{Shaw v. State, 673 P.2d 781, 786 (Alaska App. 1983)), Arizona {State v. Robison, 408 P.2d 29
(1965)), Arkansas {Rolark v. State, 772 S.W.2d 588 (1989)), California {People v. Banks, 348
P.2d 102 (1959), People v. Balderas, 711 P.2d 480 (1985)), Delaware {Wehde v. State, 983 A.2d
82 (Del. 2009)), Florida {State v. Richardson, 915 So.2d 86 (Fla. 2005)), Georgia {Bennett v.
State, 208 S.E.2d 181 (1974)), Hawai'i (Haw. Rev. Stat. Ann § 706-666 (West, Westlaw through
2017 1st S.S.) (commentary notes suspended sentence is immaterial)), Indiana (Ind. Code Ann.
§ 35-50-2-8 (West, Westlaw through 2017) (it appears probation does not preclude use of the
Indiana "prior"conviction)), Iowa {State v. Ueding, 400 N.W.2d 550 (Iowa 1987)), Kansas
{State v. Robertson, 592 P.2d 460, 463 (1979)), Kentucky {Winn v. Commonwealth, Ky., 303
S.W.2d 275 (1957)), Louisiana (La. Code Crim. Proc. Ann. art. 893 (West, Westlaw through
2017 S.E.S.), Michigan {People v. Funk, 33 N.W.2d 95 (1948); People v. Justice, 550 N.W.2d
562, 567 (1996)), Mississippi {Green v. State, 802 So.2d 181, 183 (Miss. Ct. App. 2001) (one of
two enhancement statutes does not require actual incarceration); Davis v. State, 5 So.3d 435, 441
(Miss. Ct. App. 2008)), Missouri {State v. Whipple, 501 S.W.3d 507, 522 (Mo. Ct. App. 2016)),
New Jersey {State v. McCall, 99 A.2d 153 (App. Div. 1953), reversed on another point, 103
A.2d 376 (1954); N.J. Stat. Ann. § 2C:44-4 (West, Westlaw through 2017)), New Mexico {State
v. Larranaga, 424 P.2d 804, 805 (1967)), Oregon {State v. Glenn, 420 P.2d 60 (1966)),
Pennsylvania {Com. ex rel. Trotter v. Hendrick, 177 A.2d 162, 164 (1962)), Rhode Island

                                               15
                                      ARGUMENTS


       It is clear that the concept that a conviction followed by a suspended

sentence is not "final" and, therefore, unavailable to enhance or increase the

punishment for subsequent offenses is contrary to the basic purposes of recidivist

statutes. Furthermore, the statutory basis for concluding that a conviction with a

suspended sentence is not "final" was long ago removed by the Texas Legislature.

Although Texas Courts have long failed to recognize that significant change in the

law and continued to hold that a probated conviction is unavailable for purposes of

enhancement, "[t]he rule of stare decisis, has but little application in criminal

jurisprudence, and ought to have none when wrong and tending to overturn the

plainly written law. Adjudicated error persisted in cannot make truth of that error."

Cline v. State, 36 S.W. 1099, 1099 (Tex. Crim. App. 1896).

       When the legislature amended the statutes governing suspended sentences

and omitted the language of the former statute stating that, "neither the verdict of

conviction nor the judgment entered thereon shall become final, except under the

conditions and in the manner and at the time provided for by section 4 of this Act"



{State v. Burke, 811 A.2d 1158, 1167 (R.I. 2002)), South Carolina {State v. Sosbee, 637 S.E.2d
571, 574 (Ct. App. 2006); State v. Spratt, 2013-UP-186, 2013 WL 8508095, at *1 (S.C. Ct. App.
May 8, 2013) (not designated for publication)), South Dakota {Whitepipe v. Weber, 536
F.Supp.2d 1070, 1090 (D.S.D. 2007)), Washington {State v. Braithwaite, 600 P.2d 1260 (1979),
overruled on other grounds, 670 P.2d 256 (1983); State v. Carlyle, 576 P.2d 408, 412-13
(1978)), Wisconsin (Wis. Stat. Ann. § 939.62(2) (West, Westlaw through 2017)); see also
Federal System {Davis v. Estelle, 502 F.2d 523, 524 (5th Cir. 1974)).

                                             16
in its amended version, the legislature specifically intended that the omitted

portion was no longer the law. Morrison v. Chan, 699 S.W.2d at 208. For these

reasons, this Court should hold that convictions with suspended or probated

sentences are "final" and may be used for purposes of enhancement.


                           PRAYER FOR RELIEF


      For all the foregoing reasons, the State respectfully prays that this

Honorable Court grant rehearing in this matter, hold that pursuant to Texas law a

probated or suspended sentence is "final" for purposes of enhancement, and deny

relief to the Applicant.

                                                 Respectfully submitted,


                                                 Isi Sammy McCrary
                                                 Sammy McCrary
                                                 Chief Felony Prosecutor
                                                 Comal County, Texas
                                                 T.B.C No. 90001990
                                                  150 N. Seguin Ave., Suite 307
                                                 New Braunfels, Texas 78130
                                                 (830)221-1300
                                                 (830) 608-2008 (FAX)
                                                 Email: mccras@co.comal.tx..us
                                                 Attorney for the State




                                       17
            CERTIFICATE OF COMPLIANCE WITH RULE 9.4


      I hereby certify that this document complies with the requirements of Tex.

R. App. Proc. 9.4(i)(2)(D) because there are 4,163 (a number less than 4,500)

words in this document, excluding the portions of the document excepted from the

word count under rule 9.4(i)(l), as calculated by the MS Word computer program

used to prepare it. The document was prepared in proportionally-spaced typeface

using Times New Roman 14 for text and Times New Roman 12 for footnotes.

                                                   /s/ Sammy McCrary
                                                   Sammy McCrary
                                                   Chief Felony Prosecutor
                                                   Comal County, Texas


                         CERTIFICATE OF SERVICE


      I hereby certify that on April 16l , 2018, a true and correct copy of the

foregoing Motion for Rehearing was delivered by electronic mail to:

      John C. Moncure
      John.Moncure@tdcj .texas.gov
      P.O. Box 4005
      Huntsville, TX 77342-4005
      Fax:(512)406-5960
      Attorney for Applicant

At the forgoing email address through efile.txcourts.gov.

                                                   /s/ Sammy McCrary
                                                   Sammy McCrary
                                                   Chief Felony Prosecutor
                                                   Comal County, Texas

                                        18
