                                                                          PD-0315-15
               PD-0315-15                               COURT OF CRIMINAL APPEALS
                                                                         AUSTIN, TEXAS
                                                        Transmitted 4/22/2015 4:17:06 PM
                                                         Accepted 4/23/2015 10:09:46 AM
       PETITION FOR DISCRETIONARY REVIEW                                  ABEL ACOSTA
                                                                                  CLERK
                           OF
                    NO. 01-11-00210-CR

       IN THE COURT OF CRIMINAL APPEALS


                   WALTER EARL TAYLOR
                        Appellant

                            v.

                   THE STATE OF TEXAS
                         Appellee


      On Appeal from Cause Number 10CR1215
From the 56th District Court of Galveston County, Texas



       PETITION FOR DISCRETIONARY REVIEW



                      APRIL 22, 2015

                                       DAVID SUHLER

                                       P.O. Box 540744

                                       Houston, Texas 77254-0744

                                       (713) 522-1220
  April 23, 2015
                                       Bar Card No. 19465900

                                       Attorney for Appellant
                IDENTITY OF PARTIES AND COUNSEL

APPELLANT:                             Mr. Walter Earl Taylor

TRIAL PROSECUTORS:                     Ms. Allison Lindblade
                                       Assistant District Attorney
                                       600 51st St., Ste. 1001
                                       Galveston, TX 77551

                                       Ms. Rebecca Russell
                                       Assistant District Attorney
                                       600 51st St., Ste. 1001
                                       Galveston, TX 77551

DEFENSE COUNSEL AT TRIAL:              Ms. Andrea Harge Sadler
                                       1110 N. Loop 336 East, Ste. 500
                                       Conroe, Texas 77301

                                       Mr. Jeffrey Gelb
                                       2209 Ave. K
                                       Galveston, Texas 77550

TRIAL COURT JUDGE:                     Hon. Lonnie Cox
                                       56th District Court
                                       Galveston County, Texas

COUNSEL ON APPEAL FOR APPELLANT:       David Suhler
                                       P.O. Box 540744
                                       Houston, Texas 77254-0744

COUNSEL ON APPEAL FOR APPELLEE:        Mr. Jack Roady
                                       District Attorney
                                       600 51st St., Ste. 1001
                                       Galveston, TX 77551



                               2
                                                 TABLE OF CONTENTS


IDENTITY OF PARTIES AND COUNSEL .................................................................................. 2
TABLE OF CONTENTS ............................................................................................................. 3
INDEX OF AUTHORITIES ........................................................................................................ 5
STATEMENT REGARDING ORAL ARGUMENT ...................................................................... 6
STATEMENT OF THE CASE ..................................................................................................... 6
STATEMENT OF PROCEDURAL HISTORY .............................................................................. 6
GROUNDS FOR REVIEW.......................................................................................................... 6
STATEMENT OF FACTS............................................................................................................ 7
SUMMARY OF THE ARGUMENT .............................................................................................. 9
ARGUMENT ............................................................................................................................ 11
      GROUND ONE ................................................................................................. 11
      MR. TAYLOR’S DUE PROCESS RIGHTS WERE VIOLATED BECAUSE A FORENSIC
      SCIENTIST DID NOT FOLLOW ACCEPTED STANDARDS WHEN ANALYZING
      EVIDENCE AND THEREFORE THE RESULTS OF HIS ANALYSES ARE
      UNRELIABLE. .................................................................................................. 11
      GROUND TWO ................................................................................................. 11
      LEGISLATIVE INTENT AND STATUTORY INTERPRETATION RULES MAKE CLEAR
      THAT A STATE JAIL FELONY SHOULD NOT BE USED TO ENHANCE
      PUNISHMENT TO A HABITUAL OFFENDER LEVEL. .......................................... 11
      The prior statute is ambiguous............................................................................... 12
      The interpretation from the ruling in Samaripas leads to absurd results.... 13
      State jail felony punishments always derive from TEX. PEN. CODE § 12.35. 14
      The terms ‘felony’ and ‘state jail felony’ are mutually exclusive. .................. 14
      GROUND THREE ............................................................................................ 15
      THIS COURT’S RULING IN SAMARIPAS IS INCONSISTENT WITH PRIOR RULINGS.
      THE RULING IN SAMARIPAS DID NOT OVERRULE THOSE CASES, AND NEEDS
      CLARIFICATION............................................................................................... 15
      The rulings in Samaripas and Campbell are inconsistent. .............................. 15
      The rulings in Samaripas and Webb are inconsistent. ..................................... 16
      The ruling in Samaripas is inconsistent with Ford and Reinke..................... 16
                                                                   3
      Policy concerns support disallowing this enhancement. ................................. 17
PRAYER FOR RELIEF ............................................................................................................. 19
APPENDICES .......................................................................................................................... 20




                                                                   4
                                                  INDEX OF AUTHORITIES

Cases

Arriola v. State, 49 S.W.3d 374, 375-76 (Tex. App.—Fort Worth 2000, pet. ref’d) ...... 17

Baird v. State, 398 S.W.3d 220, 229 (Tex.Crim.App.2013) ............................................... 12

Campbell v. State, 49 S.W.3d 874 (Tex.Crim.App.2001) .............................................passim

Ex Parte Patrick Lynn Hobbs, AP-76, 980 (Tex.Crim.App. March 6, 2013)................ 9, 11

Ex Parte Reinke, 370 S.W.3d 387 (Tex. Crim. App. 2012) ...................................10, 16, 17

Ford v. State, 334 S.W.3d 230 (Tex. Crim. App. 2011) ..........................................10, 16, 17

Hadnot v. State, 851 S.W.2d 378, 379 (Tex. App.—Houston [1st Dist.] 1993, pet. ref’d)

   ............................................................................................................................................. 17

Samaripas v. State, --- S.W.3d ---- (Tex.Crim.App.2014). ...........................................passim

State v. Hardy, 963 S.W.2d 516, 520 (Tex.Crim.App.1997) .............................................. 14

State v. Webb, 12 S.W.3d 808 (Tex.Crim.App.2000)..............................................10, 12, 16

Statutes

TEX. PEN. CODE § 12.35 ........................................................................................... 9, 14, 15

TEX. PEN. CODE § 12.42 ..............................................................................................passim

Other Authorities

Bill Analysis, H.B. 3384 Engrossed Version, 82nd Leg. R.S. (May 19, 2011) ................ 12

Linda D. Jellum & David Hricik, Modern Statutory Interpretation 94 (2nd ed. 2009) ....... 12



                                                                        5
                    STATEMENT REGARDING ORAL ARGUMENT

       Oral argument is not requested.

                             STATEMENT OF THE CASE

       Mr. Taylor was charged with possessing 4-200 grams of cocaine with two

enhancement counts, one being a prior state jail felony possession of cocaine. (C.R. at

2). Taylor entered a plea of “not guilty.” (C.R. at 5). After a jury trial, Taylor was

found guilty and sentenced by a jury to twenty five (25) years in prison. (C.R. 90).

Taylor filed a motion for new trial. (C.R. 105-07). The trial court denied this motion.

(C.R. 6).

                      STATEMENT OF PROCEDURAL HISTORY

       Taylor timely appealed his case, and the trial court’s ruling was affirmed by the

Court of Appeals for the First District of Texas on November 29, 2012. Taylor filed a

motion for rehearing on January 2, 2013, which was granted on September 3, 2014.

The same panel issued a new opinion, again affirming the trial court’s ruling on

February 19, 2015, basing its decision on this court’s ruling in Samaripas v. State, ---

S.W.3d ---- (Tex.Crim.App.2014).

                               GROUNDS FOR REVIEW

                                    GROUND ONE

       MR. TAYLOR’S  DUE PROCESS RIGHTS WERE VIOLATED BECAUSE A
       FORENSIC SCIENTIST DID NOT FOLLOW ACCEPTED STANDARDS WHEN
       ANALYZING EVIDENCE AND THEREFORE THE RESULTS OF HIS
       ANALYSES ARE UNRELIABLE.

                                           6
                                   GROUND TWO

      SHOULD   STATUTORY INTERPRETATION RULES AND ORIGINAL
      INTENT AND PURPOSE OF THE ENHANCEMENT STATUTES ALLOW THE
      USE OF A STATE JAIL FELONY FOR ENHANCEMENT TO A HABITUAL
      OFFENDER LEVEL?

                                  GROUND THREE

      THIS COURT’S RULING IN SAMARIPAS CREATED INCONSISTENT
      INTERPRETATIONS THAT NEED TO BE CLARIFIED.


                                  STATEMENT OF FACTS

      The lab technician involved in this case was Jonathan Salvador. He was

discharged from DPS for not following accepted standards when testing drug

evidence.

      The trial court applied two enhancements to the punishment of Mr. Taylor at

his trial. (C.R. 2). The first is a 2004 conviction for intent to deliver a controlled

substance. (C.R. 2). The second is a 2009 conviction of mere possession of a

controlled substance. (C.R. 2). This petition only brings into question this second

enhancement.

      In 2009, Mr. Taylor was convicted of possession of a controlled substance.

(Appendix C pg. 2). An information was filed on March 9, 2009 and included two

enhancements. (Appendix C pg. 1). Mr. Taylor was convicted just one day later to two

years in prison. (Appendix C pg. 2). On his conviction judgment, in the slot for a

defense attorney, the name Troy Pradia is crossed out and Bill Leathers is written next

                                          7
to that cross out. (Appendix C pg. 2). Within 24 hours, Mr. Taylor had an information

filed against him, an attorney appointed (with questions as to who was appointed),

and pled guilty with a two year sentence. (Appendix C pg. 2). This offense was a state

jail felony, with his punishment enhanced to that for a second degree felony.

      However, the paperwork and clerk’s website indicate this charge was a second

degree felony. In 2009, the trial court, district clerk, and whoever was actually present

as Mr. Taylor’s defense counsel did not ensure that the charge was input as a state jail

felony with his punishment enhanced to a second degree felony.

      The trial court in Mr. Taylor’s present case used this charge as if it was a second

degree felony for enhancement of punishment. This made Mr. Taylor a habitual

offender, with a minimum sentence of 25 years in prison.




                                           8
                            SUMMARY OF THE ARGUMENT

        Jonathan Salvador’s improper forensic testing in this case led to a violation of

Mr. Taylor’s due process rights. Ex Parte Patrick Lynn Hobbs, AP-76, 980

(Tex.Crim.App. March 6, 2013).

        The statute at question is ambiguous for three reasons. Because of the

ambiguity, this court should follow legislative history. The legislative history for the

amended statute shows that the current wording of the statute makes its effect more

clear than before. The clarified statute shows that the legislature never intended a

non-aggravated state jail felony to be used for felony enhancement resulting in

habitual offender punishment.

        Even if this court finds the statute to be unambiguous, the interpretation put

forth by the first court of appeals and by this court’s ruling in Samaripas v. State, ---

S.W.3d ---- (Tex.Crim.App.2014) would lead to absurd results, as exemplified by this

case.

        Even if this court finds that only the plain meaning of the statute will apply,

this court’s interpretation in Samaripas and the first court of appeals’ interpretation do

not analyze all the words of the statutes to apply plain meaning. TEX. PEN. CODE §

12.42(e) only excludes potential enhancements. TEX. PEN. CODE § 12.35 creates the

original power for punishment and it should be analyzed as well as the plain language

of the titles of the applicable sections. Further, the courts in these two cases have



                                            9
ignored the plain meaning that the words ‘felony’ and ‘state jail felony’ are mutually

exclusive.

       Even if this court finds the statutes in question are unambiguous and will only

analyze the word ‘punished’ from § 12.42(e), implications from this court’s rulings in

Campbell v. State, 49 S.W.3d 874 (Tex.Crim.App.2001) and State v. Webb, 12 S.W.3d 808

(Tex.Crim.App.2000) are directly inconsistent with its ruling in Samaripas. The ruling

in Samaripas also does not follow the reasoning from the rulings in Ford v. State, 334

S.W.3d 230 (Tex. Crim. App. 2011) and Ex Parte Reinke, 370 S.W.3d 387 (Tex. Crim.

App. 2012). The first court of appeals based its opinion in this case on the ruling in

Samaripas. Further clarification is needed to rectify these inconsistencies in the law.

       Finally, policy considerations support disallowing an enhancement to the

habitual offender level in this case.




                                            10
                                       ARGUMENT
                                      GROUND ONE
       MR. TAYLOR’S  DUE PROCESS RIGHTS WERE VIOLATED BECAUSE A
       FORENSIC SCIENTIST DID NOT FOLLOW ACCEPTED STANDARDS WHEN
       ANALYZING EVIDENCE AND THEREFORE THE RESULTS OF HIS
       ANALYSES ARE UNRELIABLE.

       A Department of Public Safety report (12 R.R. 43; Appendix A) shows that the

lab technician who was solely responsible for testing the evidence in this case is the

scientist that committed misconduct. Even if there is evidence remaining that is

available to retest in this case, that evidence was in the custody of the lab technician in

question. His actions are not reliable; Mr. Taylor’s custody was compromised,

resulting in a due process violation. Ex Parte Patrick Lynn Hobbs, AP-76, 980

(Tex.Crim.App. March 6, 2013); 12 R.R. 43 (Appendix A).

                                      GROUND TWO
       LEGISLATIVE INTENT AND STATUTORY INTERPRETATION RULES
       MAKE CLEAR THAT A STATE JAIL FELONY SHOULD NOT BE USED TO
       ENHANCE PUNISHMENT TO A HABITUAL OFFENDER LEVEL.

       This case is dictated by the prior enhancement statute found in TEX. PEN.

CODE § 12.42(d) and (e). That enhancement statute was amended, effective Sept. 1,

2011. The most substantial legislative history for this amendment reads:

       The parties note that legislation is needed to clarify the meaning [of]

       those provisions and to specify that the felonies do not include state

       jail offenses that are not aggravated. H.B. 3384 seeks to remain true


                                            11
       to the intent of the legislature when it created the lower-level

       category of state felony offenses and to retain the special treatment given

       to state jail offenses punishable as aggravated state jail felonies.

       Bill Analysis, H.B. 3384 Engrossed Version, 82nd Leg. R.S. (May 19,

       2011) (emphasis added) (see Appendix B).

The prior statute is ambiguous.

       Ambiguity exists in a statute if it “is reasonably susceptible to more than one

understanding.” Baird v. State, 398 S.W.3d 220, 229 (Tex.Crim.App.2013); Samaripas v.

State, --- S.W.3d ----, *7 (Tex.Crim.App.2014) (Keller, P.J., dissenting). A statute is

ambiguous if two different meanings could be interpreted from it. Id; Linda D. Jellum

& David Hricik, Modern Statutory Interpretation 94 (2nd ed. 2009). The statute in

question is ambiguous for three reasons:

       1) This court’s own judges applied at least two different meanings to the statute

in the ruling in Samaripas v. State, --- S.W.3d      ----   (Tex.Crim.App.2014) (see also

Keller, P.J., dissent).

       2) This court has applied different meanings to this statute in other cases. See

Campbell v. State, 49 S.W.3d 874 (Tex.Crim.App.2001); State v. Webb, 12 S.W.3d 808

(Tex.Crim.App.2000).

       3) The legislature realized it was ambiguous enough to require clarification

through the need to pass an amendment. See H.B. 3384. Here, the legislature has

clarified their statutory meaning by passing a new law since their intent was not met,
                                             12
making it now easier for the courts to know their original intent. The legislator’s

original intent is to disallow such an enhancement as in this case.

      Due to these signs of ambiguity, this court should look to extratextual factors

to make its ruling on the interpretation of this statute. Samaripas (2014) (Keller,

dissenting). In order to properly allow the enhancement in this case, this court must

make an affirmative finding that the extratextual factors support the interpretation

from the majority opinion in Samaripas. Once the purposes and legislative history of

this statute are analyzed, this court should overrule Samaripas and not allow a non-

aggravated state jail felony to enhance a felony to habitual offender level.

The interpretation from the ruling in Samaripas leads to absurd results.

      Even if this court finds that the statute is not ambiguous, it should still look to

the legislative history because the interpretation in the Samaripas majority opinion

leads to absurd results. An example of the absurd results that are possible is shown in

this case. Based on one word admittedly needing clarification in an enhancement

statute, Mr. Taylor faced a minimum of 25 years in prison instead of a 5 year

minimum. Further, if his offense occurred five months later, the new clarifying

amendment would have been in effect and his enhancement would not be allowed.1

The difference of 20 years of a man’s life due to the lack of clarification by our

legislators and five months lag for that clarification is nothing short of absurd.

1
 This offense occurred in April 2011 and the amendment did not go in effect until
September 2011. See Taylor v. State, No. 01-11-00210-CR (Tex.App.—Houston [1st
Dist.] 2015)(footnotes 3 & 6).
                                            13
State jail felony punishments always derive from TEX. PEN. CODE § 12.35.

      The ruling in Samaripas states that the prior state jail felony was punished under

TEX. PEN. CODE § 12.42(a)(2). However, the punishment for non-aggravated state jail

felonies always derives out of § 12.35(a). § 12.42 does not stand alone to completely

replace § 12.35. § 12.35’s punishment is always in existence when a state jail felony is

involved, even if § 12.42 later comes on to add another penalty.

      It is presumed that every word in a statute has been used for a purpose and that

each word, phrase, clause, and sentence should be given effect if reasonably

possible. State v. Hardy, 963 S.W.2d 516, 520 (Tex.Crim.App.1997). Therefore, the

titles to the statutes in question have a purpose and effect. The titles of the two

sections in question show that state jail felony punishments always come from §

12.35, entitled “State Jail Felony Punishment”. The title to § 12.42 begins with the

word penalties. Therefore, in § 12.42(e) (the section at question in Samaripas), when

the legislature used the words “punished under Section 12.35(a),” they were referring

to their same use of the word punishment in the title of § 12.35. They were not using

the word “punished” to refer to the “penalties” of Sec. 12.42.

The terms ‘felony’ and ‘state jail felony’ are mutually exclusive.

      When interpreting the enhancement statutes at question, this court’s ruling and

the use of the terms by the legislature throughout this section concludes that ‘felony’

and ‘state jail felony’ are mutually exclusive. Campbell, 49 S.W.3d at 878; TEX. PEN.


                                          14
CODE § 12.35 & § 12.42. In this case, Mr. Taylor’s punishment was enhanced by §

12.42(d), which only describes a “felony” as available to enhance punishment to

habitual offender level. His prior state jail felony should not have been used.

      In this court’s ruling in Samaripas, as well as the first court of appeals’ ruling in

this case, the courts have used the word “punished” from § 12.42(e) to allow the

enhancement. § 12.42(e) only excludes state jail felonies for use to enhance. No

punishment at all is derived from § 12.42(e). Rather, the courts should look to the

actual statute causing the enhancement in this case, § 12.42(d), which indicates that

only felonies may be used to enhance.

                                   GROUND THREE
      THIS COURT’S RULING IN SAMARIPAS IS INCONSISTENT WITH PRIOR
      RULINGS. THE RULING IN SAMARIPAS DID NOT OVERRULE THOSE
      CASES, AND NEEDS CLARIFICATION.

The rulings in Samaripas and Campbell are inconsistent.

      [S]ubsection [12.42](e) does not “specifically allow state jail felonies to be

      used for enhancement purposes under all of subsection (a).” Rather, it

      specifically bars the use of unaggravated state jail felony convictions

      punished under subsection 12.35(a) to enhance second-degree felonies

      (subsection 12.42(b)), first degree felonies (subsection 12.42(c)), or “a

      felony offense other than a state jail felony” (subsection 12.42(d)), but

      permits such enhancement by the use of aggravated state jail felony


                                           15
       convictions punished under subsection 12.35(c). This provision indicates

       the    intent    to    limit    use        of   prior   convictions     for

       unaggravated state jail felonies for enhancement to the uses

       provided by subsection 12.42(a)(1). We will not stretch its unambiguous

       language to where the statute’s plain words do not go. Campbell v. State,

       49 S.W.3d 874, 877 (Tex.Crim.App.2001) (emphasis added).

       This court ruled in Campbell that the unambiguous meaning of § 12.42

disallowed the very enhancement that this court allowed based on the same

“unambiguous” meaning in the Samaripas case. This direct inconsistency needs to be

clarified.

The rulings in Samaripas and Webb are inconsistent.

        “The level of specificity set out in these statutes suggests that the ‘multiple

enhancement’ that the state asserts is not authorized.... had the legislature meant to

provide ‘multiple enhancement’ of a non-aggravated state jail felony to ‘habitual

offender’ punishment, it would have explicitly stated so.” State v. Webb, 12 S.W.3d 808,

811-12 (Tex.Crim.App.2000). In this case, the state is using a non-aggravated state jail

felony to enhance Mr. Taylor to “habitual offender” punishment. This is explicitly

disallowed by the specificity of the statute and this court’s ruling in Webb. This direct

inconsistency needs to be clarified.

The ruling in Samaripas is inconsistent with Ford and Reinke.


                                             16
      Further, disallowing this type of enhancement is supported by more recent

cases. Ex Parte Reinke, 370 S.W.3d 387 (Tex. Crim. App. 2012); Ford v. State, 334

S.W.3d 230 (Tex. Crim. App. 2011). Ford and Reinke make clear a distinction exists

between an enhanced punishment level and enhancing the level of offense. Id. An

enhanced punishment range does not enhance the underlying offense. Id. In this case,

the underlying state jail felony offense, even though its punishment was enhanced to a

felony, should not be used as something other than a state jail felony for

enhancement. Id.; see also Arriola v. State, 49 S.W.3d 374, 375-76 (Tex. App.—Fort

Worth 2000, pet. Ref’d); Hadnot v. State, 851 S.W.2d 378, 379 (Tex. App.—Houston

[1st Dist.] 1993, pet. Ref’d). This distinction between enhanced punishment and

enhanced offenses supports disallowing the enhancement in this case.

Policy concerns support disallowing this enhancement.

      Mr. Taylor was charged with possession of a controlled substance, a non-

violent drug offense. Many legislators are pushing for criminal justice reform to

prevent needless and expensive incarcerations when needs are more efficiently and

effectively met through education and treatment programs. A growing recognition

exists for the support of such initiatives over the more costly option of simply

housing offenders in the prison system. A recent study conducted by Wilson Perkins

Allen Opinion Research for the Texas Public Policy Foundation found that 61% of

voters agree that we should spend more money on effective treatment programs



                                         17
rather than spending more money on our prison system.2 Overcriminalization and the

added costs to taxpayers of unnecessarily holding people in prison longer are real

problems and concerns. Refusing to follow intent by clinging to a 25 year minimum

sentence instead of allowing the proper opportunity for a 5 year minimum sentence is

imprudent of a court given the policy considerations. In this case, if the court follows

the original intent of the enhancement statutes, public policy will be aided and the

majority of Texans would be in thankful support of its decision which would save

taxpayer dollars.




2
  David Reaboi, New Poll Shows Voters Strongly Support New Justice Reforms in Texas,
March 9, 2015, http://rightoncrime.com/2015/03/new-poll-shows-voters-strongly-
support-new-justice-reforms-in-texas/ (with Right on Crime Policy Director
indicating, “Texans are clearly demanding a different solution to the state’s criminal
justice problems, especially when it comes to nonviolent offenders...The primary
reason to adopt these policies is that they are the most cost-effective way to fight
crime, but it is reassuring to see that average Texans recognize this as well.”)
                                          18
                                  PRAYER FOR RELIEF

        For the foregoing reasons, we respectfully request this court to set aside the

judgement in this case.

        In the alternative, we request this court find the use of Mr. Taylor’s non-

aggravated state jail felony for enhancement improper and remand this case for

further punishment findings.

                                                 Respectfully submitted,

                                                 David Suhler_______________
                                                 DAVID SUHLER
                                                 Attorney for Appellant
                                                 State Bar No. 19465900
                                                 P.O. Box 540744
                                                 Houston, Texas 77254-0744
                                                 713-522-1220


                               CERTIFICATE OF SERVICE

        I hereby certify that a copy of Appellant’s Brief was mailed to the Appellate

Division of the Galveston County District Attorney’s office on the 22nd day of April,

2015.

                                                 David Suhler___________________


                            CERTIFICATE OF COMPLIANCE

        This petition for discretionary review complies with Texas Rule of Appellate

Procedure 9.4(i)(3) and contains 3,439 words.



                                            19
APPENDICES




  20
APPENDIX A
APPENDIX B
APPENDIX C
APPENDIX D
Opinion issued February 19, 2015




                                    In The

                             Court of Appeals
                                   For The

                         First District of Texas
                          ————————————
                             NO. 01-11-00210-CR
                          ———————————
                   WALTER EARL TAYLOR, Appellant
                                      V.
                     THE STATE OF TEXAS, Appellee


                   On Appeal from the 56th District Court
                         Galveston County, Texas
                      Trial Court Case No. 10CR1215


                        OPINION ON REHEARING

      On September 3, 2014, this Court granted rehearing in this case and

withdrew our judgment and opinion of November 29, 2012. We now issue this

opinion and accompanying judgment in their stead.
      A jury convicted appellant of possession of cocaine weighing between four

and 200 grams.1 Appellant pleaded true to two enhancements that alleged prior

felony convictions, and the jury assessed punishment at 25 years’ confinement.2 In

four issues on appeal, appellant contends that (1) he received ineffective assistance

of counsel at trial; (2) the trial court submitted the wrong range of punishment to

the jury; (3) the evidence was insufficient to prove one of the alleged

enhancements; and (4) the trial court erred by refusing appellant access to the juror

information cards. We affirm.

  USE OF NON-AGGRAVATED STATE JAIL FELONY PUNISHED AS
SECOND DEGREE FELONY TO ENHANCE SECOND DEGREE FELONY

      Appellant pleaded true in the present case to two felony enhancement

paragraphs. One of the enhancements—cause no. 09CR0724—a conviction for

possession of cocaine, was described in the judgment as a second degree felony,

1
      See TEX. HEALTH & SAFETY CODE ANN. §§ 481.102(3)(D) (providing that cocaine
      is penalty group one substance), 481.115(a),(d) (providing that possession of a
      penalty group one substance in an amount between four and 200 grams is a second
      degree felony) (Vernon 2010).


2
      See TEX. PENAL CODE ANN. § 12.42(d) (Vernon 2011) (providing range of
      punishment between 25 and 99 years for felony conviction enhanced by two prior
      felony convictions).




                                         2
and assessed a punishment at two years’ confinement. Appellant argues that cause

number 09CR0724 was a non-aggravated state jail felony conviction, which cannot

be used to enhance his present second degree felony charge. Thus, in three related

issues on appeal, appellant contends that (1) his counsel was ineffective for failing

to object to the erroneous enhancement; (2) the trial court submitted the wrong

range of punishment; and (3) the evidence was insufficient to prove that appellant

was a habitual offender.

      Determining the merits of appellant’s complaint requires that we examine

the application and interaction of the enhancement statutes involved. 3             In

interpreting a statute, courts look to the literal text of the statute for its meaning

and ordinarily give effect to that plain meaning, unless application of the statute’s

plain language would lead to absurd consequences that the legislature could not

possibly have intended, or the plain language is ambiguous. Boykin v. State, 818

S.W.2d 782, 785 (Tex. Crim. App. 1991); State v. Webb, 12 S.W.3d 808, 811 (Tex.

Crim. App. 2000).




3
      The statutes involved in this decision were revised and reorganized in 2011, with
      an effective date of September 1, 2011. See Act of May 25, 2011, 82nd Leg.,
      R.S., ch. 834, §§ 7–8, 2011 Tex. Gen. Laws 2104, 2104. Because this offense
      occurred on April 21, 2011, we apply the prior versions of these statutes. Id.

                                          3
      Former Penal Code sections 12.42(d)4 & (e)5 are the statutes under which the

present second degree felony was enhanced and provide in relevant part as follows:

      (d) [I]f it is shown on the trial of a felony offense other than a state jail
      felony punishable under Section 12.35(a) that the defendant has
      previously been finally convicted of two felony offenses, and the
      second previous felony conviction is for an offense that occurred
      subsequent to the first previous conviction having become final, on
      conviction he shall be punished by imprisonment in the Texas
      Department of Criminal justice for life, or for any term of not more
      than 99 years or less than 25 years.

      (e) A previous conviction for a state jail felony punished under
      Section 12.35(a) may not be used for enhancement purposes under
      Subsections (b), (c), or (d). (Emphasis added).

Thus, the question this Court must decide is whether cause no. 09CR0724 is a

“state jail felony punished under Section 12.35(a).” See TEX. PENAL CODE ANN. §

12.35(a) (Vernon 2011) (defining punishment range for non-aggravated state jail

felony).   If it is a “state jail felony punished under Section 12.35(a),” it was

improper to use it to enhance appellant’s present felony conviction.

      Cause no. 09CR0724 is a conviction for possession of less than 1 gram of

cocaine, which is generally a state jail felony. See TEX. HEALTH & SAFETY CODE

4
      Act of May 11, 2009, 81st Leg., R.S., ch. 87, § 25.150, 2009 Tex. Gen. Laws 208,
      373, amended by Act of May 25, 2011, 82nd Leg., R.S., ch. 834, § 4, 2001 Tex.
      Gen Laws 2104, 2105 (current version at TEX. PENAL CODE ANN. § 12.42(d)
      (Vernon 2011)).
5
      Act of May 24, 1995, 74th Leg., R.S., ch. 318, § 1, 1995 Tex. Gen. Laws 2734,
      2734–35, repealed by Act of May 25, 2011, 82nd Leg. R.S., ch. 834, §6, 2011
      Tex. Gen. Laws 2104, 2105 (current version at TEX. PENAL CODE ANN. § 12.42(d)
      (Vernon 2011)).
                                           4
ANN. §§ 481.102(3)(d), 481.115(b) (Vernon 2010). Such non-aggravated state jail

felonies are generally punished by a term of confinement in a state jail for a period

of 180 days to 2 years. See TEX. PENAL CODE ANN. § 12.35(a) (Vernon 2011). As

such, it would be improper to use a non-aggravated state jail felony to enhance a

felony conviction. See former TEX. PENAL CODE ANN. § 12.42(e) (Act of May 24,

1995, 74th Leg., R.S., ch. 318, § 1, 1995 Tex. Gen. Laws 2734, 2734–35 (repealed

2011)).

      However, the indictment in cause no. 09CR0724 also alleged two prior

felony enhancements, so its punishment was elevated to a second-degree felony

pursuant to former Penal Code article 12.42(a)(2), which provides:

      If it is shown on the trial of a state jail felony punishable under
      Section 12.35(a) that the defendant has previously been finally
      convicted of two felonies, and the second previous felony conviction
      is an offense that occurred subsequent to the first previous conviction
      having become final, on conviction the defendant shall be punished
      for a second-degree felony.

Act of May 24, 1995, 74th Leg. R.S., ch. 318, § 1, 1995 Tex. Gen. Laws 2734,

2734–35, amended by Act of May 25, 2011, 82nd Leg., R.S. ch 834, § 2, 2011

Tex. Gen. Laws 2104, 2104         (current version at TEX. PENAL CODE ANN. §

12.425(b) (Vernon 2011)).

      Appellant argues that, even though cause no. 09CR0724 was ultimately

punished as a second degree felony, we should look to the crime charged—a non-

aggravated state jail felony punishable under section 12.35(a)—to determine
                                         5
whether the conviction can be used to enhance a subsequent felony conviction.

The State responds that, because of the felony enhancements, cause no. 09CR0724

was not punished under section 12.35(a), but was punished only under former

section 12.42(a)(2).

      The Texas Court of Criminal Appeals recently considered this issue in

Samaripas v. State, No. PD-135-13, ___S.W.3d___, 2014 WL 5247434 (Tex.

Crim. App. Oct. 15, 2014). In Samaripas, the defendant was charged with a third-

degree felony. Id. at *5. The State alleged two prior felony convictions, one a

non-aggravated state jail felony that had been enhanced to a second degree felony.

Id. On appeal, the defendant argued, like appellant does here, that although the

punishment for the underlying offense had been enhanced, that did not enhance the

level of the underlying offense, and therefore, it should have not been available to

enhance his current offense. Id. at 6. The court of appeals rejected Samaripas’s

argument, noting that “[p]unishing a defendant more severely after repeated

behavior that has escalated beyond the level of an unenhanced state jail felony

offense is neither absurd, nor is its application[,]” and that “[h]ad the Legislature

intended to exclude state jail felonies that received enhanced punishment under

section 12.42(a)(2) from being used for enhancement, it would have done so.”

Samaripas v. State, No. 13-11-00442-CR, (Tex. App—Corpus Christi 2013), aff’d

in part, rev’d in part on other grounds, Samaripas v. State, 446 S.W.3d 1, 13 (Tex.

                                         6
Crim. App. Oct. 15, 2014). The Court of Criminal Appeals agreed, stating as

follows:

      We agree with the court of appeals that the plain language of the
      statute makes it clear that, at the time of Appellant’s offense, Section
      12.42(e) focused on how the previous state-jail felony was actually
      punished and precluded from use for enhancement only those state-
      jail felonies that had not been punished under the range of a higher
      felony. Here, [Samaripas] was not punished under Section 12.35(a).
      His prior state-jail felony had been enhanced, and he was punished for
      that offense under Section 12.42(a)(2). Therefore, the prior offense
      was properly used for enhancement purposes, and the court of appeals
      did not err in overruling this issue.

Samaripas, 2014 WL 5247434, at *6.

      As Samaripas makes clear, we must look at how the underlying offense was

actually punished to determine whether it was proper to use it to enhance the

current, charged offense. Like the underlying offense in Samaripas, here the

underlying non-aggravated state jail felony had been enhanced, and appellant was

punished for that offense under section 12.42(a)(2).         Because the underlying

offense was not punished under 12.35(a), the State was not precluded by section

12.42(e) from using that underlying offense for enhancement of the charged

offense.6


6
      We note that the legislature repealed 12.42(e) and recodified it in 12.42(d) which
      now provides that “A previous conviction for a state jail felony punishable under
      Section 12.35(a) may not be used for enhancement purposes under this
      subsection.” TEX. PENAL CODE ANN. § 12.42(d) (Vernon Supp. 2013) (emphasis
      added). The legislature has changed the word used in the exclusion from
      “punished” to “punishable.” This is a “significant” distinction because enhanced
                                          7
      Accordingly, we overrule points of error two and three and the portion of

appellant’s ineffective assistance of counsel claim that is based on the same

argument.

                 INEFFECTIVE ASSISTANCE OF COUNSEL

      In the remaining issues raised in appellant’s first point of error, he contends

the trial court erred in denying his motion for new trial, which was based on

allegations of ineffective assistance of counsel.

Standard of Review and Applicable Law

      We review the trial court’s denial of a motion for new trial for abuse of

discretion. See State v. Herndon, 215 S.W.3d 901, 907 (Tex. Crim. App. 2007).

Therefore, “when analyzing the trial court’s failure to grant a motion for new trial

on the basis of ineffective assistance of counsel, we view the relevant legal

standards through the prism of abuse of discretion.” Ramirez v. State, 301 S.W.3d

410, 415 (Tex. App.—Austin 2009, no pet.) (citing State v. Gill, 967 S.W.2d 540,

542 (Tex. App.—Austin 1998, pet. ref’d)). A trial court abuses its discretion only

when no reasonable view of the record would support the trial court’s ruling.

Holden v. State, 201 S.W.3d 761, 763 (Tex. Crim. App. 2006).


      non-aggravated state jail felonies could be used for felony enhancement under
      former 12.42(e) before the amendment, but now cannot. Samaripas, 2014 WL
      5247434 at *6 n.5. “Had [appellant] committed the current offense after this
      amendment, it would not have been proper for his prior state-jail felony to be used
      for enhancement.” Id.

                                           8
      Appellant has the duty to bring forth a record that affirmatively demonstrates

the alleged ineffectiveness of his counsel by a preponderance of the evidence. See

Scheanette v. State, 144 S.W.3d 503, 509–10 (Tex. Crim. App. 2004). In order to

prevail on a claim of ineffective assistance of counsel, a defendant must satisfy the

two-prong test set out in Strickland v. Washington. 466 U.S. 668, 687, 104 S. Ct.

2052 (1984); see also Hernandez v. State, 726 S.W.2d 53, 57 (Tex. Crim. App.

1986) (adopting Strickland standard for claims of ineffective assistance of

counsel). Under Strickland, a defendant must show (1) that the counsel’s

performance was deficient and (2) that the defendant was prejudiced by the

deficient performance. 466 U.S. at 687. Counsel’s performance is deficient when it

falls “below an objective standard of reasonableness” based upon “prevailing

professional norms.” Strickland, at 669, 688; see also Perez v. State, 310 S.W.3d

890, 893 (Tex. Crim. App. 2010). An accused is not entitled to errorless or perfect

counsel. See Robertson v. State, 187 S.W.3d 475, 483 (Tex. Crim. App. 2006).

Therefore, counsel’s effectiveness is assessed from the perspective at trial,

“without the distorting effects of hindsight.” Goodspeed v. State, 187 S.W.3d 390,

392 (Tex. Crim. App. 2005). Our review of counsel’s performance must be highly

deferential. Strickland, 466 U.S. at 689. We presume that counsel makes all

significant decisions in the exercise of reasonable judgment. Id.




                                          9
Failure to Impeach with Inconsistent Evidence

      When appellant’s house was searched pursuant to a “no knock” warrant,

Officers found a safe in the living room that contained crack cocaine and a large

amount of money.       At trial, Officer Vela testified that appellant had claimed

ownership of the safe. However, another officer, Officer Roark, had filed an

affidavit in a civil forfeiture case arising from the same offense in which he

averred, “Ofc. Vela asked Mr. Golliday about the safe at which time he again

advised the safe did not belong to him. Officer Vela then asked appellant about the

safe. Mr. Taylor stated to Officer Vela that the safe did not belong to him even

though it was found in his house in the living room.” Appellant contends that trial

counsel was ineffective for failing to impeach Officer Vela with the statements

from Officer Roark’s affidavit.7 Specifically, appellant argues that “[t]he only

testimony linking Mr. Taylor to the safe came from Officer Vela.”

      The State responds that even if trial counsel was deficient for failing to

question Vela about Roark’s affidavit, appellant cannot show that the outcome of

the trial would have been different had she done so. We agree. The State did not

7
      At the hearing on the motion for new trial, it was appellant’s position that Roark
      had committed perjury by testifying at trial that appellant admitted owning the
      safe, and testifying to the contrary in his affidavit in support of the forfeiture
      proceeding. However, on review of the transcript from the trial, which was
      apparently not yet available at the time of the motion for new trial hearing, it is
      clear that Officer Vela, not Roark, testified at trial about appellant’s admission that
      he owned the safe. Thus, there was never an issue of perjured testimony, but, at
      most, a conflict between the two officers’ testimonies.
                                            10
have the burden of proving that appellant owned the safe; it had only to prove that

appellant had care, custody, control, or management of the drugs.          See TEX.

HEALTH & SAFETY CODE ANN. § 481.002(38) (Vernon 2010) (defining

“possession”).

      Here, there was overwhelming evidence linking appellant to the drugs. The

police conducted surveillance of Taylor’s house and saw several people go in and

leave within just a few minutes. This, the officers testified, was consistent with

drug dealing. The officers then stopped one of the men that had been seen entering

appellant’s house and then leaving a short time later. The man had cocaine, and

the officers believed that he had gotten the cocaine from appellant.

      The officers then got a warrant and searched appellant’s house. A man,

Golliday, was on the couch in the living room. He was under the influence and

had a cigar dipped in narcotics in his hand. Appellant was found in his bedroom.

Appellant, too, was under the influence of drugs. The officers also found drug

paraphernalia in appellant’s bedroom.

      In the living room, the officers also found a small safe. Golliday said the

safe was not his and he did not have the key. However, he did tell the officers

where the key was located. Inside the safe, the officers found more than cocaine

and $285 in cash. The officers found mail with appellant’s name on it indicating

that he lived in the house. They found nothing to indicate that Golliday lived in the

                                         11
house. This evidence affirmatively linked appellant to the drugs. See Evans v.

State, 202 S.W.3d 158, 162 n.12 (Tex. Crim. App. 2006) (listing factors that may

be considered as affirmatively linking defendant to narcotics). Whether appellant

actually owned the safe is just one of many factors to be considered in determining

appellant’s link to the drugs.

      In light of the substantial amount of other evidence linking appellant to the

drugs, appellant cannot meet the prejudice prong of the Strickland test. See Dennis

v. State, 151 S.W.3d 745, 752 (Tex. App.—Amarillo 2004, pet. ref’d) (holding

overwhelming evidence of appellant’s guilt negated reasonable probability that

outcome would have been different but for counsel’s alleged deficient

performance).

Failure to Question Officers Regarding “No Knock” Warrant

      Appellant also argues that trial counsel was deficient for failing to question

the officers about the necessity of a “no knock” warrant. Specifically, the affidavit

in support of the warrant alleged that “there were several handguns inside the

residence,” but no weapons were found when the house was searched.

      At the motion for new trial hearing, trial counsel testified that she was

extremely cautious when questioning the officers about the warrant because she

did not want to inadvertently “open the door” to the admission of appellant’s many

prior convictions. Trial counsel also testified that it was a part of her trial strategy

                                          12
to keep appellant’s prior convictions out of evidence, and the trial court had

warned her that if she continued in her questioning regarding the necessity of a “no

knock” warrant, those priors might come in.

      To establish deficient performance under the first prong, a defendant must

show that no reasonable trial strategy could justify counsel’s conduct. See

Strickland, 466 U.S. at 689; Andrews v. State, 159 S.W.3d 98, 102 (Tex. Crim.

App. 2005).     In light of trial counsel’s reasonably articulated trial strategy

regarding her decision not to question the officers further about the “no knock”

warrant, appellant fails to meet the first prong of the Strickland test.

      We overrule appellant’s first point of error.

                ACCESS TO JUROR INFORMATION CARDS

      In issue four, appellant contends that the trial court abused its discretion by

failing to allow his counsel access to juror information cards.            Specifically,

appellant contends that (1) two jurors were not registered to vote, so they might not

have been qualified to serve as jurors, and (2) he wanted to explore whether he

could raise a Batson challenge.

Standard of Review and Applicable Law

      A trial court abuses its discretion when it acts without reference to any

guiding rules and principles, or it acts in an arbitrary or capricious manner.

Montgomery v. State, 810 S.W.2d 372, 380 (Tex. Crim. App. 1990) (citations

                                           13
omitted). A trial court does not abuse its discretion if its ruling is at least within the

zone of reasonable disagreement. Salazar v. State, 38 S.W.3d 141, 153–54 (Tex.

Crim. App. 2001); Montgomery, 810 S.W.2d at 391 (op. on reh’g).

      By its terms, article 35.29 of the Texas Code of Criminal Procedure protects

juror personal information. See TEX.CODE CRIM. PROC. ANN. art. 35.29 (Vernon

Supp. 2014). When a defendant files a post-trial motion seeking discovery of

jurors’ personal information, “[h]e is not entitled to such information unless he

shows good cause.” Valle v. State, 109 S.W.3d 500, 509 (Tex. Crim. App. 2003)

(citing TEX. CODE CRIM. PROC. ANN. art. 35.29); see Cyr v. State, 308 S.W.3d 19,

29 (Tex. App.—San Antonio 2009, no pet.) (stating that article 35.29 “prohibits

personal information about jurors from being disclosed after trial unless good

cause is shown”). “What constitutes good cause must be based upon more than a

mere possibility that jury misconduct might have occurred; it must have a firm

foundation.” Id. at 30; Esparza v. State, 31 S.W.3d 338, 340 (Tex. App.—San

Antonio 2000, no pet.) (stating that “[w]hat constitutes good cause must

necessarily be based upon more than a mere possibility that jury misconduct might

have occurred”).

      In Hooker v. State, the appellate court stated that article 35.29’s good-cause

showing “must be based upon sworn testimony or other sufficient supportive

evidence in the record.” 932 S.W.2d 712, 716 (Tex. App.—Beaumont 1996, no

                                           14
pet.); see Valle, 109 S.W.3d at 509 (stating that appellant’s allegation “that he

needed [the jurors’] personal information to determine whether he should file a

motion for new trial . . . is not sufficient to establish good cause”), see also

Castellano v. State, No. 04–06–00524–CR, 2007 WL 2935399, at *3 (Tex. App.—

San Antonio Oct. 10, 2007, no pet.) (mem. op., not designated for publication)

(holding that defendant had “reason to believe” juror misconduct had occurred was

not sufficient to show good cause).

Analysis

      In this case, appellant argued that he needed the juror information cards (1)

to determine whether two jurors, who were not registered voters, were qualified to

serve, and (2) to explore whether he could raise a Batson challenge. Regarding the

first issue, the trial court properly noted, “There, of course, is no requirement that a

Juror be a registered voter. So, there’s only a requirement that a Juror be qualified

and, in fact, expressly does not have to be registered[.]” See TEX. CODE CRIM.

PROC. ANN. art. 33.02 (Vernon 2006) (“Failure to register to vote shall not

disqualify any person from jury service.”). There is nothing in the record to

support appellant’s assertion that the jurors “might” have been disqualified.

Regarding the second issue, again, there is nothing in the record to support

appellant’s claim that he needed the cards “to determine if there was a basis for

Batson challenge.”

                                          15
       Appellant essentially argues that he needed the information cards “to present

a motion for new trial to develop issues that were outside the record, namely, to

determine if two people who served on the jury were qualified to serve, to review

all the challenges for cause, and to determine if there was a basis for a Batson

challenge.” However, requesting juror cards to decide whether there is a basis for

filing a motion for new trial is not a showing of good cause. Valle, 109 S.W.3d at

509.

       Because appellant did not meet his burden of showing good cause to the trial

court so as to be entitled to the juror information sought, the trial court did not

abuse its discretion by denying appellant’s request.

       We overrule appellant’s fourth point of error.

                                  CONCLUSION

       We affirm the trial court’s judgment.




                                               Sherry Radack
                                               Chief Justice

Panel consists of Chief Justice Radack and Justices Bland and Huddle.

Publish. TEX. R. APP. P. 47.2(b).




                                         16
