Enhancement and Double Jeopardy

OUT-OF-STATE CONVICTIONS FOR ENHANCEMENT PURPOSES

Habeas Corpus Application from Tarrant County—Relief Denied
For purposes of Texas Penal Code §12.42(c)(2)(B), probated convictions may be used for enhancement.
Ex Parte White, __S.W.3d__(Tex.Crim.App. No. 75,308, 1/10/07); Opinion: Price (Unanimous).

Applicant was convicted of indecency with a child. Applicant had previously been convicted of similar crime in Delaware. Applicant argued Delaware conviction not final for enhancement purposes because conviction was probated.

Held: Probated foreign convictions for crimes similar to indecency with a child may be used to enhance punishment in Texas for an offense listed under §12.42(c)(2)(B) of the Texas Penal Code (indecency with a child). CCA noted general rule regarding enhancements is a probated sentence is not a final conviction for enhancement purposes unless it is revoked. Ex Parte Langley, 833 S.W.2d 141, 143 (Tex.Crim.App. 1992). However, under Texas Penal Code subsection 12.42(g)(1), a defendant has been finally convicted of an offense similar to indecency with a child if defendant entered a plea in return for a grant of deferred adjudication, regardless of whether the sentence was probated and defendant was subsequently discharged from community supervision.

Habeas Corpus Application from Collin County---Relief Denied
A legal basis is unavailable if it has been exhausted by previous presentation to the CCA, but that legal basis can become newly available as a result of later, binding precedent relevant to the issue in question.
Ex Parte Hood, __S.W.3d__(Tex.Crim.App. No. 75,370; 1/10/07); Opinion: Keller, P.J.; Joined by Meyers, Price, Keasler, and Hervey. Dissent: Cochran; Joined by: Womack, Johnson, and Holcomb.

Applicant was convicted of capital murder and sentenced to death. Applicant appealed, challenging the efficacy of the nullification instruction. CCA denied the appeal. On third application for writ of habeas corpus, Applicant again raised the issue of the nullification instruction. Issue was whether this application was barred by the subsequent application prohibition.

Held: Subsequent application for writ barred for failure to present new factual basis and new legal basis for the claim. The subsequent application prohibition bars repeated application for writ of habeas corpus unless one or more of the following exceptions apply: one, the innocence gateway exception; two, the no rational juror exception; and three, the unavailability exception. The unavailability exception requires a new factual basis or a new legal basis which did not exist at the time of a previous application for writ of habeas releif. Applicant claimed recent United States Supreme Court decision provided new legal claim which was unavailable at the time of previous applications. CCA help Applicant did not supply a previously unavailable legal basis for challenging the original nullification holding because the Supreme Court decision upon which Applicant relied for his third application had been rendered at the time Applicant filed his second application.

IMPORTANT DECISION-- DOUBLE JEOPARDY CLAUSE

Appellant’s PDR from Tarrant County- Reversed in Part
Ex Parte Lewis, __S.W.3d__(Tex.Crim.App. No. 0577,05; 1-10-07). Opinion: Keller, P.J., Joined by: Womack, Keasler, and Hervey. Concurrence: Cochran. Dissent: Price. Joined by: Meyers, Holcomb, and Johnson.
http://www.cca.courts.state.tx.us/OPINIONS/HTMLOPINIONINFO.ASP?OPINIONID=14909

In Bauder v. State, the CCA held the Double Jeopardy provision of the Texas Constitution prevented retrials “when the prosecutor was aware of but consciously disregarded the risk that an objectionable event for which he was responsible would require a mistrial at the defendant’s request.” CCA overturned Bauder and stated the proper rule under the Texas Constitution is the rule articulated by the United States Supreme Court in Oregon v. Kennedy.

Held: Double Jeopardy Clause bars retrial when a defendant successfully moves for a mistrial only where prosecutor engages in conduct that is intended to provoke the defendant into moving for a mistrial. CCA ruled that the Bauder decision was flawed in a number of ways. One, the decision has led to a “troubling array” of definitions of reckless and intentional. This has led to difficulty in correctly interpreting and applying the Bauder standard. Second, the courts of this State have been unable to articulate what the “reckless” standard seeks to protect which is not adequately protected by the “intentional” standard. The Kennedy standard is “workable, appropriately narrow, and comports with the purpose of the double jeopardy provision’s application to the mistrial setting.”