IN THE COURT OF CRIMINAL APPEALS OF TEXAS NO. PD-0398-17

JOSE OLIVA, Appellant

v.

THE STATE OF TEXAS

ON STATE’S PETITION FOR DISCRETIONARY REVIEW FROM THE FOURTEENTH COURT OF APPEALS HARRIS COUNTY

K EASLER, J., filed a dissenting opinion in which Y EARY, J., joined.

DISSENTING OPINION

In Calton v. State, we said that “[a]n enhancement . . . does not change the offense,

or the degree of the offense, of conviction.”1 This necessarily means that, if some fact or

issue does affect the degree of the offense (rather than just the “punishment range” attendant

to the offense), it is not an enhancement.2 Instead, it constitutes part of “the offense . . . of

1 176 S.W.3d 231, 233 (Tex. Crim. App. 2005). 2 Id. OLIVA (DISSENT)—2

conviction.”3 It is, at least in this sense, elemental.4 This is so, we said, because “[t]here can

be no enhancement until a person is first convicted of an offense of a certain degree.” 5 This

language, if followed, would seem to allow but one result in this case: Because Penal Code

Section 49.09(a) says that driving while intoxicated (DWI) “is” a Class A misdemeanor if

the State proves that the defendant “has previously been convicted one time of” DWI, the

fact of his prior conviction is elemental.6 It must be proven in guilt-innocence.7

The majority offers three explanations for why this prior holding need not be followed

today: First, the majority notes that Calton “cited no authority for the proposition that a

punishment enhancement does not change the degree of the offense[.]”8 The majority then

goes on to characterize this instructive language from Calton as dictum,9 and finally seeks

to distinguish the statute at issue in this case from the one discussed in Calton.10

3 Id. 4 Id. at 234 (“To sustain a conviction, all the elements of the offense must be proved at guilt.”); but see id. at 237 (Womack, J., dissenting) (“[A] mere requirement of proof does not an element make.”). 5 Id. at 233–34. 6 T EX. P ENAL C ODE § 49.09(a). 7 Calton, 176 S.W.3d at 232 (prior-conviction provision within the former evading arrest statute “must be proved at the guilt stage of trial because the statute presents it as an element of the offense”). 8 Majority Opinion at 9. 9 Id. at 10. 10 Id. at 22–23. OLIVA (DISSENT)—3

At issue in Calton was the proper construction of former Penal Code Section 38.04,

describing the offense of “Evading Arrest or Detention.”11 Under that law, if a person used

a motor vehicle “while . . . in flight,” the offense was ordinarily classified as a state jail

felony; but if the person used a motor vehicle “and the actor ha[d] been previously

convicted” of evading arrest, the offense was a third-degree felony.12 The question in Calton

was: For the State to obtain a third-degree felony conviction under the prior-offense

provision, must the State prove the defendant’s prior conviction in guilt-innocence, or may

the State wait until the punishment phase to offer proof of that fact? 13

We ultimately concluded that Section 38.04 was unambiguous: The fact of the

defendant’s prior conviction “must be proved at the guilt phase of trial.” 14 Why? Because

the “plain language of § 38.04 reveals that a prior conviction for evading arrest is an element

of the offense of third-degree evading arrest.”15 And why was Section 38.04’s language so

“plain”? Precisely because that statute did not merely “set forth a higher punishment range

for the offense when the prior conviction is proved. Instead, it require[d] proof of the prior

conviction for the third-degree felony conviction to occur.”16 This reasoning was a clear

11 Calton, 176 S.W.3d at 233–34. 12 Id. at 234. 13 Id. at 232. 14 Id. at 234. 15 Id. 16 Id. OLIVA (DISSENT)—4

reference to Calton’s earlier discussion about the respective roles of punishment

“enhancements” and “degree[s] of . . . offense[s]” within the Penal Code.17 And it was the

primary, if not the sole, justification given for deciding that Section 38.04’s prior-conviction

provision was “plain[ly]” elemental.18

From these observations, I gather two things. One, Calton’s discussion of the

difference between facts affecting “the degree of the offense” and facts affecting only the

appropriate “punishment range”19 was not “unnecessary to the decision,” so it ought not be

dismissed as dictum.20 And two, Section 49.09(a), though undeniably different from former

Section 38.04, is not distinguishable in the manner that Calton considers to be the most

important. Both statutes say that, upon proof of a particular fact, the resulting offense “is”

of a higher degree or severity—it is not merely “punished” as though it were.21 Calton would

consider this to be a powerful, if not dispositive, indication that the Legislature intended this

fact to be resolved in the guilt phase of trial.22

17 Id. at 233–34. 18 Id. 19 See id. at 233. 20 Obiter Dictum, B LACK’S L AW D ICTIONARY (10th ed. 2009). 21 Compare T EX. P ENAL C ODE § 49.09(a), and T EX. P ENAL C ODE § 38.04(b)(2)(A) (West 2004) (each stating that, upon proof of certain facts, the resulting offense “is” a higher degree than it otherwise would have been), with T EX. P ENAL C ODE § 12.42(a) et seq. (stating that, upon proof of certain facts, “the defendant shall be punished” according to a range that is higher than it otherwise would have been). 22 Calton, 176 S.W.3d at 233–34. OLIVA (DISSENT)—5

To be sure, the fact that we previously adopted one understanding of language

affecting the “degree of the offense” does not mean that we are inescapably bound to that

understanding. “If a prior decision was poorly reasoned or unworkable, we do not achieve

the goals sought through reliance upon stare decisis by continuing to follow that

precedent.”23 And, as the majority rightly points out, when Calton said “[t]here can be no

enhancement until a person is first convicted of an offense of a certain degree,” it failed to

cite any authority for that proposition.24 But this lack of citation should be seen as a failure

of annotation, rather than of logic; it proves neither that Calton was poorly reasoned nor that

its central thesis is unworkable.

To the contrary, adherence to Calton would simplify much of the Court’s analysis, and

would also allow us to avoid construing indistinguishable, side-by-side phrases in

diametrically opposing ways.25 Just like Section 49.09(a), Section 49.09(b) says that DWI

“is” a third-degree felony “if it is shown on the trial of the offense” that the person has two

prior convictions for a DWI-related offense.26 As the majority acknowledges, we have

23 Febus v. State, __ S.W.3d __, 2018 WL 850336, at *6 (Tex. Crim. App. Feb. 14, 2018). 24 See Majority Opinion at 9; Calton, 176 S.W.3d at 233–34. 25 Cf. Ex parte Keller, 173 S.W.3d 492, 498 (Tex. Crim. App. 2005) (“Under the normal rules of statutory construction, there is a presumption of statutory consistency. That is, a word or phrase that is used within a single statute generally bears the same meaning throughout that statute[.]”) (citations omitted). 26 T EX. P ENAL C ODE § 49.09(b). OLIVA (DISSENT)—6

interpreted 49.09(b)’s language as prescribing “elements of the offense of” felony DWI.27

In order to interpret 49.09(a)’s nearly identical language as accomplishing a different result,

the majority points to Code of Criminal Procedure Article 36.01, which says that “[w]hen

prior convictions are alleged for purposes of enhancement only and are not jurisdictional, that

portion of the indictment or information reciting such convictions shall not be read [to the

jury] until the hearing on punishment is held[.]”28 I am unpersuaded. Article 36.01 tells us

nothing more than that, if an allegation is determined to be a non-jurisdictional enhancement,

it should not be revealed to the jury until the punishment phase.29 It does not tell us whether

or what fact-issues fall into that category. I do not think that this statute sufficiently justifies

deviating from the “normal rule of statutory construction” that “identical words used in

different parts of the same act are intended to have the same meaning.” 30

Calton is also consistent with how our criminal statutes speak about levels or

“degree[s]” of offenses.31 For instance, Article 42.01 of the Code of Criminal Procedure,

describing the requisites of “Judgment[s],” says that a criminal judgment “shall reflect” the

27 Gibson v. State, 995 S.W.2d 693, 696 (Tex. Crim. App. 1999). 28 T EX. C ODE C RIM. P ROC. art. 36.01. 29 Tamez v. State, 11 S.W.3d 198, 201 (Tex. Crim. App. 2000) (“Article 36.01 . . . merely proscribes the reading of prior convictions that are enhancements only. Thus, standing alone, article 36.01 does not dispose of the issues, either.”). 30 Keller, 173 S.W.3d at 498 (quoting Gustafson v. Alloyd Co., Inc., 513 U.S. 561, 570 (1995)). 31 T EX. C ODE C RIM. P ROC. art. 42.01, § 1(14). OLIVA (DISSENT)—7

“degree of offense for which the defendant was convicted.” 32 We have previously

acknowledged that, while the word “conviction” may encompass a finding of guilt as well

as “the assessment of punishment,” “the word ‘convicted’ is more likely to refer solely to

guilt than the word ‘conviction’ is.”33 And it seems especially unlikely that the Legislature

intended the broader, punishment-inclusive meaning of the word “convicted” in this context,

since the words “conviction” and “sentence” are used in contradistinction from one another

elsewhere in the statute.34

So the Legislature evidently intends that any fact issue affecting the “degree of

offense” will ordinarily be resolved at the time that the defendant is “convicted,” i.e., at the

moment he is adjudicated guilty of an offense by the jury.35 This amply supports Calton’s

assertion that “[t]here can be no enhancement until a person is first convicted of an offense

of a certain degree.”36 And it means that the evidence necessary to resolve any such fact

issue should be submitted to the jury before any adjudication of guilt.

32 Id. 33 Ex parte White, 506 S.W.3d 39, 42–43 (Tex. Crim. App. 2016). 34 T EX. C ODE C RIM. P ROC. art. 42.01, § 1 (“A judgment is the written declaration of the court signed by the trial judge and entered of record showing the conviction or acquittal of the defendant. The sentence served shall be based on the information contained in the judgment.”). 35 Id. § 1(14); see also T EX. P ENAL C ODE §§ 12.21–12.35 (each stating that an individual “adjudged guilty of” an offense of a particular degree “shall be punished” according to the sentencing ranges therein described). 36 Calton, 176 S.W.3d at 233–34. OLIVA (DISSENT)—8

Of course, as the majority ably demonstrates,37 there are clearly expressed exceptions

to this general legislative preference for cementing the “degree of offense for which the

defendant was convicted” in the guilt phase of trial.38 But the important question is what rule

the Court should adopt in the absence of such a clear indication of legislative intent. I think

that our jurisprudence would be better served, and the lower courts’ future interpretive

endeavors made easier, by adopting a bright-line rule:39 Absent clearly expressed legislative

intent to the contrary, when a penal provision states that proof of a particular fact affects the

degree of offense (e.g., “is a Class A misdemeanor”), rather than just the applicable

punishment range (“is punishable as a Class A misdemeanor”), that fact must be proven in

the guilt phase of trial. This rule, applied to the language of Penal Code Section 49.09(a),

means that a defendant’s single prior DWI conviction must be proven in the guilt phase of

a second-offense DWI trial.

I would affirm the court of appeals for so concluding. Because the majority reverses

the court of appeals, I respectfully dissent.

Filed: May 23, 2018

Publish

37 Majority Opinion at 14–15. 38 T EX. C ODE C RIM. P ROC. art. 42.01, § 1(14). 39 Cf. Zarychta v. State, 44 S.W.3d 155, 162 (Tex. App.—Houston [14th Dist.] 2001, pet. ref’d) (“The law prefers, where possible, bright-line rules.”).