Brooks v. State

MEYERS, Judge,

dissenting.

The majority’s holding rests upon weak analogies and faulty interpretations of precedent. I dissent.

I. The Deadly Weapon Finding Analogy is Fatally Flawed

Based on precedent that the State’s declaration of intent to seek a deadly weapon finding does not have to be pled in the indictment, the majority holds that enhancements do not have to be pled in the indictment. But deadly weapon findings differ greatly from enhancement allegations.

A deadly weapon finding affects a defendant’s eligibility for probation and parole. See, e.g., Grettenberg v. State, 790 S.W.2d 613 (Tex.Crim.App.1990)(purpose of deadly weapon finding is to limit eligibility for probation or parole). A deadly weapon finding does not affect the range of punishment for which the defendant is eligible. Recently this Court reiterated that a deadly weapon finding is not part of the sentence. State v. Ross, 953 S.W.2d 748, 752 (Tex.Crim.App.1997). As one federal court noted, under Texas law, the effect of a deadly weapon finding on a felony conviction is to lengthen confinement under the sentence by restricting the defendant’s ability to obtain good time credit—it does not affect the range of punishment the defendant can receive. Ables v. Scott, 73 F.3d 591 (5th Cir.), cert. denied, — U.S. -, 116 S.Ct. 1696 , 134 L.Ed.2d 795 (1996). Enhancement allegations do affect the range of punishment. See, e.g., Pachecano v. State, 881 S.W.2d 537 (Tex.App.—Fort Worth 1994, no pet.)(enhaneement provision allows trial court to admit evidence of defendant’s prior convictions for assessment of punishment, while affirmative deadly weapon finding does not affect punishment but only affects amount of assessed sentence that must be served, and such affirmative finding does not implicate double jeopardy).

Because the deadly weapon finding is not part of the sentence and does not affect the number of years to be served or the amount of the fine assessed, we have recognized that a deadly weapon finding, as distinguished *36 from enhancement allegations, need not be included in the indictment:

“Everything should be stated in an indictment which is necessary to be proved.” Article 21.03, V.A.C.C.P. It was long ago held that “[ejvery circumstance constituting a statutory offense which would affect the degree of punishment, must be alleged in the indictment.” Long v. The State, 36 Tex. 6, 10 (1871). Thus, prior convictions to be used for enhancement of punishment under felony recidivist statutes must be pled in the indictment, and proof of an upheld prior conviction will not support an enhanced sentence. See Moore v. State, 154 Tex.Crim. 307 , 227 S.W.2d 219 (1950). This is true even though a prior offense alleged for enhancement is not really a component element of the primary offense, but only “an historical fact to show the persistence of the accused, and the futility of ordinary measures of punishment as related to him.” Sigler v. State, 143 Tex.Crim. 220 , 157 S.W.2d 903, 904 (1942). It is at least arguable that use or exhibition of a deadly weapon is similarly a “circumstance constituting a statutory offense which would affect the degree of punishment,” and hence “must be alleged in the indictment.”

However, the affirmative finding at issue here affects not so much the degree of punishment as its character. Once paroled, the convict remains in the constructive custody of the State for the full duration of his sentence.

Ex Parte Patterson, 740 S.W.2d 766, 776 (Tex.Crim.App.1987), overruled on other grounds by Ex Parte Beck, 769 S.W.2d 525, 528 (Tex.Crim.App.1989). The majority says Patterson’s discussion about enhancement allegations is dicta because the issue in that case was whether a deadly weapon finding must be pled in the indictment. Patterson’s holding rests in large part, if not exclhsively, on the distinction drawn between deadly weapon findings and enhancement allegations. Without its conclusions regarding the nature of enhancement allegations, its holding as to deadly weapon findings would lack foundation. If this is dicta, it is at least persuasive.

More important than Patterson is one of the cases upon which it relies, Parasco v. State, 165 Tex.Crim. 547 , 309 S.W.2d 465 (1958). The majority says Parasco is not controlling because in that case the “the pri- or conviction was an element of the offense.” The majority further asserts that the Court’s statement there that the enhancement must be pled in the indictment is an “alternate holding,” and therefore dicta. But this is not exactly correct.

The statute upon which Parasco was convicted included two sections, one applicable to first time offenders and the other applicable to defendants previously convicted of violating the statute. 1 We viewed the statute as describing two separate offenses: violation of the statute, and violation of the statute by one previously convicted of violating the statute 2 . We held that “[a]n accused is entitled *37 to proper notice in the indictment of any prior conviction which the State seeks to use in connection with a primary offense, whether it be an element of the offense or for enhancement of ‘punishment.” Parasco, 309 S.W.2d at 467 (emphasis added). The fact that the prior conviction was considered an element of the offense was not the reason we held it had to be pled in the indictment. Ultimately we granted relief, stating that “[i]n the absence of an allegation in the indictment that the prior conviction for heroin would be relied upon for enhancement of the punishment in connection with the primary offense of possession of isonipeeaine, as charged in the first count, the conviction thereunder cannot be sustained.” Id.

The majority says the pertinent part of Parasco was overruled in Bell v. State, 504 S.W.2d 498 (Tex.Crim.App.1974). But Bell did not affect the portion of Parasco’s holding that enhancement allegations must be pled in the indictment. Rather, Bell pointed out that Parasco’s characterization of the enhancement allegations as an element of the offense under the controlling statute was no longer valid under the revised version of that statute. Under the revised statute, the prior conviction was “clearly for enhancement purposes, and not an element of the offense.” Bell 504 S.W.2d at 501 . Parasco was overruled to this limited extent. Recognizing this change in the statute does nothing to undermine Parasco’s holding that “[a]n accused is entitled to proper notice in the indictment of any prior conviction which the State seeks to use in connection with a primary offense, whether it be an element of the offense or for enhancement of punishment.” Parasco, 309 S.W.2d at 467 (emphasis added).

II. Enhancement Allegations Operate Differently in Capital and Non-capital Cases

Article 21.03 of the Code of Criminal Procedure provides that “[everything should be stated in an indictment which is necessary to be proved.” The majority says we have interpreted this provision to mean that an indictment must include “everything necessary to be proven to sustain a conviction in the guilVinnocence phase.” Sharp v. State, 707 S.W.2d 611, 624 (Tex.Crim.App.1986), cert. denied 488 U.S. 872 , 109 S.Ct. 190 , 102 L.Ed.2d 159 (1988). The majority relies on Sharp and its progeny, specifically Rosales v. State, 748 S.W.2d 451 (Tex.Crim.App.1987), cert. denied 487 U.S. 1241 , 108 S.Ct. 2917 , 101 L.Ed.2d 949 (1988), but those cases do not support the majority’s position.

Sharp and Rosales held that punishment special issues do not need to be pled in the indictment in capital murder cases. This makes sense in light of section 12.31 of the Texas Penal Code, which provides that there are only two punishment options in capital eases: life imprisonment and death. See Ex Parte Granviel 561 S.W.2d 503, 515 (Tex.Crim.App.1978). Enhancement allegations do not “enhance” the sentence of a defendant adjudged guilty of a capital offense. In non-capital felonies, however, enhancement allegations alter the range of punishment to which a defendant may be subjected. For example, where the sentence is enhanced under Section 12.42(a)(1) of the Texas Penal Code the defendant is potentially subject to confinement for 400% more time than he would be if the sentence was not enhanced. See also Texas Penal Code §§ 12.34 and 12.35.

Conclusion

The majority’s opinion is not supported by precedent and is an unnecessary and harmful change to longstanding jurisprudence. The majority’s opinion is also bad policy. It relegates punishment issues to ancillary pleadings, as if the question of punishment is somehow an ancillary issue. For the reasons stated in this opinion, I dissent.

BAIRD, J., joins.

. Parasco was decided before the 1965 Code of Criminal Procedure, and well before the earliest versions of the enhancement .provisions currently included in the Penal Code. Sections 12.42 and 12.43 had their genesis in Acts 1973, 63rd Leg., p. 883, ch. 399, § 1, eff. Jan. 1, 1974.

. Parasco was prosecuted under the Uniform Narcotic Drug Act, found in Article 725b of the Penal Code (as amended by Acts of the 53rd Legislature, p. 812, Ch. 328, and Acts of the same Legislature at its first called session, p. 103, Ch. 50, and as to punishment, by Acts of the 54th Legislature, p. 903, Ch. 354).

The punishment for the unlawful possession of a narcotic drug was delineated in Section 23(1) of that Article:

'Any person violating any provision of this Act shall, upon conviction be punished by confinement in the State penitentiary for not less than two (2) years nor more than life, and upon the second or any subsequent conviction therefor shall be punished by confinement in the penitentiary for life or for any term of years not less than ten (10), and the benefits of the suspended sentence law shall not be available to a defendant convicted for [ 165 Tex.Crim. at 549 , 309 S.W.2d 465 ] a violation of the provisions of this Act; provided that any person convicted of a first offense violation of this Act shall be entitled to the benefits of probation under the Adult Probation and Parole Law, as provided therein.’

We concluded that this section describes two different offenses:

It is apparent that the possession of a narcotic drug by one who has been previously convicted of violating the Uniform Narcotic Drug Act is a different offense from that of a first offender; provides a different minimum punishment, and *37 permits the benefits of the Adult Probation and Parole Law to first convictions only.

Parasco, 309 S.W.2d at 466 .