comparing identical “would not have been convicted” phrase in Article 11.073(b)(2) with that in Article 64.03(a)(2)(A) and rejecting idea that “convicted” encompasses more than a finding of guilt
How later courts described this case
- comparing identical “would not have been convicted” phrase in Article 11.073(b)(2) with that in Article 64.03(a)(2)(A) and rejecting idea that “convicted” encompasses more than a finding of guilt
- prior construction of identical phrase in another statute is evidence the phrases mean the same thing
- noting that “[a]rticle 11.072 filers . . . include individuals on regular community supervision and deferred adjudication”
- “While not considered a final conviction for the purpose of Article 11.072 and many enhancement statutes, a judgment imposing regular community supervision is in fact a conviction with an assessed sentence, though that sentence is not imposed, and such a conviction is final for some purposes.”
Written by the judges who cited it.
The opinion
CONCURRING OPINION
RICHARDSON, J.,
filed a concurring opinion in which HERVEY and NEWELL, JJ., joined.
I agree with the Court’s interpretation of the statutory language in question. It would seem that the plain language of Article 11.073 restricts the meaning of the phrase, “would not have been convicted,” to apply only to the verdict of guilt and not to the assessment of punishment. This is consistent with the Court’s interpretation of this exact phrase in Ex parte Gutierrez, 337 S.W.3d 883, 901 (Tex. Crim. App. 2011). And, as noted by the majority, Gutierrez was decided two years before Article 11.073 was enacted. The Legislature was aware of how the phrase, “would not have been convicted,” would be interpreted by this Court. Had the Legislature intended Article 11.073 to apply to punishment, it could have explicitly said so. Therefore, I join the majority.
However, this is a harsh result, particularly in a death penalty case where the jury is often asked to evaluate expert scientific testimony and scientific evidence in assessing whether the death penalty is the proper punishment. The points made by the dissenting opinion are valid. In my opinion, Article 11.073 should have been written to apply to both the guilt and punishment phases of a trial—at least a death penalty tidal.