Petition for Writ of Certiorari — Robert Lee Crider, Petitioner v. Eric Guerrero, Director, Texas Department of Criminal Justice, Correctional Institutions Division

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SUPREME COURT OF THE UNITED STATES

ROBERT CRIDER

PRO SE PETITIONER

filed

OCT 2 t 2024

S U P R^vlECol )RrLnf

vs

BOBBY LUMPKIN. DIRECTOR, T.D.C.J. -C.I.D.

RESPONDENT

On Petition for Writ of Certiorari to

the United States Court of Appeals for

the Fifth Circuit USAP5 23-50918

PETITION FOR WRIT OF CERTIORARI

Robert Crider, Pro Se T.D.C.-J. -l.D. 2230764

McConnell Unit 3001 S. Emily Dr. Beeville, Texas 78102

Lead Counsel for RespondentNathan Tadema. A. A. G.,

Texas Attorney General's Office Post Office Box 12548 Austin. Texas 7871 1 -2548

Page 1 of 37

RECEIVED

APR 1 0 2025

]: (BOLD) QUESTIONS PRESENTED

(BOLD) Question # 1:

When Crider showed the district court that his 1990 convictions were not defined as

authorized elements of the instant offense within the true meaning of Acts 2005. 79th Leg.. Ch.

996. Secs. 3: 4. eff. 90 -2005. but that it was only by ex post facto application of the 2005 law to

CONTROL THE USE of his 1990 convictions that the trial court claimed felony jurisdiction: and

when Crider demonstrated to the Fifth Circuit that reasonable jurists would find the district

court's assessment of his constitutional claims debatable or wrong because EVERY case-law the

district court applied to excuse the State's constitutional violations was error or abuse due to its

misunderstanding of law; but the Fifth Circuit then necessarily evaluated Crider's petition under

an erroneous theory of law because it misunderstood what Crider's claim was and failed to

liberally construe his pleadings, did the Fifth Circuit abuse its discretion in denying Crider

COA?

(BOLD) Question # 2When jurisdiction of the subject matter exists solely by reason of the authority vested in

the court by the constitution and statutes and Acts 2005, 79th Leg.. Ch. 996. Secs. 3 and 4

conferred authority on the trial court to act only in some situations but did not confer authority

to act when the statute's requirements were not satisfied, but the trial court issued a judgment

of felony conviction under the statute when its requirements were not satisfied, was the trial

court's felony jurisdiction only a product of the ex post facto application of the 2005 law, meaning

Crider is actually innocent of both felony DW1 and habitual criminal enhancement, and did the

Fifth Circuit consider his claim under the wrong theory of law when i t denied him COA on a

misunderstanding of his claim?

III. TABLE OF CONTENTS

COVER PAGE ............................................................................

page 1

Questions Presnted ...........................................................

page i

List of Proceedings .........................................................

page ii

Table of Contents .............................................................

page iii

Table of Authorities ......................................................

page iv

Secondary Sources .............................................................

page v

Jurisdiction ........................................................................

page 2

Constitutional Provisions ............................................

page 2

Statement of the Case ....................................................

page 2

Reasons To Grant Certiorari .......................................

page 3

Background ............................................................................

page 3

Argument ................................................................................

page 6

Dual Purpose of The Act ................................................

page 8

Ex Post Facto in District Court ..............................

page 9

Retroactive Application and Increase in Penalty

page 9

Failure to Distinguish ............................ .....................

page 10

Recidivism Cases Inapplicable ...................................

page 13

The Date .................................................................................

page 15

Western District of Texas .......................................

page 21

Fifth Circuit .................................................................

page 22

Summary -..............................................................................

page 23

Issue #1: Ex.Post Facto/Due- Process Violation

page 23

Issue #2: Actual Innocence Under Haley ...........

page 25

Harm .....................................................................................

page 26

Conclusion ........................................................................

page 28

Prayer ................................................................................

page 30

Appendix ............................................................................ --------------------- page 3^

App. Item #1: Crider v Lumpkin, Civ. No.,SA-22-CA-0498-XR,

2023 U.S.Dist.LEXIS 208255 (W.D.Tex Nov.20,2023,unpublished)

pages f -l&of Appendix

App. Item #2: Crider v Lumpkin,No. 23-50918,2024 U.S.App

LEXIS 32655 (5th Cir.July 24,2024,unpublished)

pages

of Appendix

Certificate of Service..................................................

IV: table of authorities

Adams v State. 707 SW2cl 900 (Tex Grim App 1980) Apprendi vNew Jersey. 530 US 466 (2000)

Barfield v State, 63 SW3d 446 (Tex Grim App 2002) Black v Davis. 902 F3d 541 (5th Cir. 2018)

Brinkmann v Dali. Cnty. Dep. Sheriff Abner. 813 F2d 744 (5th Cir. 1987) Cal. Dept, of Corr. v

Morales. 514 IJS 499 (1995) Calton v State, 176 SW3d 231 (Tex Grim App 2005) Carmel1 v Texas.

529 US 513 (2000) Combs v Health Care Serve. Corp., 401 SW3d 623 (Tex. 2013) Crider v

Lumpkin. 2023 US Dist. LEXIS 208255 (WD Tex 2023) Crider vLumpkin. No. 23-50198 (5th Cir.

Filed July 24. 2024) Dickens v State, 981 SW2d 186, 188 (Tex Crim App 1998) Dretke v Haley,

541 US 386 (2024) Ex parte Benson. 459 SW3d 67 (Tex Crim App 2015) Ex parte Crider. No. 92095-01 (Tex Crim App 2021) Ex Parte Crider, No. 92-095*02 (Tex Crim App 2022) Ex Parte

White, 506 SW3d 39 (Tex Crim App 2016) Flowers v State, 815 SW2d 724 (Tex Crim App 1991)

Garcia v Dial. 596 SW2d 524 (Tex Crim App 1980) Gibson v State. 995 SW2d 693 (Tex Crim App

1999) Gryger v Burke. 334 US 728 (1948) Henson v Santander Consumer USA Inc., 582 US 79

(2017) In re T. V. T.. 675 SW3d 303 (Tex. 2023) Knight vInternationalHarv. Cred. Corp., 627

SW2d 382 In re Winship.. 397 US 358 (1970) (Tex 1982) Koon v United States. 518 US 81 (1996)

Landgraf v U. S. 1. Film Prods., 511 US 244 (1994) Magwood v Patterson, 561 US 320 (2010)

Miller v Florida, 482 US 423 (1987) Oliva v State, 548 SW3d 518 (Tex Crim App 2018) Perez v

Sturgis Pub. Sell.. 598 US 142 (2023) Pulsifer v United States. 601 US 124 (2024) Quick v City of

Austin. 7 SW3d 109 (Tex 1999) Slack vMcDaniel. 529 US 473 (2000) Sportatorium. Inc. v State.

104 SW2d 912 (Tex Civ App 1937) State vMason, 980 SW2d 635 (Tex Crim App 1998) United

States v Bass. 404 US 336 (1971) United States v Harriss, 347 US 612 (1954) United States v

Uni Oil. Inc., 710 F2d 1078 (5th Cir. Tex. 1 983) Warren vMiles, 230 F3d 688 (5th Cir. 2000)

Weaver v Graham. 420 US 24 (1981) Weaver v State. 87 SW3d 557 (Tex Crim App 2002) Zuni

Pub. Sch. Dist. No. SO v Dept. ofEduc.. 550 US 81 (201 7) STATUTES: 28 USCS 1254(1) 28 USCS

2253(e)(2) 28 USCS 2254 Acts 1983, 68th Leg.. Ch. 303. Secs. 3. 28(b) and (e). eff. Jan. 1. 1984

Acts 1993, 73rd Leg, Ch. 900, Secs. 1.01, 1.15, 1.18, eff. Sept. 1, 1994 Acts 2001, 77th Leg, Ch.

648. Sec. 3. eff. Sept. 1. 2001 Acts 2005. 79th Leg. Ch. 996, Secs. 3. 4. eff. Sept. 1, 2005 Penal

Code. 49.09 Penal Code. 49.09(b) Penal Code. 49.09(b)(2) Penal Code. 49.09(e) Penal Code,

49.09(f) Rev. Stat. 6701/-l(i) Revised Civil Statutes, Art, 6701/-1 T.C.C.P, art. 28.10 V.A.C.C.P,

art. 21.19

Pagers

SECONDARY SOURCES

Texas Criminal Practice and Procedure Texas Practice: Texas Criminal Law Senate Research

Center

Reading Law: The Interpretation of Legal Text. Antonin Scalia + Brian A. Gamer, with

associated page numbers.

Page |

II: LIST OF PROCEEDINGS

In October 2018 Crider was found guilty of felony DW1 (enhanced as a habitual offender) and

sentenced to seventy years of imprisonment. State v Crider. No. B1S73 (198th Dist. Ct. Kerr

Cntv, Tex. Oct. 26. 2018). The Texas Fourth Court of Appeals affirmed Crider's conviction in an

unpublished opinion on direct appeal. Crider v State, No. 04-08‘00856-CR (Tex App, San Antonio

Sept. 4. 2019. pet. granted Jan. 15. 2020). After granting Crider's petition for discretionary

review and hearing oral argument, the Texas Court of Criminal Appeals affirmed the judgment

of the court of appeals in a published opinion delivered September 16. 2020. Crider v State, 607

SW3d 305 (Tex Crim App 2020). The United States Supreme Court then denied Crider's request

for writ of certiorari. Crider v Texas. 141 S.Ct. 1384 (2021). Following direct appeal proceedings,

on Application for State Habeas Corpus under C.C.P. 11.07 Crider presented his ex post

facto/due process claim challenging the constitutionality of his conviction for the first time. It;

was "denied without written order." Ex parte Crider, No. 92-095-01 (Tex Crim App May 26,

2021). Thereafter. Crider filed a second state habeas corpus application on actual innocence

challenging the same constitutional violations under Schlup vDelo but the TCCA dismissed the

application as a successive petition pursuant to Tex. Code Crim. Proc. Art. 11.07, Sec. 4. Ex parte

Crider. No. 92-095-02 (Tex Crim App April 27, 2022). Following State proceedings, on May 11.

2022, Crider filed a 28 USC 2254 petition for federal habeas corpus challenging the violation of

his ex post facto/due process rights. The federal district court denied both habeas and COA.

Crider v Lumpkin. 2023 U.S. Dist. LEXIS 208255 (W.D. Tex. Nov. 20, 2023). Then, under 28

USC 2253 Crider petitioned, and on July 24, 2024 the Fifth Circuit denied COA. Crider v

Lumpkin. No. 23-50918 (5th Cir. July 24, 2024).

IN THE

SUPREME COURT OF THE UNITED STATES

PETITION FOR WRIT OF CERTIORARI

Petitioner respectfully prays that a writ of certiorari issue to review the judgment below.

OPINIONS BELOW

(Vl^For cases from federal courts:

A

The opinion of the United States court of appeals appears at Appendix^

the petition and is

[ ] reported at________________________________________ ; or,

[ ] has been designated for publication but is not yet reported; or,

M is unpublished.

The opinion of the United States district court appears at Appendix

the petition and is

to

[ ] reported at

; or,

[ ] has been designated for publication but is not yet reported; or,

\\X is unpublished.

[ ] For cases from state courts:

The opinion of the highest state court to review the merits appears at

Appendix_____ to the petition and is

[ ] reported at

; or,

[ ] has been designated for publication but is not yet reported; or,

[ ] is unpublished.

The opinion of the_

appears at Appendix

court

to the petition and is

[ ] reported at

; or,

[ ] has been designated for publication but is not yet reported; or,

[ ] is unpublished.

1.

JURISDICTION

The Court has certiorari jurisdiction under 28 USCS 1254(1). Crider first presented his ex

post facto/due process claim on state habeas. It. was "denied without written order." Ex parte Crider.

No. 92-095-01 (Tex Crint App Mav 26. 2021). CrjcUr f\0U>

UL&hplEMS

&>' M

of C 6^ 6a

1

CONSTITUTIONAL PROVISIONS

u

Q^Vist,

'For an ox post facto violation to occur, two elements must bo present: (l) a law must be retrospective, that

is. it must apply to events occurring before its enactment, and (2) the new law must create a sufficient risk of

increasing the punishment attached to the defendant's crimes." Crider VLumpkin, 2023 U.S. Dist. LEXIS

208255, *8-9 (W.D. Tex. 2023) (quoting Warren vMiles, 230 F3d 688, 692 (5th Cir. 2000) (citing

Cal. Dept, of Coir, vMorales. 514 US 499, 509 (1995)).

'The lex post facto] clause is. of course, also aimed at other concerns, 'namely, that legislative enactments

give fair warning oftheir effect and permit individuals to rely on their meaning until explicitly changed' " (by the

Legislature], Weaver v Graham. 4 50 US 24. 29 (1981); Miller v Florida. 482 US 423. 430 (1987)

(citations omitted); and at reinforcing separation of powers." Wom-er r Graham. 420 US 24. 29 n. 10

(19S1).

STATEMENT OF THE CASE

Acts 2005. Sec. 4 makes proof of the date a conviction was committed requisite to determining which version

ol the felony 1)\V1 law defines it as authorized or prohibited from use as an element. Reiving on a case that

erroneously applied the absurdity doctrine to mask its due process violation, the district court redefined "authorized

element " by declining effect to the "proof of date" requirement of the 2005 law. and violated ex post

facto/due process by retroactively applying the 2005 law to define Crider's 1990 convictions as

"authorized." contrary to the 2005 law itself. Then, refusing to distinguish prior conviction

Page 2 of 37

punishment enhancers from prior conviction elements, the court erred in applying recidivism

caselaw to excuse the ex post facto application of the 2005 law. Minus the ex post facto

application of the 2005 law, Crider could have been convicted of a misdemeanor at most. The

Fifth Circuit erred in denying Crider COA.

REASONS TO GRANT CERTIORARI

Apprendi v New Jersey. 530 US 466 (2000) unfairly referred to prior convictions as if they

were all the same. Because this Court has not authoritatively distinguished prior convictions

employed as elements of resulting offenses from those used in recidivism cases, State and federal

courts below refuse to PROPERLY distinguish them. Thus, this Court's intervention is necessary

to ensure that the circuits, federal district courts and the States correctly recognize

constitutional rights in the context of prior conviction elements. Also, in a case of first

impression, the court should authoritatively define 4^ courts abuse of the absurdity doctrine —

a due process violation that deprives the defendant of a fair and impartial trial, as ftijjW^oucbed

on

Pulsifer v United States. 601 US 124, 180-181 (2024), because it permits ftggs knowing

the use of false evidence."

BACKGROUND

Crider's 1990 (CR89-1510 and CR90-502) Kerr County Texas Court at Law convictions

were committed under Texas Revised Civil Statutes 6701/-l(i), which provides in pertinent part:

"(i) A conviction may not ho used for purpose of enhancement under Subsection (d) or (e) of this article if 0)

the conviction was a final conviction under the provisions of Subsections (g) and (h) of this article and was for an

offense committed more than ten years before the offense for which the person is being tried was. committed: and (2)

the person has not been convicted of an offense under Subsection (2). Subsection (a). Section 19.05. Penal Cod e oi-

Page 3 of 37

Article 6701/-1. or Article 6701/-2, Revised Statutes, committed within 10 years immediately preceding the date on

which the offense for which the person is being tried was committed."

Subsections (cl) and (e) of Revised Statutes 6701/-] provide: "(d) If it is shown on the trial of an

offense under this article that the person has previously been convicted omPfmie ofmn offense under this article, the

offense is punishable by ...

Rev. Stat, 670l./-l(i) was enacted by Acts 1983, 68th Leg., Ch. 303, Sec. 3, eff. 1-L1984,

which contained its own savings clause: see Acts 1983, 68th Leg., Ch. 303, Secs. 28(b) and (c) eff.

Jan. 1, 1984:

"(b) The changes in law made by this Act for the punishment of an offense under Article 6701/-l. Revised

Statutes, as amended, apply only to the punishment for an offense committed on or after the effective date of this

Act. For purposes of this section, an offense is committed before the effective date of this Act only if any element of

the offense occurs before the effective date, (c) An offense committed before the effective date of this Act is covered by

the law in effect when the offense was committed, and the former law is continued in effect for this purpose.”

In the 1993 felony DWI amendment, Rev. Stat. 6701./-1 (i) became Penal Code 49.09(e).

Acts 1993, 73rd Leg.. Ch. 900. eff. 9-1-1994, Sec. 1.15 repealed Rev. Stat. 6701/-1. Sec. 1.01

reenacted 6701 /-1 (i) in substantially the same form as Penal Code 49.09(e). and Sec. 1.18 limited

application of that repeal and continued 6701 /-I(i) in effect exclusively to CONTROL THE USE

of Crider's 1990 convictions as "elements" of a resulting felony DWI. Acts 1993. 73rd Leg. Ch. 900.

Sec. 1.18(a) and (b), eff. Sept. 1, 1994:

"(a) The change in law made by this article applies only to an offense committed on or after the effective date

of tliis article. For purposes of this section, an offense is committed before the effective date of this article if anv

element of the offense; occ urs before the effective date, (b) An offense committed before the effective date of this

article is covered by the law in effect when the offense was committed, and the former law is continued in effect for

that purpose."

Page 4 of 37

Then,, in 2001 the Penal Code 49.09(e) provisions were amended but Sec. 3 of Acts 2001.

77th Leg. Ch. 648, eff. Sept. 1. 2001, limited application of that amendment and continued 6701/1(0 in effect exclusively to CONTROL THE USE of Crider's 1990 convictions as "elements" of a

resulting felony DWL

''The change in law made by this, Act applies only to the enhancement of punishment at the trial of an

offense committed on or after llu* effective date of this Act. The enhancement of punishment at the trial of an offense

committed before the effective date of this Act. is covered by the law in effect when the offense was committed, and

the former law is continued in effect for that purpose. For purposes of this section, an offense was committed before

the effective date of this Act: if any element of'lhe offense occurred before that date."

Finally, in Acts 2005. 79th Leg.. Ch. 996, eff. 9-1-2005, Sec. 3 repealed Pen. Code 49.09(e)

and Sec. 4 limited application of that repeal and continued 6701 /-1 (i) in effect exclusively to

CONTROL THE USE of Crider's 1990 convictions as "elements" of a resulting felony DWL Acts

2005. 79th Leg., Ch. 996, Secs. 3 and 4, eff. 9-1-2005 provide: "SECTION 3. Sections 49.09U4 and (f).

Penal Code, are repealed."

"SECTION 4. The changes in law made by this Act apply only to the penalty 1...] for an offense under

Chapter 49. Penal Code, that is committed on or after the effective date of this Act. The penalty 1...J for an offense

under Chapter 49. Penal Code. that, was committ ed before the effective date of this Act are covered by the law in

effect when the offense was committed, and the former law is continued in effect for that purpose. For purposes of

this section, an offense was committed before the effective date of this Act if any element of the offense was

committed before that date."

Crider was arrested for the instant offense of felony DW1 on Oct. 3. 2017.

To charge a felony the State alleged as "elements" in Crider's indictment his 1990 convictions. The

1990 convictions are prohibited from that very use by the "continued in effect" Rev. Stat. art. 67017-

Page 5 of 37

l(i) because there exists no "intervening conviction" that can authorize use of the remote convictions

as elements of the instant offense. See Rev. Stat. 6701/*l(i).

ARGUMENT

The key section of Acts 2005. 79th Leg., Ch. 996 (HB 51). is Sec. 4. Interpreted as a whole,

specific controlling the general, every word effective, Sec. 4 modifies the substantive provisions of

the felony DWI law, including Sec. 3 of the Act and Penal Code 49.09(b)(2). In other words,

unless a prior conviction was committed on or after 9-1-2005 as mandated by Sec. 4, Sec. 3 and

the 2005 Penal Code 49.09(b)(2) are inapplicable. Thus, coverage under the Act is limited to

offenses in which every element of the offense was committed on or after 9-1-2005. In any event.

two prior convictions committed on or after 9-1-2005 are prerequisites to coverage under the Act.

See Acts 2005. 79th Leg., Ch. 996 (HB 51), Secs. 3. 4, eff. 9-1-2005 also Dickens v Stale, 981

SW2d 186. 188 (Tex Crim App 199S):

"The savings clause unambiguously provides that the former law |...] applies to an offense when any element

of the offense was committed before the effective date of the new law. [....] The savings clause does not pertain to the

completion of the offense hut rather to the commission of the offense for the purpose of classification and penalty.

[...] This interpretation does not lead to absurd results because one could reasonably conclude that the legislature

intended for the old penalties to attach to a scheme or continuing course of conduct that was begun before the

effective date of the new law."

Also cf. United States v Harriss 347 US 612. 619 (1954) (construing savings provisions).

The Government's construction is much broader -namely that, considering the date the prior

conviction was committed as an element produces the absurd result of preventing the change in

law from applying retroactively to prior convictions committed before 9-1-2005. so the date is not

an element and the prior conviction was committed after 9-1-2005. regardless of when it was

Page 6 of 37

actually committed. Crider v Lumpkin, 2023 US Dist. LEXIS 208255. *6*7 (WD. Tex. 2023)

(applying State vMason. 981 SW2d 635. 640 (Tex Crim App 1998):

"Viewing- the date of the prior conviction as being an element of [Sec.] 46.04 would result in the absurd

consequence of omitting all felons who committed their prior felonies before September ], 1994 from the coverage of

ISoc.l 46.04. The legislative history of [Soc.l 1.IS of Senate Bill 1067 reveals it was written to make application of the

revisions of the Penal Code prospective. SENATE RESEARCH CENTER, BI LL ANALYSIS OF ENROLLED

LEGISLATION. S.B. 1067. 73rd Leg., R.S. (17).").

That construction does violence to the language and terms of Sec. 4 as well as its statutory

and legislative history. See Dickens v State. 981 SW2d 186. 188 (Tex Crim App 1998):

"The savings clause unambiguously provides that the former law (i.e. second-degree felony punishment.)

applies to an offense when any element of that offense was committed before the effective date of the new law (i.e.

third-degree felony punishment). Appellant's argument calls for an extrapolation of the law that defies the plain

meaning of t he amendatory legislation. [...1 Furthermore, we need not resort to I...I exfcrancous'means when the

plain meaning of the statute is. evident. The savings clause does not pertain to the completion of the offense, but

rather to the commission of the offense for the purpose of classification and penalty."

Thus, if the construction urged hy the Government is to become law, that is for the

Legislature to accomplish by further legislation. Cf. United States v Harriss. 347 US 612. 619620 (1954) (construing savings provisions).

The statutory history of the Act makes clear that the Legislature's demand for proof of the

date on which the prior conviction was committed is to not: abate the former law but instead to

ensure that: none other than the law under which a conviction was committed CONTROLS THE

USE of the prior conviction as an element of a resulting felony, thereby classifying and

penalizing Crider's particularly charged DWL Dickens r State. 981 SW2d 186. 188 (Tex Crim

App 1998). Therefore, the date the prior conviction was committed is part of the statutory

Page 7 of 37

definition of the instant offense. It is likewise clear that the Legislature did not intend for Sec.

3's change in law. by application to the primary offense, to be indirectly and retroactively applied

to CONTROL THE USE of prior convictions committed before 90-2005 as elements, as the

Government's expanded construction permits, or else it would not have employed in the

amending legislation of Acts 2005, 2001. 1993, and 1983, precisely crafted statutory construction

. - ^savings clauses-^specifically forbidding that very application. See Quick v City ofAustin. 7

tool.<

SW3d 109, 128-129 (Tex. 1999):

"The genera] rule is that when a statute is repealed without a savings clause limiting the effect of the repeal,

the repeal of that statute is usually given immediate effect. See Knight v International Harvester Credit Carp.. 627

SW2d 382. 38-1 (Tex. 1982). When a right or remedy is dependent on a statute, the unqualified repeal of that statute

operates, to deprive the party of all such rights that have not become vested OR REDUCED TO FINAL JUDGMENT

[emphasis added]. I...] The repeal of the statute in such instances deprives a court of subject matter jurisdiction over

the cause. See Knight. 627 SW2d at 384 Dickson, 139 S\V2d at. 259. THIS COMMON LAW RULE OF ABATEMENT

MAY BE MODIFIED BY A SPECIFIC- SAVINGS CLAUSE IN THE REPEALING LEGISLATION or by a general

savings statute limiting the effect of repeals, [emphasis added]."

DUAL PURPOSES OF THE ACT

By its own terms, Acts 2005. Ch. 996 has dual Legislative PURPOSES: (l) Sec. 3 is

intended to prevent the attachment of any limitation of use to DWI's committed AFTER 9-12005. And. (2) Sec. 4 is intended to prevent the Sec. 3 change in law from being retroactively

applied, either directly or indirectly, to convictions that were committed BEFORE 9-1-2005

thereby ensuring that THE ONLY LAW THAT EVER CONTROLS THE USE OF ANY

CONVICTION as an element of a resulting felony is the law that was in effect when the prior

Page 8 of 37

offense was committed. Acts 2005. 79th Leg., Ch. 996. Secs. 3, 4. eff. 9-L2005. See also Pulsifer

v. United States, 601 U.S. 124. 179 (2024):

"We do not presume that a law performs only one "function" or "role." but recognize that almost every

piece of legislation seeks to serve many competing purposes. Perez r. Sturgis Pub. Sell.. 598 U.S. 142, 150 [...] (2023)

[other citations omitted!. We do not. suppose' that a lav,' pursues any of those competing purposes to its logical end,

acknowledging instead that almost every law is the product of compromise. Perez r. Sturgis Pub. Sell.. 598 U.S. 142.

150 [...] (2023). And we do not displace ordinary statutory terms with judicial "speculation as to Congresses] intent,"

Magwood r. Patterson. 561 U.S. 320, 334 [...] (2010), because the American people have consented to be governed by

the written laws their elected representatives adopt, not by the conjecture of ot hers, see United States r. Bass, 404

U.S. 336, 348 (1971). For all these reasons and more, "it is quite mistaken to assume," as the government, does,

"that whatever may appear to further the statute's primary objective must be law." Henson v. Santander Consumer

USA ]nc., 5S2 U.S. 79. 89 (2017) (internal quotation marks and alterations omitted)."

EX POST FACTO IN DISTRICT COURT

The district court (hereafter "DC") in Crider provided:

"For an ex post facto violation to occur, two elements must be present" (!) a law must be retrospective, that

is. it must apply to events occurring before its enactment, and (2) the new law must create a sufficient risk of

increasing the punishment attached to the defendant's crimes.' [citations omitted]. Here, the new law creates a

sufficient risk of increasing the punishment attached to [Crider's] crime. Therefore, the only issue is whether the

new law. as applied to [Crider'sJ case, is retrospective." Crider v Lumpkin. 2023 U.S. Dist. LEXIS 208255,

8-9 (W.D. Tex., Nov. 20, 2023).

RETROACTIVE APPLICATION and INCREASE IN PENALTY

The 2005 law is undeniably applied retroactively to CONTROL THE USE of Crider’s 1990

convictions, contrary to the explicit prohibition of the 2005 law itself; because prospectively

applied the 2005 law requires the State to prove the dates the convictions were committed, which

Page 9 of 37

demands that Rev. Stat. 6701/-] (i) controls the use of the 1990 convictions and that law requires

proof of an intervening conviction. See Rev. Stat. 6701/-l(i). See also Warren vMiles. 230 F3d

688. 692 (5th Cir. 2000) (citing Garner v Jones, 120 SCt 1362. 1370 (2000):

"In evaluating an alleged violation of the ex post facto doctrine, the court must rigorously analyze the level of

risk that an inmate's prison stay will be longer hecause of a change in law that applies retroactively."

Because there is no intervening conviction available Crider Could have been convicted of

no more than a misdemeanor, but the retroactive application and circumvention of the burdens

o04S

of proof increased Crider's two-year maximunvjail sentence to seventy years in prison. So truly

the only issue is whether the DC erred and abused its discretion in excusing Texas' ex post facto

violation.

FAILURE TO DISTINGUISH

Crider begins with an issue the Supreme Court has not. but should, settle., i.e..

distinguishing prior conviction "elements" from prior conviction "punishment enhancers." The DC

erred when rather than recognizing the use of prior convictions as "elements" under Penal Code

49.09(h)(2). it considered them punishment enhancers. Crider vLumpkin. 2023 U.S. dist. LEXIS

208255, *6-9 (W.D. Tex. 2023). See Barfield v State, 63 SW3d 446, 448 (Tex Grim App 2002):

"The two previous convictions of DW1 arc* jurisdictional elements of the offense of felony DW], which must be

alleged to invoke the jurisdiction of the felony court and which must he proved to obtain a conviction of felony DYV1."

"A statutorily prescribed aggravating fact plays one of three roles in enhancing an offense: (1) creating a new

aggravated offense in which the aggravating fact is an element . (2) enhancing the level of t he offense, or (3)

enhancing the punishment for the offense. If the. two prior convictions that elevate DW] from a misdemeanor to a

felony are elements of a resulting offense of felony DW1. then they are facts required to prove felony DW1 [...1. But if

the two prior convictions merely enhance the offense level or (he punishment for DW 1 from that of a misdemeanor to

Page 10 of 37

that of a felony, then they are not (act? required to prove the offense of DW1. and there really is no offense of "felony

DWJ" hut an offense of DWJ that is enhanced to or punished as a felony." Ex parte Benson. 459 SW3d 67. 74*

75 (Tex Crim App 2015).

"A prior conviction alleged for enhancement is not really a component element of the primary offense.

Instead, it is an historical fact to show the persistence of the accused, and the futility of primary measures of

punishment as related to him. An enhancement increases the punishment range to a certain range above that

ordinarily prescribed for the indicted crime. It does not: change the offense, or the degree of the offense, of conviction

There can be no enhancement until a person is first convicted of an offense of a certain degree." [internal quotes

and citations omitted!. Calton v State. 176 SW3d 231. 233*34 (Tex Crim App 2005).

"But the Legislature's decision to treat the prior iDWll convictions as elements has substantial procedural

consequences. As we have explained above, according the prior convictions the status of elements has the effect of

conferring jurisdiction in district court and requiring that the prior convictions be listed in the indictment, proved at

the guilt stage of trial, and submitted in the guilt stage jury charge. Furl her, the. requirement that the prior

convictions be in the indictment means that a grand jury must, pass on them and 1 hat the defendant will be

guaranteed pretrial notice of them. BY CONTRAST, IF THE PRIOR CONVICTIONS WERE MERE PUNISHMENT

ENHANCERS (emphasis added!, the prosecutor could simply give written notice of them, and such notice would not

necessarily be required prior to trial. (...] The procedural and substantive effects that the prior convictions, have on

how we treat the resulting offense of felony DWJ seriously undermine the notion that we can recharacterize them as

punishment enhancers, I...1."

Ex parte Benson. 459 SW3d 67. 76*77 (Tex Crim App 2015). Felony DWI is one offense.

and two prior DWI convictions are components of that one offense of felony DWI. Felony DWI is

the sum of all its parts. A part; is a completed DWI whose elements have all been proven. Of.

Dickens v Slnte. 980 SW2d 3 86. 188 (Tex Crim App 1998). A conviction or punishment for felony

Page 11 of 37

DW1 cannot occur until these elements are proved at the guilt stage of trial. Barfield v State. 63

SW3d 446. 448 (Tex Grim App 2002).

Penal Code 49.09(b)(2) does not set forth a higher punishment range for the offense when

the prior convictions are proved. Cf. Calfon v State. 176 SW 3d 231. 233-34 (Tex Grim App 2005).

Therefore, when a felony DW1 is punished, because THEY ARE PART OF THE CRIME BEING

PUNISHED, it is impossible to not punish the prior DWI convictions along with all the other

elements of the crime. Crider suggests that the reason the Legislature includes in felony DWI

amendments, savings clauses exclusively ensuring that use of a prior conviction as an element, is

governed only by the law under which the conviction was committed, is because under that

former law notice was provided of a conditional future jeopardy or re-punishment. And by using

the prior conviction only by the terms of the former statute the re-punishment is authorized as

part of the original punishment. And in this manner the Legislature avoids violating either

double jeopardy or ex post facto. This argument is supported by the fact that savings clauses do

not apply to prior conviction punishment enhancers which are not punished again but instead

are precisely crafted to cover ONLY prior conviction elements which are punished again, because

no other "element" of felony DWI has the independent offense date that is requisite for coverage of

the savings clause.

The DC abused its discretion when it applied its misunderstanding of Oliva v State. 548

SW3d 518, 531*532 (Tex Crim App 2018) to Crider for the erroneous proposition that prior

convictions used under Penal Code 49.09(b)(2) are not elements, but merely punishment

enhancers. Crider v Lumpkin. 2023 U. S. Dist. LEXIS 208255. *8 (W.D. Tex. 2023). Properly

read, the TCCA in Oliva distinguished the single prior conviction "punishment enhancer" used to

Page 12 of 37

elevate a misdemeanor DW1 from Class 13 to Class A under Penal Code 49.04. from the two-prior

con viction "dements'' used to charge and convict of a felony DW1 under Penal Code 49.09(b)(2). See

Oliva v State. 548 SW3d 51 8. 533 (Tex Crim App 2018):

"We have rejected the notion that there is a special category of'jurisdictional' elements that are not elements

for all purpose. For the phrase 'are not jurisdictional' to have moaning, then, something that would otherwise be a

punishment issue must become an element because it is jurisdictional. In fact, our prior-conviction jurisprudence in

both DW] and theft cases has emphasized the jurisdictional nature of certain prior-conviction provisions in

concluding that they proscribe elements. Under this view, the jurisdictional nature of the prior-conviction provision

for felony DW1 converts what would otherwise, be a punishment issue into an element of the offense. Because the

single prior conviction provision for misdemeanor DW] is not jurisdictional, that, conversion effect, does not. occur, so

the provision retains its character as prescribing a punishment issue.”

Relying on its erroneous legal conclusions, the DC applied a "recidivism" case. Grvger v

Burke. 334 US 728, 732 [...] (1948). to Crider's elements case and referred to Penal Code

49.09(b)(2) as a "recidivist statute" for the proposition that "because they 'penalize the new criminal offense.

being enhanced rattier than the prior offense used for enhancement!.1‘ recidivist statutes, like the one in question in

this case, do not violate the Ex Post Facto Clause." Crider VLumpkin, 2023 IJ.S. Dist. LEXIS 208255. *9

(W.D. Tex., Nov. 20, 2023). Rut. when a felony DW] is punished, BECAUSE THEY ARE PART

OF THE GUILT AND PUNISHMENT OF THE CRIME BEING TRIED, it is impossible to NOT

punish the prior DW1 convictions along with all the other elements of the crime.

RECIDIVISM CASES INAPPLICABLE

Gibson v State. 995 SW2d 693. 695-696 (Tex Crim App 1999):

{At 695! "We shall first address the validity of appellant's assertion that Ihe use of the prior intoxication related offenses in [Pen. Code) Section 49.09(b) serve t he purpose of an "enhancement scheme of punishment." THIS

WILL DISTINGUISH THE "SCHEME" OF SECTION 49.09(b) FROM THE "ENHANCEMENT SCHEME OF

Page 13 of 37

PUNISHMENT" OF iPen. Code] SECTION 42.12(d) [emphasis added]. I...]. The prior intoxication "related offenses.

whether they are felonies or misdemeanors, serve the purpose of establishing whether the instant offense qualifies

as felony driving while intoxicated. The prior intoxication -related offenses are elements of the offense of [felony]

driving while intoxicated. THEY DEFINE THE OFFENSE AS A FELONY and are admitted into evidence as part, of

the State's proof of its ease-iivchief during the guilt-innocence stage of the trial lemphasis added], 42 GEORGE E.

DIX and ROBERT 0. DAWSON. 'TEXAS PRACTICE: CRIMINAL PRACTICE AND PROCEDURE Sec. 38.73, at

651-652 (1995 and Supp. 1999).

In contrast, the State can use any prior felony conviction under Section 12.42(d) TO INCREASE THE

POTENTIAL RANGE OF PUNISHMENT FOR SOMEONE ALREADY CONVICTED OF A FELONY lemphasis

added]. The prior felony convictions do not determine whether the case will he tried in district court or county court.

As felonies, those cases were already set in the district courts. The prior felony convictions are not admitted into

evidence until the punishment stage of a trial after the defendant has already been convicted of the primary felony

offense. 6 MICHAEL B. CHARLTON, TEXAS PRACTICE: TEXAS CRIMINAL LAW Sec. 29.4. at 388 (1994 and

Supp. 1998). I...]. OUR READING OF THE PLAIN LANGUAGE OF SECTION 49.09(b) ALSO INDICATES IT

SHOULD NOT BE VIEWED AS A PUNISHMENT-ENHANCEMENT STATUTE SIMILAR TO SECTION 12.42(d)

lemphasis added].’'

Because Penal Code 49.09(b) is not a recidivist statute. Crider's 1 990 convictions are not

punishment enhancers, and recidivism caselaw is inapplicable. See Ex parte Benson. 459 SW3d

67, 77, 74"77 (Tex Crilll App 2015) ("The procedural and substantive effects that the prior convictions have on

how wo treat the. resulting offense of felony DW1 seriously undermine the notion that we can recharacterize them as

punishment enhancers I...]."). thus, the DC's reasoning regarding the modification of Penal Code

49.09(h)(2) by Sec. 4 of the 2005 amendment, proper treatment of Crider's 1990 prior conviction

elements, and the DCs own ex post facto analysis, are all based on erroneous legal conclusions

and application of Gryger v Burke. 334 US 728, 732 [...] (1948) to Crider is abuse of discretion.

Konn v United States. 518 US 81. 100 (1996) (overruled on other grounds) ("A district court by

Page 14 of 37

definition abuses its discretion when it makes an error of law. I...] The abuse of discretion standard includes review

to determine that the discretion is not guided by erroneous legal conclusions."). Under the abuse of discretion

standard Crider is entitled to review, and both the DC and Fifth Circuit abused their discretion

in denying him COA.

THE DATE

Relying on State vMason. 980 SW2d 635, 641 (Tex Crim App 1998) for the erroneous

proposition that "the Legislature did not intend for the date of the prior conviction to be considered an element

[of the offense]." Sic. The district COUl*t held: "Because the date of petitioner's prior DW1 convictions were not

an element, of the offense for which he was ultimately convicted, no due process violation occurred. As such.

Petitioner fails to demonstrate' that the state court's rejection of this claim was unreasonable."

Crider v Lumpkin, 2023 U.S. Dist. LEXIS 208255, *8 (W.D. Tex. 2023). By this and

contrary to the 2005 amendment, the district court applied State vMason, 980 SW2d 635 for the

proposition that the "date" does not have to be proved. State vMason, id. is illegally applied to

Crider for several reasons-’ (l) It violates clue process to apply State vMason, id, to Crider

because £Texas Court# of Criminal Appeals, tinder# subterfuge of S^sis^convicted

an

innocent man and violated Bouie v City of Columbia, US 347 (19641 Marks v United States, 430

v es 188 0 97 /)- and the due process / ex post facto clauses in doing so. Therefore. Mason must be

overruled and interpretation of the felony DW1 statue without it. requires proof of an intervening

conviction under Rev. Stat. 6701/However, because Crider has no

to authorize Crider's 1990 convictions for use of elements.

intervening conVUctiona^lsi

1990 convictions are

on

prohibited iasai uses elements, &F Crider was convicted 9]ess than all the elements of felony

Page 15 of 37

DWI, in violation of due process, because neither of two requisite jurisdictional prior conviction

elements were proved.

In Re. "Winship, 397 US 358, 364 (1970) requires4k/0prior convictions committed after

9/1/2005 to be » proved before conviction under 2005 amendment for felony DWI. can be \yi4y®

(2) Mason concerned the savings clause in the "Ad of May 29, 1993. 73rd Log.. R.S.. Oh. 900, Sec.

1.18(a)." and though it is not a DWI case, its application to DWI cases has been .superseded by

felony DWI amendments in Acts 2001, 77th Leg. Ch. 648, Sec. 3, eff. Sept. 1. 2001 and Acts 2005,

79th Leg., Ch. 996, Sec. 4, eff. Sept. 1,2005.

(3) Caselaw before and after Mason, id., clearly demonstrate that there is nothing

unreasonable or absurd about the employment of a savings clause to reverse the common law

presumption of abatement. Dickens v State. 981 SW2d 186. 188 (Tex Crim App 19982

‘‘(This interpretation doesTlead to absurd results because, laws are made for the future and one could

reasonably conclude that the legislature infended U) exclude from application of a new law that increases the

coot/icRtfhS

penalty of prior convictions^ that were final before the law became e

ffective").ngfe^or remedy is dependent on a

■4h<o

statue, unqualified repeal of that statue operates to deprive the party of all such sights that have not become, vested

or reduced to final

City of Austin. 7 S\V3d]09. 128-129) Tex 1999)". United States v Uni

Oil, Inc.. 710 F2d 1078. 1082-1083. n. 3 (5th Cil'. Tex. 1983) ("express savings provision (...] reverses the

common law presumption of abatement.") Quick v City ofAustin. 7 SW3d 109, 128-129 (Tex. 1999) ("This

common law rule of abatement may be modified by a specific savings clause in the repealing legislation or by a

general savings st atute limiting the effect, of repeals.").

(4) Under the guise of absurdity, the TCCA in State vMason. 980 SW2d 635. 639. 640, 641

(Texas Crim App 1998) refused to give effect to the specific savings clause:

Page 16 of 37

@ 639- "This interpretation of [Sec.] 1.18 by the court of appeals, that a felon whose prior conviction

occurred before September 1. 1994 could not. be prosecuted under ISec.l 46.04. leads to an absurd consequence that

could not have been intended by the Legislature. [...] (7 640: Viewing the date of the prior conviction as being an

element of [Sec.] 46.04 would result in the absurd consequence of omitting all felons who commit ted their prior

felonies before September 1, 1994 from the coverage of ISec.l 46.04. The legislative history of [Sec.] 1.18 of Senate

Bill 106/ reveals it was writ ten to make application of the revisions of the Penal Code prospective. SENATE

RESEARCH CENTER. BILL ANALYSIS OF ENROLLED LEGISLATION. S.B. 1067. 73rd Leg., R.S. (17). I...]w'

6414 We conclude the Legislature did not intend for the date of the prior conviction to be considered an element of

[Sec.] 46.04. Instead, we conclude the Legislature intended only a defendant's status as a felon to be an element of

[Sec.] 46.04. Therefore, appellant was subject to prosecution under [Sec.] 46.04."

The Mason Court abused the absurdity doctrine even after finding in opposition of its

desired construction while improperly resorting to legislative history, the following statement:

State vMason., 980 SW2d 635. 640 (Tex Grim App 1998):

"The legislative history of Sec. 1.18 of S.B. 1067 reveals if was written to make application of the revisions of

the Penal Code prospective. SENATE RESEARCH CENTER. BILL ANALYSIS OF ENROLLED LEGISLATION.

S.B. 1067. 73rd Leg.. R.S. (3 7).”

(5) The Mason Court abused the absurdity doctrine according to the valid and invalid

applications of the doctrine explained by Supreme Court Justice Scalia and legal scholar Bryan

A. Garner^in "Reading Law: The Interpretation of Legal Texts." (hereafter "RL"). Section 37. entitled

"ABSURDITY DOCTRINE" provides: "A provision may lie either disregarded or judicially corrected as an error

(when the correction is tcxtually simple) if failing to do so would result in a disposition that no reasonable person

could approve." But then pages 237-238 provides a warning and sets boundaries to prevent, such

judicial error:

Page 17 of 37

"Yet error correction for absurdity can be n slippery slope. It can lead to judicial revision of public and

private texts to make them (in the judge's view) more reasonable. TO AVOID THIS., THE DOCTRINE MUST BE

SUBJECT TO TWO LIMITING CONDITIONS [emphasis added]: (].) The absurdity must consist of a disposition

that no reasonable person could intend. Something that, "may seem odd ... is not absurd." The oddity or

anomaly of certain consequences may be a perfectly valid reason for choosing one textually

permissible interpretation over another, but it is no basis for disregarding or changing the text."

RL p 237. "(2) The absurdity must be reparable by changing or supplying a particular word or

phrase whose inclusion or omission was obviously a technical or ministerial error (e.g.. losing

party instead of winning party). THE DOCTRINE DOES NOT INCLUDE SUBSTANTIVE

ERRORS ARISING FROM A DRAFTER'S FAILURE TO APPRECIATE THE EFFECT OF

CERTAIN PROVISIONS, [emphasis added]." RL P 238.”

Therefore, there was no absurdity in State v Mason and the TCCA was not authorized to

refuse to apply the former law to govern the use of Mason's prior felony as mandated by Sec.

1.18. And the courts in the instant case had no authority to refuse to apply Rev. Stat. 6701/-l(i)

to CONTROL THE USE of Crider's 1990 convictions as required by Sec. 4 of Acts 2005, and thus

violate#Crider's ex post facto/due process rights.

(5) "There is no need for judicial revisions to the statute to avoid absurdity, if the evidence

cannot support the charges [...] the accused should prevail in court." in re T. V. T., 675 SW3d

303, 309. 310 (Tex. 2023) (use of the absurdity doctrine). See also Combs v Health Care Servs.

Corp. 401 SW3d 623. 630. 631 (Tex 2013) (refusing to invoke the absurdity doctrine when

applying an unambiguous statute brings about a peculiar result because "mere oddity does not

e q u a 1 a b s u r d i ty.").

Page 18 of 37

(6) "Thus, what judges believe Congress 'meant' (apart from the text) has a disturbing but

entirely unsurprising tendency to he whatever judges think Congress must have meant, i.e..

SHOULD have meant." Zuni Pub. Sch. Dist. No. 89 v Dept, of Educ.. 550 US 81. 117 (2017).

(7) Alternatively, even if the date is not an element, as with the intervening conviction, it

still has to he proven to the court at some point during the State's case-in-chief. See Weaver v

State. 87 SW3d 557. 561 (Tex Crim App 2002):

"In sum. a prior ini oxical ion -related conviction may not be used as an element of the offense of felony DWI if

that prior offense was committed more than ten years before the instant offense, unless there is an intervening

intoxication-related conviction. (...] WHERE THERE ARE MORE THAN TWO PRIOR CONVICTIONS. THE STATE

SHOULD USUALLY INCLUDE IN THE INDICTMENT THE TWO MOST RECENT CONVICTIONS. HOWEVER,

IF FOR SOME REASON THE STATE CHOOSES NOT TO ALLEGE THE TWO MOST RECENT CONVICTIONS

IN THE INDICTMENT AND THOSE CONVICTIONS ARE MORE THAN TEN YEARS OLDER THAN THE

INSTANT OFFENSE. THE STATE MUST COMPLY WITH 49.09(e) (emphasis added]. Because 49.09(e) is not an

element of the offense, the State need not allege the intervening conviction in the indictment or submit it to the jury.

The State must, however, at some point during its case-in-chief, submit proof of the intervening conviction to the

trial court."

(8) This case is brought under authority of Acts 2005. 79th Leg.. Ch. 996, Secs. 3 and 4. eff.

9-1-2005. and its prosecution is limited to the provisions of that statute. "The powers of government.

are intended to act upon the civil conduct of the citizens, and. wherever their conduct becomes such as to offend

against moral or public decency, it becomes within range of legislative authority. The policy of the law is not a

matter of judicial consideration." Spovtatorium. Jne. v State. 104 SW2d 912, 917 (Tex Civ App 1937)

(against constructive crimes).

(9) "When a case implicates a [...] statute enacted after the events in suit, the court's first task is to

determine whether Gongress has expressly proscribed the statute's proper reach. If ('engross has done so. of course.

Page 19 of 37

there is no need to resort to judicial default rules. When, however, the statute contains no such command, the court

must determine whether the new statute would have retroactive effect, i.e., whether it would impair rights a party

possessed when he acted, increase a party's liability for past conduct, or impose new duties with respect to

transactions already completed. If the statute would operate retroactively our traditional presumption teaches that

it does not. govern absent clear congressional intent favoring such a result." Laildgraf v US1 Film Products,

511 US 244, 280 (1994). "Our first task is to determine whether the legislature has expressly prescribed the

statute's proper reach." Quick v City ofAustin. 7 SW3d 109. 131 (Tex. 1999). The legislature made it

clear that Acts 2005 does NOT OPERATE RETROSPECTIVELY, but contranly. the courts gave

it retroactive effect that increased Crider's liability for the 1990 convictions and eliminated his

right to rely on Acts 2005. Sec. 4.

i

(10) The two provisions of Acts 2005. 79th Leg., R.S., Ch. 996 at issue in this appeal, i.e.

Sections 3 and 4. may be readily classified according to the principles of Landgraf v U.S.l. Film

Prods.. 511 US 244 (1994). The repeal of Penal Code 49.09(e) set out. in Sec. 3 is plainly a change

of the sort that would ordinarily govern offenses committed after its effective date. If Ch. 996 did

no more than repeal Penal Code 49.09(e). Sec. 3 and the 2005 Penal Code 49.09(b)(2) would

presumably apply to all offenses that were committed after its effective date (9-U2005)

regardless of when the prior conviction elements were committed.

However, because Sec. 4 explicitly demands that: (]) Section 3 and the 2005 Penal Code

49.09(b)(2) CONTROLS ONLY THE USE of prior convictions committed on or after 9-] -2005; (2)

the 2001 Penal Code 49.09(e) CONTROLS THE USE of prior convictions committed between 8*

31-2005 and 9*1-20011 (3) the 1993 Penal Code 49.09(e) EXCLUSIVELY CONTROLS THE USE

of prior convictions committed between 8-31-2001 and 9-1.-1994; and (4) Rev. Slat. 6701/-1 (i)

EXCLUSIVELY CONTROLS THE USE of prior convictions committed between 8-31-1994 and ]Page 20 of 37

1-1984^ Sec. 3 must stand or fall with the attached limiting and controlling provisions of Sec. 4.

Thus. Sections 3 and 4 are inseparable,, and because the courts have invalidated Sec 4, Sec. 3

must necessarily be construed to have been invalidated with it. Cf. Landgraf, 511 US 244. 280281 (1994).

This is so because:

"a legislator who supported a prospective statute might reasonably oppose retroactive application of the

same statute. Indeed, there is reason to believe that, the inclusion of [Sec. 4's] express retroactivity provisions was a

factor in t he passage of the [20051 bill. [Sec. 3] is plainly not. the sort of provision that MUST be understood to

operate retroactively because a contrary reading would render it. ineffective." Landgraf. id., at 286 0994).

The retroactive application of Section 3 and the 2005 Penal Code 49.09(b)(2) to CONTROL

THE USE of Crider's 1990 convictions as elements of the instant offense was unauthorized as a

matter of law because it was contrary to the express terms of the 2005 amendment itself', and it

increased Crider's penalty from that of a misdemeanor to seventy years in prison. This ex post

facto application of the law rendered every critical stage of Crider's trial and the jury's verdict

fundamentally unfair because grand jury presentment through conviction and judgment was

presented under an erroneous theory of law.

WESTERN DISTRICT OF TEXAS

The DC could not have understood the law applicable to Crider's case when EVERY

caselaw it. applied to Crider was inapplicable as either error of law or abuse of discretion, and it

violated Crider's ex post facto/due process rights when it erroneously affirmed the State's denial

of his claim.

Page 21 of 37

FIFTH CIRCUIT

After Crider presented proof to the Fifth Circuit that any "reasonable jurist would have

found the district court's assessment of [his] constitutional claims debatable or wrong/' rather

than liberally construing his pleadings as it should have and granting him COA the 5th Circuit

necessarily denied Crider COA based on an erroneous theory of law. because it understood

Crider's claim to be that "application of the amended statute violated the ex post facto clause."

which implies the Legislature enacted an ex post facto law. That is contrary to Crider's claim

which is: "application of the 2005 law instead of Rev. Stat. 6701/-l(i) to CONTROL THE USE of

his 1990 convictions., contrary to the terms of Sec. 4 of the 2005 amended statute, violated his ex

post facto/due process rights." The 5th Circuit thereby committed error of law. abused its

discretion, and violated Crider's constitutional rights anew when it denied his "Application for

Certificate of Appealability for [the] United States District Court for the Western District of

loM tMS<Aep,LEM6

Texas USDC No. 5;22-CV-498" and held in Crider v Lumpkinf No. 23-5091 o] p 1 -2 (5th Cir. Filed

July 24. 2024):

"Robert. Lee Crider. I...I. moves this court for a certificate of appealability (COA) to challenge the denial of

his 28 USC 2254 application. Crider filed the application to challenge his 70-vear enhanced sentence as a habitual

offender for third degree felony driving while intoxicated (DWi). He contends that the use of his 1990 DW1

convictions to enhance his DW1 offense to a third-degree felony, pursuant to Texas Penal Code 49.09(b)(2). violated

his due process lights because application of the amended statute violated the ex post facto clause. 1PAG15 2! To

obtain COA. Crider must make "a substantial showing of the denial of a constitutional right." 28 USC 2253(c)(2)

Shwk v McDaniel. 529 US 473. 484 (2000). Where a district court has rejected a claim on the merits, a movant "must

demonstrate that reasonable jurists would find the district court’s assessment of the const itutional claims debatable

or wrong." Slack. 529 US at 484. Crider has not made the requisite showing. See id. We do not consider Crider’s

Page 22 of 37

ineffective assistance of counsel claims, and he abandons any challenge to the district court's conclusion that a

freestanding claim of actual innocence is not cognizable on federal habeas corpus review. See Black vDavis, 902 F3d

541. 54a (5th Cir 2018) Brinkmann v Dallas Cnty. Deputy Sheriff Abner. 8] 3 F2d 744. 748 (5th Cir. 1987).

Accordingly. Crider's request for COA is DENIED. His motions for the appointment of counsel and to proceed In

Forma Pauperis are likewise DENIED."

SUMMARY

Properly read. not.Jgprior convictionssse authorized for use as an element under Acts

2005, Sec. 4. but. only those that are AUTHORIZED by the law under which they were

committed. Because Crider's 1990 convictions were committed before 90-2005. the 2005

amendment that remains effective today requires Rev. State 6701M(i) to govern the use of

Crider’s 1990 convictions,* because Lite 1990 convictions were committed more than ten years

before the instant offense was committed. Acts 2005 Sec. 4. by continuing Rev. Stat. 6701/-1 (i) in

effect to CONTROL THEIR USE, authorizes them for use as "elements" only upon proof either

beyond a reasonable doubt to the jury or alternately, at some point during the State's case-inchief. of an intervening conviction that was committed within ten years immediately preceding

the date the instant offense was committed. See Weaver v State. 87 SW3d 557. 561 (Tex Crim

App 2002) (explaining intervening conviction). Because Crider has no intervening conviction, the

1990 convictions are not authorized for use as elements of the instant offense. Therefore, the

trial court did not have felony jurisdiction because it did not prove either of the two required

j uri sdietiona 1 elem en ts.

ISSUE #!'• EX POST FACTO/DUE PROCESS VIOLATION

Crider was illegally sentenced to seventy years in prison after being illegally convicted of

felony DWJ and enhanced as a habitual criminal, when under the guise of const ruction Texas

Page 23 of 37

circumvented the State's burden of proving the date the prior convictions were committed, which

statutorily defines the elements of his distinct offense by assigning Rev. Stat. 6701/-1 (i) to

CONTROL THE USE of his 1990 convictions and instead applied the 2005 law retroactively to

CONTROL THE USE of those convictions contrary to the explicit prohibition of the 2005 law

itself,

£i/er\

than the actual use of the remote convictions as elements, it is this retroactive

application of the 2005 law to CONTROL THE USE of the 1990 convictions as elements that

violated the ex post facto/due process clauses, because it did not simply change the elements of

the offense and increase the penalty, but it changed the statutory definition of what an

authorized element is. This retroactive application was done in error, under authority of none

other than: (]) the Mason court's abuse of the absurdity doctrine, and (2) the erroneous

application of recidivism caselaw.

Erroneously overruling the State's burden of proving the date on which the 1990

convictions were committed illegally permitted the ex post facto application of the_2005 law to

CONTROL THE USE of the 1990 convictions and simultaneously bypassed the 2005 legislative

requirement for proof of an intervening conviction to authorize the use of Crider's 1990

convictions as elements -as manifested in the 2005 law continuing in effect Rev. Stat. 6701 /-1 (i)

to CONTROL THE USE of the 1990 convictions as elements- which resulted in Crider's

legislatively prohibited convictions being illegally used as elements by the same law that

continues them under their original prohibition. And what would otherwise have been

misdemeanor punishment because Crider has no intervening conviction available, was illegally

increased to seventy years in prison. This retroactive redefining of "elementy bypassing burdens of

Page 24 of 37

i

proofs changing the quantum of evidence required to convict of a more serious offense, and

increase in penalty violated Crider's ex post facto/due process rights.

If the evidence cannot support the charges [...] the accused should prevail in court. The

court unconstitutionally and illegally convicted, enhanced, and sentenced Crider by retroactively

applying the 2005 statute to CONTROL THE USE of his 1990 convictions. Based on an

erroneous theory of law. every critical stage of Crider's trial was fundamentally unfair. "There is

plainly a fundamental fairness interest , even apart from any claim of reliance or notice, in having the government

abide by the rules of law it establishes to govern the circumstances under which it can deprive a person of his or he)'

liberty or life." Carmel] V Texas. 529 US 513, 533 (2000). "The lex post facto] clause is, of course, also aimed

at other concerns, 'namely, that legislative enactments give fair warning of their effect and permit individuals to

rely on their meaning until explicitly changed' " [by the Legislature], Miller v Florida. 482 US 423, 430

(1987) (quoting Weaver v Graham. 450 US 24, 29 (l981) (other citations omitted); and at

reinforcing separation of powers. Weaver v Graham, 420 US 24, 29 n. 10 (1981).

"For an ex post facto violation to occur, two elements must he present: (1) a law must he retrospective, that

is. it must apply to events occurring before its enactment, and (2) the new law must create a sufficient risk of

increasing the punishment attached to the defendant's crimes." Crider V Lumpkin, 2023 U.S. Dist. LEXIS

208255. *8-9 (W.D. Tex. 2023) (quoting Warren vMiles. 230 F3d 688. 692 (5th Cir. 2000) (citing

Cal. Dept, of Coir, v Morales, 514 US 499, 509 (1995)).

ISSUE # 2: ACTUAL INNOCENCE UNDER HALEY

A legislative amendatory act such as Acts 2005. 79th Leg., Ch. 996. Secs. 3 and 4. "confers

authority on the trial court to act in some situations hut does not confer authority to act when the statute's

requirements are not satisfied, and a trial court that purports to act under such a statute when its requirements are

not satisfied acts without jurisdiction." Ex parte White. 506 SW3d 39, 51 (Tex Crim App 2016).

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Although White, id., is specifically referring to a remedial statute, the same principle of law

applies to Crider's penal statute, because "jurisdiction of the subject matter cannot: lie conferred by

agreement: this type of jurisdiction exists by reason of the authority vested in the court by the constitution and

statutes." Garcia v Dial. 596 SW2d 524. 527 (Tex Crim App 1980) (citations omitted). Thus.

because the court was not authorized to issue a sentence and judgment of conviction for a felony

DWI. Crider's sentence and judgment exist only by ex post facto application of the 2005 law and

he is actually innocent of the habitual criminal enhancement under Dretke v. Haley. 541 U.S.

386, 388-389 (2004).

HARM

Tex. Code Crim. Proc. art. 28.10 provides:

"(a) After notice to the defendant, a matter of form or substance in an indictment or information may be

amended at any time before the trial on the merits commences. On the request of the defendant, the court shall

allow the defendant not less than 10 days, or a shorter period if requested by defendant, to respond to the amended

indictment or information, (b) A matter of form or substance in an indictment or information may also be amended

after the trial on the merits commences if the defendant: does not object., (c) An indictment or information may not he

amended over the defendant's objection as to form or substance if the amended indictment, or information charges

the defendant with an additional or different offense or if the substantial rights of the defendant are prejudiced."

Flowers v State. 815 SW2d 724, 729 (Tex Crim App 1991) explains:

“Even though the amendments are not objectionable as charging an additional or different offense they may

be improper if they prejudice the "substantial rights" of t he defendant. In Jta1. 707 SW2d 900 (Tex Or App 1986), we

discussed the analysis of prejudice to the "substantial rights" of a defendant in the context of notice defects in a

charging instrument under Article 21.19, V.A.C.C.P. We held that a review of the record of the case was appropriate.

Such review is likewise proper under the "substantial rights" provision of Article 28.10(c) to determine and evaluate

prejudice. The "substantial right" affected may he similar to a right to notice as in Adams so that the inquiry will lie

whether the amendment had an impact on the defendant's ability to prepare a defense, or it may concern some other

Page 26 of 37

"substantial right" claimed by a defendant so that the inquiry or focus of prejudice is different depending on the

"substantial right" violated."

Flowers v State, 815 SW2d 724. 729 (Tex Crim App 1991) went on to say:

“Changing an element, such as the name of the owner, changes the evidence needed to prove the offense. If

such amendment is made on the basis of the same incident upon which the original indictment is based, it will, in

most cases, be permissible under the substantial rights provision alter a review of the record for prejudice. See

Adams, supra. Exactly what rights may be "substantial" in a given case will depend on the circumstances of the

case. Of course, it is possible that, an amendment such as changing the owner might reflect an entirely different.

incident as the basis for the allegation. If this were so. the "substantial rights" provision of Art. 28.10(c) would be

implicated to protect the defendant, and the right to indictment by a grand jury under Art. o. Sec. 10 might be

implicated. For example, if the record shows that the amendment is made so as to charge a different occurrence or

incident than that originally alleged in the indictment, the substantial rights of a defendant would be prejudiced in

part because he has been denied any grand jury review of the offense as required by Art. 1, Sec. 10.

Crider shows not only that he was harmed when he was ILLEGALLY SENTENCED AS A

FELON AND HABITUAL CRIMINAL due to the ILLEGAL USE OF HIS PROHIBITED PRIOR

CONVICTIONS AS ELEMENTS, but also that replacing his 1990 convictions with his other

convictions would severely prejudice his substantial rights under Flowers v State, 815 SW2d 724

(Tex Crim App 1991).

Crider has other prior convictions: CR04*0665 and CR04-] 425 both charged in Kerr

County, TX in 2004 under the 2001 Penal Code 49.09. and cause no. 4871 charged in May 2007

in Winkler County, TX. However, because the date the prior conviction element was committed

determines which law defines what an "authorized element" is. if the court were to replace Crider's

illegally used 1990 convictions with his other prior convictions, the court would not simply be

changing the elements but would be changing the statutory definition of what is and is not an

Page 27 of 37

authorized element, exactly as Texas changed the definition by illegally applying the 2005 law to

CONTROL THE USE of Crider's 1990 convictions.

Furthermore. Crider chose to go to jury trial because he was charged with a felony DWJ

which, under proper construction of the DWI law. he absolutely could not be convicted of. But if

the court traded out the illegal convictions with his other prior convictions, without presenting

them to the grand jury and providing Crider a choice of plea bargain or trial on the indictment

with the new elements, he would have been tricked and deceived into going to trial for a felony

DWI which he absolutely could not be found NOT GUILTY of. which would equate to him

refusing the plea bargain offered him in the instant case only BECAUSE HE WANTED A

MUCH LARGER PRISON SENTENCE THAN THE STATE WAS OFFERING HIM. That is the

epitome of prejudice.

Because Crider's "substantial rights” would definitely be prejudiced by changing the

elements, because changing the elements would necessarily change the definition of the element

to something other than what it was at the time Crider invoked his right to trial by jury, that

change cannot be allowed and the State must shoulder the burden for its lack of due diligence in

the preparation of the original indictment, which cannot sustain a felony.

Weaver v State. 87 SW3d 557. 561 (Tex Crim App 2002) "WHERE THERE ARE MORE THAN

TWO PRIOR CONVICTIONS. THE STATE SHOULD USUALLY INCLUDE IN THE INDICTMENT THE TWO

MOST RECENT CONVICTIONS. HOWEVER. IF FOR SOME REASON THE STATE CHOOSES NOT TO ALLEGE

THE TWO MOST RECENT CONVICTIONS IN THE INDICTMENT AND THOSE CONVICTIONS ARE MORE

THAN TEN YEARS OLDER THAN THE INSTANT OFFENSE. THE STATE MUST COMPLY WITH 49.09(e)

[emphasis added]." Note that Rev. Stat. 6701/-1 (i) is the predecessor of 49.09(e).

CONCLUSION

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(l) The court's refusal to give effect to the Acts 2005. Sec. 4 requirement of proving the

"date." either as an element or to the court during the State's case in chief, rested on the authority

of State vMason, 980 SW3d 635 (Tex Crim App 1998). But Mason claimed no authority other

than that of the absurdity doctrine. And Mason's reliance on the authority of the absurdity

doctrine is misplaced because "THE DOCTRINE DOES NOT INCLUDE SUBSTANTIVE ERRORS ARISING

FROM A DRAFTER'S FAILURE TO APPRECIATE THE EFFECT OF CERTAIN PROVISIONS." [emphasis

added]. Thus, because the Mason holding is unauthorized as a matter of law. Mason is

inapplicable to Crider and therefore proof of the date on which Crider's 1990 convictions were

committed as required by the terms of Acts 200o, Sec. 4. must be adhered to.

(2) It was not unintentional or unreasonable for the Legislature to make an element the

dale on which prior DWI convictions were committed. See 1983. 1993. 2001. and 2005 Savings

Clauses in this brief; Quick v City ofAustin. 7 SW3d 109, 128-129 (Tex 1999). And it was not

absurd, see Dickens v State, 981 SW2d 186. 188 (Tex Crim App 1998); see also Antonin Scalia

and Bryan A. Garner. Reading Law: The Interpretation of Legal Texts, Section 37. "ABSURDITY

DOCTRINE.” 237. Therefore, proof of the dates are required to determine which law CONTROLS

THE USE as elements of the 1990 prior convictions, and Rev. Stat. 6701/-l(i) thereby has

exclusive authority to control the 1990 convictions.

(3) Recidivism cases do not apply to Penal Code 49.09(b) cases because prior conviction

elements go DIRECTLY TO GUILT OR INNOCENCE and recidivism goes only

COLLATERALLY TO PUNISHMENT, therefore retrospective application of the 2005 law.

contrary to the 2005 law. to CONTROL THE USE of Crider's 1990 convictions does violate ex

post facto/due process.

Page 29 of 37

(4) There is no intervening conviction available to authorize the use as elements of

Crider's 1990 convictions, as required by the only authorized controlling law -Rev. Stat. 6701/l(i), which means that the 1990 convictions proved at Crider's trial are prohibited from use as

elements of a felony DWI by the 2005 and 1983 felony DWI amendments. Thus. Crider's felony

DWI conviction and sentence are both illegal and unconstitutional.

(5) Because the court cannot change the prior conviction elements without changing the

statutory definition of the elements and prejudicing Crider's substantial rights, he is innocent of

a felony. Because Crider is innocent of a felony. he was illegally convicted and sentenced by a

court which did not have felony jurisdiction. Crider is ACTUALLY INNOCENT OF BOTH

FELONY DWI AND THE HABITUAL CRIMINAL ENHANCEMENT under Dretke v Haley, 541

US 386. 388-389 (2004).

(6) Because the district court misunderstood the law and the Fifth Circuit misunderstood

Crider's complaint, both prevented consideration of Crider's petition under a valid theory of law.

Therefore, both courts having committed error of law and abuse of discretion, Crider is entitled

to Certiorari review of this complicated case, first on the merits, and again on the abuse of

discretion standard. Alternatively, the Court has authority to remand to the Fifth Circuit with

an Order to grant COA.

PRAYER

Crider prays the Honorable Supreme Court of the United States will grant him relief in

one of three forms; 0) remand him back to the trial court to be resentenced for misdemeanor

Page 30 of 37

DWI; (2) grant him Certiorari; or (3) remand him to the United States Court of Appeals for the

Fifth Circuit, ordering that court to grant him COA, appoint him an attorney, and to consider his

actual innocence claim under Dretke vHaley, 541 US 386, 388*389 (2004). Respectfully

'December

Submitted, /s/ Robert Crider.

, 2024~Signature

Robert Crider, Pro Se TDCJ ID 2230764 McConnell Unit 3001 S. Emily Dr. Beeville, TX 78102.

County

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