Opposition Brief — Coaker v. Texas

DEC 16 195

HAROLD B. WILLEY,

IN THE

Supreme Court of the Rnited States

OCTOBER TERM, 1953

No. 461

WILLIAM STEVENS COAKER,

Petitioner,

V.

THE STATE OF TEXAS,

Respondent.

BRIEF OF RESPONDENT IN OPPOSITION TO

PETITION FOR WRIT OF CERTIORARI

JOHN BEN SHEPPERD

Attorney General of Texas

HORACE WIMBERLY

Assistant

RUDY G. RICE

Assistant

Capitol Station

Austin, Texas

Attorneys for Respondent

SUBJECT INDEX

Page

Opinion Below 1

Statement of the Case 1

Jurisdiction 3

Argument and Authorities on Jurisdiction __.___ 3

The Question Presented 10

Argument and Authorities on Question Presented_ 10

Conclusion

INDEX OF AUTHORITIES ii

Table of Cases: Page

American Surety Co. v. Baldwin, 287 U.S. 156, 53

S. Ct. 98, 77 L. Ed. 231 6

Bowe v. Scott, 234 U.S. 658, 34 S. Ct. 769, 58 L. Ed.

1141 9

Brown v. Massachusetts, 144 U.S. 578, 12S. Ct. 757,

86 L. Ed. 546 5

Broughton v. State, 148 Tex. Crim. Rep. 445, 188

S. W. 2d 393 11, 12, 16, 17

Burton v. State, 194 S.W. 2d 398 11, 17, 20

Capital City Dairy Co. v. Ohio, 183 U.S. 238, 22 S. Ct.

120, 46 L. Ed. 171

Clifton v. State, 246 S.W. 2d 201 11, 12, 16, 21

Consolidated Turnpike Co. v. Norfolk and O.V.R. Co.

228 U.S. 326, 33 S. Ct. 510, 57 L. Ed. 857_______-

DeLeon v. State, 55 Tex. Crim. Rep. 39, 114 S.W. 828 20

Edelman v. California, 97 L. Ed. 227 5

Fisher v. State, 107 Tex. Crim. Rep.383, 2 S.W. 2d 249 5

Forbes v. State Council, 216 U.S. 396, 30 S.Ct. 295,

54 L. Ed. 534 6

— v. Illinois, 196 U.S. 78, 25 S.Ct. 176, 49 L. Ed.

9

— vy. State, 126 Tex. Crim. Rep. 581, 72 S.W. 2d .

Herndon v. Georgia, 295 U.S. 441, 55 S.Ct. 794, 79

L. Ed. 471 6, 9, 16

Hill v. State, 256 S.W. 2d 93. 18, 20, 21

Hulbert v. Chicago, 202 U.S. 275, 50 L. Ed. 1026, 26

S. Ct. 617

McCorquodale v. Texas, 211 U.S. 432, 29 S. Ct. 146,

53 L. Ed. 269 6

Munoz v. State, 81 Tex. Crim. Rep. 629, 197 S.W. 871_ 20

Mutual Life Ins. Co. v. McGrew, 188 U.S. 291, 47

L. Ed. 480, 23 S. Ct. 375. 5

INDEX OF AUTHORITIES iii

Page

Oxley Stove Co. v. Butler County, 166 US. 648, 17

S. Ct. 709, 41 L. Ed. 1149 9

Radio Station W.0O.W. v. Johnson, 326 U.S. 120, 65

S. Ct. 1475, 89 L. Ed. 2092 6

Simmerman v. Nebraska, 116 U.S. 54, 6 S. Ct. 333,

EE ERS G RNS OE SENS re OC EP 6

Thomas v. State, 40 Tex. 36 20

Webb v. State, 110 Tex. Crim. Rep. 503, 7 S.W. 2d

562, 9 S.W. 2d 335 8

Zweig v. State, 74 Tex. Crim. Rep. 306, 171 S.W. 747 5

INDEX OF STATUTES

Vernon’s Texas Penal Code:

MI iia a 11

Article 802b.. 11, 12, 20, 21

Article 802 10, 17

United States Statutes:

28 U.S. 1257(3) 3

United States Constitution:

Article 1, Section 9, Clause 3 8

Article 1, Section 1, Clause 3...» 9

Article 1, Section 10

9, 10

IN THE

Supreme Court of the United States

OCTOBER TERM, 1953

No. 461

WILLIAM STEVENS COAKER,

Petitioner,

V.

THE STATE OF TEXAS,

Respondent.

BRIEF OF RESPONDENT IN OPPOSITION TO

PETITION FOR WRIT OF CERTIORARI

OPINION BELOW

Opinion of Texas Court of Criminal Appeals, April

29, 1953. (R. 5, 6.) Coaker v. State, __. Tex. Crim.

Rep. _..., 259 S. W. 2d 220.

Opinion first motion for rehearing, April 10, 1953

(R. 10) Coaker v. State, _.. Tex. Crim. Rep. __.. .

259 S. W. 2d 221.

STATEMENT OF THE CASE

Petitioner was duly and legally indicted for the

felony offense of driving while intoxicated, second

offense, on November 7, 1952, and on November 17,

1952, Petitioner was tried before a jury in the Dis-

trict Court of Karnes County, Texas and convicted

for the felony offense of driving while intoxicated,

second offense, and his punishment, was assessed at a

fine of $2,000.00 and confinement in the County

Jail for 90 days (R. 2).

—2—

An appeal was taken by Petitioner to the Court

of Criminal Appeals of Texas, the Court of last re-

sort in criminal cases in the State of Texas. On April

29, 1953, judgment of the trial court was affirmed,

Coaker v. State, __- Tex. Crim. Rep. __., 259 8.

W. 2d 220 (R. 5). Petitioner filed a motion for re-

hearing which was overrled June 10, 1953, Coaker v.

State, —— Tex. Crim. Rep. ..., 259 S. W. 2d 221.

(R. 10). Petitioner then filed a second motion for

rehearing and for the first time attempted to raise

a federal question but failed to do so. (R. 11-12).

Said second motion for rehearing was overruled by

the Court of Criminal Appeals without written opin-

ion on June 27, 1953 (R. 13, 21). Petitioner then

filed a motion for leave to file a third motion for re-

hearing and to recall mandate on July 13, 1953 (R.

18-14), and tendered therewith for filing his third

motion for rehearing (R. 15-19). On July 13, 1953,

the Court of Criminal Appeals of Texas denied leave

to Petitioner to file his third motion for rehearing

(R. 20) and by separate order granted Petitioner’s

motion to recall mandate and granted a stay pend-

ing application for writ of certiorari to the U. S.

Supreme Court (R. 20-22).

It is pointed out to this Honorable Court that no-

where in the record, and particularly in Petitioner’s

Bill of Exceptions and Motion for New Trial, did

Petitioner attempt to specifically set up or claim any

title, right, privilege or immunity under the Consti-

tution of the United States until his third motion

for rehearing and a motion for leave to file said

third motion was overruled by the Court of Criminal

Appeals of Texas.

poe

JURISDICTION

1. Nowhere in the trial record, and particularly

in Petitioner’s Bill of Exceptions and Motion for

New Trial, did Petitioner specially set up or claim

any title, right, privilege, or immunity under the

Constitution of the United States.

2. The grounds of error here presented were

never urged in any manner before the trial court and

under the rules of practice in the Court of Criminal

Appeals in Texas, the Court could not consider such

alleged errors.

3. A substantial Federal question never having

been properly raised in the State Court Proceedings,

the State Court could not and did not pass on any

such question and therefore this Court is without

jurisdiction to consider Petitioner’s Petition for Writ

of Certiorari and the same should be denied.

ARGUMENT AND AUTHORITIES ON JURISDICTION

OF THE SUPREME COURT

As its first proposition in opposition to the peti-

tion of William Stevens Coaker, the Respondent calls

the attention of this Honorable Court to the fact that

at no time has Petitioner complied with the juris-

dictional requirements of this Court concerning its

review of State decisions by Writ of Certiorari.

Petitioner seeks to invoke the jurisdiction of the

Court under 28 U.S.C. 1257(3) without complying

with the requirements of such statute in setting up

or claiming any right, title, privilege or immunity

under the Constitution of the United States at the

appropriate time in the State proceedings.

idles

A review of the record discloses that the question

here presented was never raised in the Petitioner’s

Motion for a New Trial (R. 3, 4), in any Bills of

Exceptions presented to the Court of Criminal Ap-

peals, or in Petitioner’s First Motion for Rehearing

(R. 7-10). Petitioner admits in his brief (Petition,

p. 5) that the question presented was not raised in

the trial court. That the first time the question here

presented was even attempted to be raised was in

Petitioner’s Second Motion for Rehearing, (R. 11-

12), in which Petitioner admits in his Petition for

Writ of Certiorari and Brief (Petition, p. 7) such

Second Motion failed to fully point out wherein the

conviction contravened the Federal constitution.

Realizing that even at this late point of the proceed-

ings he had still not properly raised a Federal ques-

tion, Petitioner then sought to file a Third Motion for

Rehearing and raise such a question for the sole pur-

pose of obtaining review before this Honorable

Court. (R. 13-19). The Motion for Leave to file said

Third Motion for Rehearing was overruled by the

Court of Criminal Appeals as being without merit

for the obvious reason that the question presented

had not been properly raised in the Petitioner’s Bills

of Exceptions or Motion for a New Trial so as to give

the Court of Criminal Appeals jurisdiction to pass

upon same,

The scope of review by the Court of Criminal Ap-

peals of Texas is limited to the grounds or assign-

ments of error which a defendant has preserved by

an adequate Bill of Exception, and Motion For a

New Trial in the trial court. The Texas Court has

expressly held that such motions as are not thus set

eas

up or assigned cannot be considered by it on appeal.

Zweig v. State, 74 Tex. Crim. Rep. 306, 171 S. W.

747; Harvel v. State, 126 Tex. Crim. Rep. 581, 72

S.W. 2d 604; and this course has been followed even

in a death penalty case where on appeal complaint

was first made of matters not objected to or excepted

to during the trial. Fisher v. State, 107 Tex. Crim.

Rep. 383, 2 S.W. 2d 249.

This Honorable Court has repeatedly stated that

the litigant must follow State procedures in raising

the Federal question. That any failure to do so is

fatal to his chances for Supreme Court Review. That

when required by State practice, the Federal ques-

tion must be raised before the trial court, and must

be presented to the trial court at the point considered

appropriate under State procedure. As early as 1877,

this Honorable Court advanced and adhered to the

policy that it did not have jurisdiction of an alleged

violated right that was not pointed out in the trial

court, when required to be raised in the trial court

for State Court appellate review. Spies, 31 Lawyer’s

Edition 80. Subsequent to that time the Court’s

policy has remained the same and can be seen in

Hulbert v. Chicago, 202 U.S. 275, 50 L. Ed. 1026,

26 S.Ct. 617. (Complete failure to raise question at

trial court level) ; Brown v. Massachusetts, 144 U.S.

578, 12 S.Ct. 757, 36 L. Ed. 546 (failure to raise

question before verdict held to be fatal) ; Edelman

v. California, 97 Lawyer’s Edition 227 (question

raised for first time as one of grounds of appeal) ;

Mutual Life Ins. Co. v. McGrew, 188 U.S. 291, 47

L. Ed. 480; 23 S.Ct. 375, 63 L.R.A. 33 (failure to

raise the question both in trial court and on appeal).

sasiliiais

As shown by a review of the record in this case

and by Petitioner’s own admission, a Federal ques-

tion was not raised in the trial court either by Bills

of Exceptions or in his Motion for a New Trial as

required under Texas procedure, and was only raised

for the first time in Petitioner’s Third Motion for

Rehearing.

This Honorable Court has further adhered to the

principle that raising the Federal question for the

first time in a petition for rehearing addressed to the

highest court is insufficient unless the court actually

entertains the petition and expressly decides the

question. Radio Station W.0.W. v. Johnson, 326 U.S.

120, 65 S.Ct. 1475, 89 L. Ed. 2092; Herndon v.

Georgia, 295 U.S. 441, 55 S.Ct. 794, 79 L. Ed. 1930;

American Surety Co. v. Baldwin, 287 U.S. 156, 53

S.Ct. 98, 77 L. Ed. 231; Forbes v. State Council, 216

U.S. 396, 30 S.Ct. 295, 54 L. Ed. 534; Simmerman v.

Nebraska, 116 U.S. 54, 6 S.Ct. 333, 29 L. Ed. 535.

To constitute a reviewable judgment under such cir-

cumstances, the order denying the petition for re-

hearing must be more than a cursory recitation that

the petition has been fully or maturely considered

and accordingly denied. Consolidated Turnpike Co.

v. Norfolk and O.V.R. Co., 228 U.S. 326, 33 S.Ct.

510, 57 L. Ed. 857. See also McCorquodale v. Texas,

211 U.S. 482, 29 S.Ct. 146, 53 L. Ed. 269, wherein

this Honorable Court said:

This court has decided many times that it is

too late to raise a Federal question for the first

time in a petition for rehearing in the Court of

last resort of a State after that Court has pro-

nounced its final decision. Loeber v. Schroeder,

a, an

149 U.S. 580, 585; Pim v. St. Louis, 165 U.S.

273. It is true that we have also decided that if

the Court entertains the motion and passes on

the Federal question, we will review its decision.

But it must appear that the Court has done so.

Mallett v. North Carolina, 181 U.S. 589; Leigh

v. Green, 193 U.S. 79; Cokran Oil Co. v. Arnau-

det, 199 U.S. 182, 193; Fullerton v. Texas, 196

U.S. 192; McMillen v. Ferrum, 197 U.S. 348.

It can hardly be said to so appear in the case at

bar. The order of the Court is nothing more than

a denial of the motion. In other words it ex-

presses no more than would lie implied from a

simple denial of the motion.” (Emphasis added. )

As before pointed out the Court of Criminal Ap-

peals overruled Petitioner’s motion for leave to file

his tendered Third Motion for Rehearing on the

grounds that said Third Motion for Rehearing was

without merit. That under the Texas decisions cited,

supra, the only reasonable interpretation to the

Court’s ruling on said motion could be that Peti-

tioner had not properly raised the question pre-

sented in the trial court under Texas procedure and

therefore had waived same.

In view of the above decisions and the adherence of

this Honorable Court to a well defined policy requir-

ing any Federal question to be properly raised under

state procedure, Petitioner has failed to invoke the

jurisdiction of this Supreme Court. Petitioner ad-

mits that he never raised a Federal question in the

trial court and it was only after the decision of the

Court of Criminal Appeals was rendered and his first

motion for a new trial was overruled did he even at-

tempt to raise the question here presented in his Sec-

widens

ond Motion for a New Trial, which Petitioner admits

failed to fully set out the question presented. As a

last desperate attempt to raise a Federal question,

Petitioner attempted to file his Third Motion for Re-

hearing in order to obtain review before this Hon-

orable Court. The Texas Court of Criminal Appeals

has, on rare occasions, granted leave for filing a

second motion for rehearing, but it has announced

in Webb v. State, 110 Tex. Crim. Rep. 503, 7 S.W. 2d

562, 9 S.W. 2d 335, that the filing of second motions

for rehearing “places an undue, unnecessary, and un-

profitable burden upon the Court, and it is hoped that

the members of the bar will refrain from attempting

second motions for rehearing except it be on rare

and extraordinary occasions.

With this view of the Court on filing of second mo-

tions for rehearing can it be left to doubt that the

Texas court intends that its rule of procedure is to

be strictly followed in properly raising the questions

to be reviewed in the trial court?

Not only did Petitioner fail to raise a Federal

question at the proper time, but when he did attempt

to raise same he failed to properly point out with

sufficient reference the particular clause of the Fed-

eral Constitution relied upon. In Petitioner’s Third

Motion for Rehearing (R. 15), he alleges that Arti-

cle 802b, V.P.C., as amended by the 52nd Legisla-

ture of Texas on June 8, 1951, effective September

7, 1951, under which he stood convicted, violated Ar-

ticle I, Section 9, Clause 3, of the Constitution of the

United States and in Petitioner’s Brief (Petition, p.

4) in presenting his question to this Honorable

Court, alleges that Article 802b of the Texas Penal

ailiien

Code, as amended in 1951, is an Ex Post Facto Law,

as applied to Petitioner, and has been given retro-

active application to Petitioner in violation of Arti-

cle I, Section 1, Clause 3, of the Constitution of the

United States. Article 802b, V.P.C., as amended in

1951 by the 53rd Legislature of the State of Texas,

being a State statute Respondent cannot see how, nor

does Petitioner point out how Article 802b, V.P.C.,

can violate Article 1, Section 1, Clause 3 or Article 1,

Section 9, Clause 3 of the Constitution of the United

States. This Honorable Court has held that it will

not take cognizance of a claim grounded upon a

mere reference to the “Constitution of the United

States,” Herndon v. Georgia, 295 U.S. 441, 55 S. Ct.

794, 79 L. Ed. 471; Harding v. Illinois, 196 U.S. 78, ©

25 S. Ct. 176, 49 L. Ed. 344; Capital City Dairy Co. v.

Ohio, 183 U.S. 238, 22 S. Ct. 120, 46 L. Ed. 171; or

the “Constitution and Laws of the United States,”

Oxley Stove Co. v. Butler County, 166 U.S. 648, 17

S. Ct. 709, 41 L. Ed. 1149; or “due process of law,”

Bowe v. Scott, 234 U.S. 658, 34 S. Ct. 769, 58 L. Ed.

1141.

Since Petitioner makes a contention that Article

802b, V.P.C., as amended in 1951, is ex post facto as

applied to Petitioner, Respondent can only assume

that Petitioner is trying now to claim his rights have

been violated under Article I, Section 10 of the Con-

stitution of the United States, and in order to reply

herein will proceed under that assumption.

Therefore, there being no Federal question prop-

erly presented and pursued in this case, this Honor-

able Court is without jurisdiction and Petitioner is

without right to a Writ of Certiorari herein.

eRe em

THE QUESTION PRESENTED

Whether Article 802b of The Texas Penal Code,

as amended in 1951, is an Ex Post Facto Law, as ap-

plied to Petitioner, in violation of Article 1, Section

10 of the Constitution of the United States.

ARGUMENT AND AUTHORITIES ON THE

QUESTION PRESENTED

It is necessary, to a limited extent, to discuss the

history of the drunk driving statutes here involved

and to quote them to some extent, and to see what in-

terpretations have been placed on them by the Texas

Court of Criminal Appeals. In 1941 the 47th Legis-

lature of the State of Texas amended Article 802,

Vernon’s Penal Code, making the first offense of

drunk driving a misdemeanor and at the same time

enacted Article 802b, Vernon’s Penal Code. Acts

1941, 47th Legislature, Page 819, Chapter 507, Sec.

1, Article 802b, V.P.C., which said Act provides as

follows:

“Art. 802b. Subsequent offense of driving

while intoxicated ; felony

“Any person who has been convicted of the

misdemeanor offense of driving or operating an

automobile or other motor vehicle upon any pub-

lic road or highway in this State or upon any

street or alley within an incorporated city, town

or village, while intoxicated or under the influ-

ence of intoxicating liquor, and who shall there-

after drive or operate an automobile, or other

motor vehicle upon any public road or highway

in this State or upon any street or alley within

the limits of an incorporated city, town or vil-

lage, while such person is intoxicated or under

me eee

the influence of intoxicating liquor, shall be

guilty of a felony and upon conviction be pun-

ished by confinement in the penitentiary for any

term, of years not less than one (1) nor more

than five (5).” (Emphasis added).

Under Article 802b, V.P.C., the question arose

as to whether said Article was an enhancement of

the punishment statute. In two cases, Broughton v.

State (1945), 148 Tex. Cr. Rep. 445, 188 S. W. 2d

393, and Clifton v. State (1951), ___. Tex. Cr. Rep.

_.._., 246 S. W. 2d 201, the Court of Criminal Ap-

peals held that said Article was not an enhancement

of punishment statute but created a new and inde-

pendent crime of the grade of felony, an essential

element of which was that the person charged had

previously been convicted of a misdemeanor offense

of driving while intoxicated. In the Broughton case

the Court pointed out the distinction between en-

hancement statutes, Articles 61-64, Vernon’s Penal

Code, and Article 802b, Vernon’s Penal Code, in the

following language:

“The object and purpose of the two statutes

are different: one is to enhance the punishment

while the other is to charge a felony and is juris-

dictional.”

In 1946, the case of Burton v. State, Tex. Crim.

R. _.., 194 S.W. 2d 398, was decided by the Texas

Court of Criminal Appeals. In that case Appellant

was convicted in the County Court of Wise County

of the misdemeanor offense of driving a car while in-

toxicated. The Appellant had previously been con-

victed of driving a car while intoxicated in January,

oi | tm

1945, but the State’s Attorney had failed to properly

plead the previous conviction to bring the subsequent

offense within Article 802b, V.P.C., and sought to

use the previous conviction to challenge appellant’s

credibility as a witness and to show system. The

Court of Criminal Appeals held that the prior con-

viction was not admissible for either of the above

purposes and indicated that had the previous convic-

tion been properly pleaded the subsequent offense

could have been prosecuted as a felony.

Article 802b, Vernon’s Penal Code, was amended

on June 8, 1951, effective September 7, 1951, by the

52nd Legislature of the State of Texas, Acts 1951,

52nd Leg., p. 813, ch. 457, Sec. 1. Said Article 802b,

as amended, provides as follows:

“Art. 802b. Subsequent offense of driving

while intoxicated; felony.

“Any person who has been convicted of the

misdemeanor offense of driving or operating an

automobile or other motor vehicle upon any

public road or highway in this state, or upon

any street or alley within an incorporated city,

town or village, while intoxicated or under the

influence of intoxicating liquor, and who shall

thereafter drive or operate an automobile or

other motor vehicle upon any public road or

highway in this state, or upon any street or

alley within the limits of an incorporated city,

town or village, while such person is intoxicated

or under the influence of intoxicating liquor,

shall for each and every subsequent such viola-

tion be guilty of a felony; and upon conviction

shall iad prvi by a fine of not less than One

Hundred ($100.00) Dollars nor more than Five

Thousand ($5,000.00) Dollars or confinement

Ric:

in the county jail not less than ten (10) days

nor more than two (2) years, or by both such

fine and imprisonment, or by confinement in the

state penitentiary not to exceed five (5) years.

As amended Acts 1951, 52nd Leg., p. 813, ch.

457, § 1.” (Emphasis added.)

In 1953, the case of Hill v. State, ... Tex. Crim.

R. __., 256 S.W. 2d 93, was decided by the Texas

Court of Criminal Appeals involving Article 802b,

V.P.C. as above amended in 1951. The Appellant

had been previously convicted of the misdemeanor

offense of driving while intoxicated in 1947 and in

1952 the misdemeanor conviction of 1947 was used

under the 1951 amendment to convict Appellant of a

felony. The Appellant made two main contentions

that concerns our case: (1) that since the 1947 con-

viction had been used in 1949 to convict Appellant of

a felony under Article 802b, V.P.C. as passed in

1941, the 1947 conviction could not again be used in

1952, under Article 802b, V.P.C., as amended in

1951; and (2) that Article 802b, V.P.C., as amended

in 1951, changes the punishment prescribed by Ar-

ticle 802b, as passed in 1941, and that since the pun-

ishment was different when Appellant committed the

1947 offense, a conviction under the 1951 amend-

ment, in which a 1947 offense was alleged in order to

give the Court jurisdiction, would be giving ex post

facto effect to the 1951 amendment.

In answer to the Appellant’s first contention the

Court of Criminal Appeals reaffirmed the Braughton

and Clifton cases, supra, in holding:

“Appellant’s contention is that the rule in

Kinney v. State, Tex. Crim. App., 79 S.W. 570,

ere ee

would prevent the re-use of the 1947 misde-

meanor, since it had successfully been used in

the 1949 felony conviction.

“This Court has not held the rule in the Kin-

ney case applies to Article 802b, Vernon’s Ann.

P.C., and we do not now feel inclined to so hold.

To the contrary, we have held in Broughton v.

State, 148 Tex. Cr. R. 445, 188 S.W. 2d 393, and

Clifton v. State, Tex. Cr. App., 246 S.W. { d 201,

that said article is not an enhancement of pun-

ishment statute but creates a new and indepen-

dent crime of the grade of felony, an essential

element of which is that the person charged has

previously been convicted of a misdemeanor of-

fense of ving while intoxicated. The addition-

al allegation of the prior misdemeanor convic-

tion thus vests the District Court with juris-

diction. It is only in cases arising under Ar-

ticles 61-64, Vernon’s Ann. P.C., that the rule

in the Kinney case, and those which follow it,

apply. We hold that the prior use of the mis-

demeanor conviction does not prevent its subse-

quent re-use for the same purpose and that such

subsequent re-use does not violate the constitu-

tional prohibition against placing an accused

twice in jeopardy. This Court, as now consti-

tuted, is not inclined to extend the rule in the

Kinney case, supra.”

And in answer to Appellant’s second contention

the Court said:

“Bill of exception No. 3 asserts that the 1951

amendment changes the punishment prescribed

by the 1941 act and contends that, since the pun-

ishment was different when appellant committed

the 1947 offense, a conviction under the 1951

amendment, in which a 1947 offense was al-

as; ae

leged in order to give the court jurisdiction,

would be giving ex post facto effect to the 1951

amendment.

“Appellant cites from Thacker v. Common-

wealth, 228 Ky. 819, 16 S.W. 2d 448, 449:

“Our opinions so holding, and which are in

complete accord with those from other jurisdic-

tions upon the subject, are based upon the prop-

osition that it is incompetent for the Legisla-

ture to provide for an increased punishment

for a second conviction, when the first offense of

which defendant was convicted was committed

before the enactment of the statute so prescrib-

ing.’

“We now analyse the two acts:

“That portion of the 1941 act which pre-

scribes the punishment reads as follows:

“«* * * shall be guilty of a felony and upon

conviction be punished by confinement in the

penitentiary for any term of years not less than

one (1) nor more than five (5).’

“That portion of the 1951 amendment which

prescribes the punishment reads as follows:

“«* * * be guilty of a felony; and upon con-

viction shall be punished by a fine of not less

than One Hundred ($100.00) Dollars nor more

than Five Thousand ($5,000.00) Dollars or con-

confinement in the county jail not less than

ten (10) days nor more than two (2) years, or

by both such fine and imprisonment, or by con-

finement in the state penitentiary not to exceed

five (5) years.’

“If the punishment provided by the 1951

amendment had been materially increased, we

would be inclined to agree with appellant’s con-

tention. But we do not so construe the change.

Between 1941 and 1951, all citizens were

charged with the knowledge that if they vio-

pas” ame

lated the driving while intoxicated statute, they

would receive certain misdemeanor punish-

ishment on their first conviction, and on the

second they might be assured of a stay in the

penitentiary if convicted.

“Since 1951, no such warning or assurance

exists. All citizens are now charged with the

knowledge that if they violated that on a second

conviction they may go to the penitentiary or

they may be treated more leniently and receive

only a fine or jail sentence.

“This we feel to be the only logical interpre-

tation to be given to the rule expressed in the

Thacker case and, accordingly, overrule appel-

lant’s contention in this respect.”

Now let us turn to the facts and contentions of

petitioner in this case. As before stated in the State-

ment of the Case, Petitioner was duly and legally

indicted and convicted for the felony offense of driv-

ing while intoxicated under Article 802b, V.P.C., as

amended in 1951. As basis for jurisdiction for such

conviction, the misdemeanor conviction for driving

while intoxicated in 1950 was plead in the indict-

ment (R-1).

That Article 802b, V.P.C. as enacted in 1941 and

as amended in 1951 is not an enhancement of the

punishment but created a new and independent

crime of the grade of felony is not and cannot be

contested by Petitioner. Broughton v. State, Clifton

v State and Hill v. State, supra.

That Article 802b, V.P.C., as amended in 1951, did

not increase the punishment over the 1941 Act but

reduced the punishment cannot be denied. Hill v.

State, supra.

cay fy A

The Petitioner contends that under Burton v.

State, supra, the effect of Article 802b was to create

the felony offense of drunk driving separate and

apart from the misdemeanor offense, so that a sec-

ond violation could be prosecuted either as a misde-

meanor or as a felony, as the State might elect. That

the 1951 amendment went further than to change

the punishment in that the amendment provided

that any person who has been convicted of the mis-

demeanor offense of drunk driving and who shall

thereafter drive while drunk “shall for each and

every subsequent such violation be guilty of a fel-

ony.” That by that provision of the amendment it

was no longer possible for a second offender to be

prosecuted under the misdemeanor statute as could

formerly be done under the holding of Burton v.

State, supra. That as a result the effect of the 1951

amendment was to increase the punishment for a sec-

ond offense by mandatorily making his second of-

fense a felony, whereas prior to such amendment his

second offense could be a misdemeanor under Art.

802 V.P.C., or a felony under Art. 802b, V.P.C., at

the election of the prosecuting attorney.

Now let us examine this contention of Petitioner,

which is the essence of his whole case, and see if such

contention has any merit.

In the first place nowhere does Petitioner cite any

cases to support his theory. In the second place, Peti-

tioner places an improper and misleading interpreta-

tion on Burton v. State, supra. The Court of Criminal

Appeals did not say that under Article 802b, V.P.C.,

the prosecuting attorney, if he saw fit, and at his

election, could proceed against a second offender un-

a, en

der the misdemeanor statute by merely filing a com-

plaint and information in the county court without

mentioning the previous misdemeanor convection or

he could proceed aganst such second offender under

the felony statute by indictment alleging the previ-

ous misdemeanor conviction. What the Court said

and all the Court said was, and we quote:

“Bill No. 2 reflects the following: While ap-

pellant was on the witness stand in his own

behalf he was asked by the State’s attorney if

he had not, in January, 1945, in this same

county court, been convicted of driving a car

while intoxicated, and, over the objection of his

attorney, he was caused to answer that he had

been thus convicted. The first conviction for

drunken driving is a misdemeanor, and-there-

fore not a felony and not admissible in order to

affect one’s credibility, if it does so. It had also

been held that the admission of extraneous of-

fenses not involving moral turpitude are con-

fined to felonies only. Branch’s P. C., Sec. 169,

p. 102. True it is that a second offense for

drunken driving could be made the basis of a

felonious prosecution, but the instant prosecu-

tion pleads only one offense, and makes no men-

tion of a previous conviction, thus falling within

the category of a misdemeanor. See Art. 802b,

Vernon’s Ann. P.C., for the first offense, a sub-

sequent offense being a felony, if properly

pleaded. As a misdemeanor drunken driving is

not an offense involving moral turpitude, the

admission of appellant’s previous conviction

therefor was not admissible. It is shown by the

iii,

bill of exceptions that the trial court was of the

opinion that such prior conviction was admitted

as an extraneous offense because it was thought

same showed system. We think such previous

conviction failed to show system, and did not

come within the exceptions allowing such proof.”

Before further discussing this holding of the

Court, let us turn to Respondent’s third proposition

that under Art. 802b, V.P.C., as enacted in 1941, the

language was mandatory that a person committing

a second or subsequent offense of drunk driving shall

be guilty of a felony. See Article 802b, V.P.C. as

enacted in 1941 hereinabove set forth noticing in

particular the underlined portion thereof. The lan-

guage in the 1951 amendment is substantially the

same as that in 1941 and therefore in both statutes it

was and is mandatory that the subsequent offenders

shall be guilty of and proceeded against as a felony.

It is a well known fact, of which this Honorable

Court can take judicial knowledge, that under stat-

utes such as we are confronted with here, and en-

hancement of the punishment statutes, the problem

continually confronts States attorneys in searching

out previous convictions. This is so because of the

problem of changing offices, shortage of personnel,

and the cost and time of maintaining proper files of

offenses previously committed in the same county,

and in the situation of previous offenses committed

in other counties the problem becomes even more

acute.

sccelcan

Furthermore, in such cases the well known prin-

cipal applies that when the offense for which the

accused is tried includes within it lesser offenses, a

conviction of the lower grade acquits him of the

higher, and he may not later be tried for the higher

offense. Thomas v. State, 40 Tex. 36; Munoz v. State,

81 Tex. Crim. Rep. 629, 197 S.W. 871; DeLeon v.

State, 55 Tex. Crim. Rep. 39, 114 S.W. 828.

With these propositions in mind, let us now exam-

ine the holding in Burton v. State, supra. The prose-

cuting attorney failed to discover the previous misde-

meanor conviction in time, or negligently failed to

properly plead it and then tried to use it for purposes

which the court held were improper. The Court mere-

ly said that the second offense could be a felony if

properly pleaded but the prosecution plead only one

offense which fell in the category of a misdemeanor.

Therefore the 1951 amendment did not impose a

new or different or increased punishment by manda-

torily making a second violation a felony because

under both Article 802b, V.P.C. and the 1951 amend-

ment it was mandatory that a second offense consti-

tuted a felony. That Burton v. State is still the law

that a subsequent offense for drunken driving could

be the basis for a felony if properly pleaded under

802b, V.P.C., and if not constitutes only a misde-

meanor. That the 1951 amendment did not go further

than to change the punishment for the felony offense,

which said change did not increase but decreased the

punishment and therefore was not ex post facto. Hill

v. State, supra.

or, ee

Petitioner cites at some length Clifton v. State,

aes Tex. Crim. R. __. 246 S.W. 2d 201, and in his

Petition (Petition, p. 5) states “the felony drunk

driving statute involved Article 802b, as amended

in 1951, has been construed by the Court of Criminal

Appeals of Texas to create a new offense with ma-

terial changes insofar as punishment is concerned.”

It is true that the Court said Article 802b V.P.C.,

as amended, made material changes, especially in-

sofar as the matter of punishment is concerned, but

the Court did not hold that a new offense was cre-

ated.

This statement by the Court was mere dicta and

what the Court held was that the case before it was

tried prior to the amendment and therefore Article

802b, V.P.C., as amended in 1951, was not before

the Court at that time for the Court to pass on.

Subsequently, in the case of Hill v. State, supra,

when the amendment was squarely before the Court,

and was passed on by the Court, they held, as herein-

above fully set out, that the material changes in the

punishment was not increased so as to render the

1951 amendment Ex Post Facto, but to the contrary,

was decreased.

Petitioner was duly and properly tried in a Texas

Court for a Texas crime and since petitioner has not

raised a Federal question with any merit, this Hon-

orable Court is not concerned.

a)

CONCLUSION

For the foregoing reasons, it is respectfully sub-

mitted that this Petition for Writ of Certiorari

should be denied.

JOHN BEN SHEPPERD

Attorney General of Texas

HORACE WIMBERLY

Assistant

RUDY G. RICE

Assistant

Capitol Station

Austin, Texas

Counsel for Respondent,

The State of Texas