# Opposition Brief — Coaker v. Texas

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 1954
- **Citation:** 346 U.S. 924

## Text

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386417_1959%3A2. Public record. Not legal advice.