## I N T H E C O U R T O F C R I M I N A L A P P E A L S O F T E X A S

NOS. WR-82,581-02 & WR -82,581-03

EX P ARTE DARRELL W. DAVIS, Appl icant

ON AP P LICATIONS FOR WRITS OF HABEAS CORP US CAUSE NOS. C-4-W012195-1265894- B & C-4-W012191- 1262850-A IN THE CRIMINAL DISTRICT COURT NO. 4 FROM TARRANT COUNTY

K E L L E R , P .J., fi led a concurring opin ion.

CONCURR ING

OP INION

I n 2012, Applicant was convicted of a third-deg ree felony , enhanc ed with two prior felonies. The proble m is that one of the two priors is a state-jail felony , and the question is w hether using it
for e nhance ment was a llowable. I believe tha t it was not. A litt le history is in order.

I n State v. W

ebb , we explained that there are two ty pes of state-jail felonies: non-ag g rava ted 1 (those punishable under § 12.35(a) ), and ag g rava ted (those punishable under § 12.35(c) ). We held 2

12 S.W .3d 808 (Tex. Crim. App. 2000). 1
Id. at 811. All ref

ere nces to sections are to the Texas Penal Code unless otherwise noted. 2DAVIS CONCUR RENCE — 2

that, even when a non-ag g rava ted state-jail felony is e nhance d under § 12.42, it is still considere d 3

a non-a g g rava ted state-ja il felony , “punishable unde r § 12.35(a ).”

I n W ebb , the defe ndant was convicted of possession of a co n t rolled substance, a nonag g rava ted st at e-jail felony

. The State pled two enhanc ement para g raphs. The first para g raph 4 5 alleg ed two prior sequential felonies. I f proven, the def en d ant would be “punished for a second deg ree felony ” under § 12.42(a) (2). The second para g raph alleg ed two additional prior sequential 6
felonies which, if proven, would require that he be punished as a habitual offe nder under § 12.42(d). 7

I n eff ect, the State tried to turn the non-a g g rava ted state jail fe lony into a second-deg ree felony so
that it could then be enhanc ed by other felonies, and Webb could be punished as a habitual offe nder.

But by its own terms, § 12.42 (d ) d o es not apply to “a state jail felony punishable under
Section 12.35(a) .” The State in W ebb contende d that once a defe ndant’s conviction was enhanc ed 8

Id. 3
Id. at 809. 4
Id. at 810, 811 (quoting § 12.42(d) (“I f it is shown on the trial of a felony offe nse other than 5
a state jail felony punishable under Section 12.35(a) that the defe ndant has previously been finally convicted of two felony offe nses, and the s econd previous felony conviction i s for a n offe nse t hat
occur red subsequent to the first previous conviction having become final, on conviction he shall be punished by imprisonment in the instit utional division of the Texas Depa rtment of Criminal J ustice for life , or for

any term of not more than 99 y ear s or less than 25 y ear s.”))

. Id. at 810 (quoting § 12.42(a) (2) (“I f it is shown on the trial of a state jail felony punishable 6 under Section 12.35(a) that the defe ndant has previously been finally convicted of two felonies, and the second previous felony conviction is for an offe nse that occur red subsequent to the first previous conviction having become final, on conviction the defe ndant shall be punished for a second- deg ree felony .”))

. Id. 7
Id. at 810 (“I f it is shown on the trial of a felony offe nse oth er t h an a s t at e j ail felony 8 punishable under

Section 12.35(a) . . .”) ( emphasis adde d).DAVIS CONCUR RENCE — 3

under 12.42(a) (2), the offe nse was no longe r “punishable under § 12.35(a) ,” allowing the conviction

to be further enhanc ed under § 12.42(d). We disag ree d. We said that the State’s construction 9 1 0
failed to differ entiate betwee n an enhanc ed offe nse and enhanc ed punishment. We held that, 1 1

reg ardle ss of the 12.42(a) (2) enhanc ement, the defe ndant was tried for a state jail felony punishable
under § 12.35(a)

. The fac t tha t his punishment, as opposed to the offe nse itself, was then subject 1 2
to enhanc ement did not chang e that fa ct. That being so, § 12.42(d) wa s not applicable. 1 3 1 4

I n 2011, afte r W

ebb was issued but befor e Applicant’spr imary offe nses wer e committed, the leg islature added other lang uag e to § 12.42(d) say ing that a state jail felony punishable under Section 12.35(a) could not be used to e nhance punishment under that statute: 1 5

Ex cept as provided by Subsection (c)(2 ) or (c) (4), if it is shown on the trial of a felony offe nse other than a state jail felony punishable under Section 12.35(a) that the defe ndant has previously been finally convicted of two felony offe nses
. ..the defe ndant shall be punished by imprisonment in the Texas D epar tment of Criminal J ustice for life, or for any term of not m o re t h an 9 9 y ear s or less than 25 y ear s. A previous convic tion for a statejail felony punishable under Section 12.35( a) may not be used for enhanc eme nt purposes under this subsection. 1 6

Id. at 811. 9
Id. 1 0
Id. 1 1
Id. 1 2
Id. 1 3
Id. 1 4
Acts 2011, 82nd L eg ., ch. 834 (H.B

. 3384), § 4. The amendment applies only to offe nses 1 5 committed on o r af

t er t h e ef fe ctive date of the Act. Id. § 7. The eff ective date of the Act was September 1, 2011, id. § 8, and the offe nses in Applicant’s two case s befor e us wer e committed on November

20, 2011 (-02 a

pplication) and D ece mber 2, 2011 (the -03 applica tion). § 12.42(d) ( 2011) (e mphasis added)

. 1 6DAVIS CONCUR RENCE — 4

So, under the new lang uag e, what W ebb held with respe ct to the primary offe nse now applies
also to enhanc ing priors. Presumably , t h e l egi s l ature was awa re of W ebb when it amende d § 12.42(d). And W

ebb has been relied upon by this Court in construing two diverse statutes outside 1 7
the Penal Code. I t is logic al to think that W ebb would apply to the identical lang uag e added in the 1 8

same statutory subsection that W ebb construed. State jail felonies punishable under § 12.35(a) can
neither be enhanc ed nor used to enhanc e under § 12.42(d), regardless of whether they have been
enhanc ed under

a diffe rent subsec tion of § 12.42.

I n S a ma r i pas v. Stat e , we noted this 2011 amendment to § 12.42(d) and stated, i n dict u m , “Ha d [t he defenda

nt] committed the curr ent offe nse af ter this amendment, it would not have been

proper for h i s p ri o r s tate-ja il felony [t hat had been enhanc ed under § 12.42(a) (2)] to be used for
enhanc ement.” A citation to W ebb might have been helpful, but it was dictum , so perha ps the 1 9

Court simply did not want t o s p end much time on it. Neve rtheless, W ebb exis ted at the time and fully supports the Samaripas dictum

. I join the Court’s opinion.
Deliver ed: Fe bruar

y 1, 2023 Publis h

See Scott v. State , 55 S.W .3d 593, 596 (Tex

. C ri m
. App. 2001) (“We presume the

1 7 L eg islature wa s awa

re of this caselaw

in drafting the provision now bef ore us.” ).
See Ex parte Reinke , 370 S.W .3d 387, 389 (Tex. Crim. App. 2012) (provision imposing 1 8 “maximum term” limit ation to commitment pursuant to a finding of incompetenc y ); Ford v. State , 334 S.W .3d 230 (Tex. Crim. App. 2011) (sex-offende r-r eg istration enhanc ement provision).
454 S.W .3d 1, 8 n.5 (Tex. Crim. App. 2014) (bra ckete d materia l added to explain context). 1 9