Paul Raylyn Dwayne Carson v. the State of Texas ( 2021 )

Opinion filed December 30, 2021
In The
Eleventh Court of Appeals
__________
No. 11-19-00373-CR
__________
PAUL RAYLYN DWAYNE CARSON, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 350th District Court
Taylor County, Texas
Trial Court Cause No. 13381-D
MEMORANDUM OPINION
The jury convicted Paul Raylyn Dwayne Carson of assault family violence.
The trial court assessed his punishment at confinement in the Institutional Division
of the Texas Department of Criminal Justice for a term of ten years. Appellant
challenges his sentence in three issues. We affirm.
The State charged Appellant by indictment with the following conduct:
[Appellant] then and there intentionally, knowingly, and recklessly
cause[d] bodily injury to [Ysmelda Young], a person with whom the
said [Appellant] has or has had a dating relationship as described by
§71.0021, of the Texas Family Code, by intentionally, knowingly and
recklessly impeding the normal breathing and circulation of the blood
of the said [Ysmelda Young] by applying pressure to the throat and
neck of the said [Ysmelda Young].
The indictment referenced “assault family violence” as the offense charged,
but the indictment did not reference a specific provision of the Texas Penal Code
that was applicable to the charged offense. The indictment also alleged a prior felony
conviction for enhancement purposes.
The offense of assault family violence is set out in Section 22.01 of the Texas
Penal Code. See TEX. PENAL CODE ANN. § 22.01 (West Supp. 2021). At the time
that Appellant committed the offense, Section 22.01 had two subsections labeled
“(b-2)” that addressed the applicable punishment for the offense. The “first”
subsection (b-2) provided as follows:
(b-2) Notwithstanding Subsection (b)(2), an offense under Subsection
(a)(1) is a felony of the second degree if:
(1) The offense is committed against a person whose
relationship to or association with the defendant is
described by Section 71.0021(b), 71.003, or 71.005,
Family Code;
(2) it is shown on the trial of the offense that the defendant
has been previously convicted of an offense under this
chapter, Chapter 19, or Section 20.03, 20.04, or 21.11
against a person whose relationship to or association with
2
the defendant is described by Section 71.0021(b), 71.003,
or 71.005, Family Code; 1 and
(3) the offense is committed by intentionally, knowingly,
or recklessly impeding the normal breathing or circulation
of the blood of the person by applying pressure to the
person’s throat or neck or by blocking the person’s nose
or mouth.
Act of May 4, 2017, 85th Leg., R.S., ch. 34, § 27 (S.B. 1576), 2017 Tex. Gen Laws
72, 81 (codified at PENAL § 22.01(b-2)) (amended 2019) (current version at Penal
§ 22.01(b-3)). 2 Thus, the indictment in this case tracked the language of the first
subsection (b-2) as it existed at the time of the offense.
The “second” subsection (b-2) provided as follows:
(b-2) Notwithstanding Subsection (b)(1), an offense under Subsection
(a)(1) is a felony of the second degree if the offense is committed
against a person the actor knows is a peace officer or judge while the
officer or judge is lawfully discharging an official duty or in retaliation
or on account of an exercise of official power or performance of an
official duty as a peace officer or judge.
PENAL § 22.01(b-2). This “second” subsection (b-2) was added by Act of May 23,
2017, 85th Leg., R.S. ch. 440, § 3 (H.B. 2908), 2017 Tex. Gen Laws 1163–64
(codified at PENAL § 22.01(b-2)) and continues to be designated as subsection (b-2).
Both provisions became effective in 2017, before Appellant’s arrest in 2018 and
conviction in 2019. As set out below, Appellant’s three issues on appeal all concern
the effect of the two subsections that were labeled (b-2). We affirm Appellant’s
conviction and sentence.
1
Appellant had at least one prior conviction for assault family violence.
2
See Act of May 21, 2019, 86th Leg., R.S., ch. 467, § 21.001(39) (H.B. 4170) (codified at Penal
§ 22.01(b-3)), which provides: “Subsection (b–2), Section 22.01, Penal Code, as added by Chapter 34 (S.B.
1576), Acts of the 85th Legislature, Regular Session, 2017, is redesignated as Subsection (b–3),
Section 22.01, Penal Code.”
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Background Facts
Appellant and Young began a dating relationship around April 2018. Their
relationship started off well but quickly began to sour. Young stated that Appellant
“tried to be overbearing, tried to pretty much tell [her] what to do every day, started
cussing [her], calling [her] names, arguing with [her].” On May 2, 2018, Appellant
and Young engaged in an argument at Young’s home that escalated to the point
where Young called the police. When Appellant learned of Young’s first attempt to
contact the police, he punched past Young’s face, denting her refrigerator in the
process. Additionally, Appellant took Young’s phone away from her to prevent her
from completing her 9-1-1 call and pushed her face into the refrigerator. The 9-1-1
operator called Young’s phone back after the first call disconnected. Appellant did
not disconnect Young’s phone during the second call. Sometime during Young’s
second 9-1-1 call, Appellant left the apartment.
The police did not arrest Appellant following the May 2 incident. After the
May 2 incident, Young and Appellant ceased their dating relationship, but the two
continued to maintain contact. Young explained that she kept in contact with
Appellant following the termination of their dating relationship because
[she] wanted to know where his mentality was. [She] wanted to make
sure [she] was going to be safe, he wasn’t angry at something [she] had
done or probably would do. [She] wanted to keep a close eye on him
for [her] own peace of mind because [she] wanted to make sure [she]
was safe. [She] wanted to pacify him, keep him calm, tell him whatever
he wanted to hear to keep him, [she guesses], to stay on his good side.
Appellant and Young remained in contact between May 2 and May 19.
On May 19, following her shift at work and an early morning meal, Young
returned to her apartment. As Young walked up to her front door, Appellant attacked
Young from behind. After Appellant’s attack, Young called 9-1-1. Young suffered
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injuries to her throat due to Appellant’s attempts to impede her airway. The police
arrested Appellant the following day.
At the outset of Appellant’s punishment hearing, the parties informed the trial
court that the legislature had enacted two subsections labeled (b-2). Appellant
asserted that, since the second (b-2) was enacted after the first (b-2), it superseded
the first (b-2). The significance of this argument is that if the second subsection (b-
2) superseded the first subsection (b-2), then Appellant was improperly sentenced
for a second-degree felony, which, with Appellant’s prior felony conviction, resulted
in the applicable punishment range being that of a first-degree felony.
Analysis
Appellant challenges his sentence in three issues. In his first issue, Appellant
asserts that an ex post facto violation occurred when the trial judge sentenced him
pursuant to the provisions of the first subsection (b-2). In Appellant’s second issue,
he contends that the trial court’s construction of the two statutes was
“unforeseeable,” which, in turn, functions like an ex post facto violation, thus
violating Appellant’s due process rights. In Appellant’s third issue, he contends that
the trial court erred when it imposed a sentence enhanced to a first-degree felony
range when the applicable punishment range was that of a second-degree felony.
Lying at the heart of Appellant’s three issues is a question of statutory
construction. Statutory interpretation is a question of law, which we review de novo.
Pruett v. State, 510 S.W.3d 925, 927 (Tex. Crim. App. 2017). We interpret a statute
according to the plain meaning of its language unless the statute is ambiguous or the
plain meaning leads to absurd results that the legislature could not possibly have
intended. Id.This case presents a particular question of statutory interpretation—
interpreting two amendments enacted at the same session of the legislature. See
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Young v. State, 14 S.W.3d 748, 752 (Tex. Crim. App. 2000). “If amendments to the
same statute are enacted at the same session of the legislature, one amendment
without reference to another, the amendments shall be harmonized, if possible, so
that effect may be given to each.” Id. (citing TEX. GOV’T CODE ANN. § 311.025(b)
(West 2013)).3 The two amendments at issue in this case, SB 1576 (the first (b-2))
and HB 2908 (the second (b-2)), were both enacted during the same legislative
session (the 85th Regular Session), and neither amendment referenced the other.
Thus, we must harmonize the two amendments, if possible, to give effect to each.
“Only if the two provisions are irreconcilable will the amendment with the later date
take precedence over the earlier.” Id.; see GOV’T § 311.025(a).
We conclude that the two subsections labeled (b-2) can be harmonized to give
effect to each. The only overlap between the two subsections is the fact that they
are labeled with the same subsection number. They address different situations. The
first subsection (b-2) made it a second-degree felony to commit an assaultive offense
against a person with whom the accused is in, or has been in, a dating or family
relationship. See TEX. FAM. CODE ANN. §§ 71.0021(b), 71.003, 71.005 (West 2019).
The second subsection (b-2) made it a second degree-felony to commit an assault
against a peace officer or judge. The legislature clearly intended to protect two
different classes of victims with the two amendments. See Hines v. State, 515
S.W.2d 670, 675 (Tex. Crim. App. 1974) (two statutes that applied under different
factual scenarios could be harmonized).
The holding in Dodd v. State is instructive. 650 S.W.2d 129, 130 (Tex.
App.—Houston [14th Dist.] 1983, no writ). There, the only overlap or conflict
between the statutes under review was the numbering system used in each. Id. The
Section 311.025 is applicable to the construction of the provision of the Texas Penal Code. See
3
PENAL § 1.05(b) (West 2021).
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court determined that the texts of the statutes were not conflicting because the
statutes dealt with “completely different subject matters.” Id. Such is the case here.
The words of the two subsections deal with different matters and the texts do not
conflict. In this regard, the text of a statute is the primary focus of our analysis. See
Watkins v. State, 619 S.W.3d 265, 271–72 (Tex. Crim. App. 2021).
Appellant is essentially asserting that the second subjection (b-2) repealed the
first subsection (b-2) by implication. Repeal by implication is not favored under
Texas law. Hines, 515 S.W.2d at 675; Standard v. Sadler, 383 S.W.2d 391, 395
(Tex. 1964); Dodd, 650 S.W.2d at 130. If the statutes in question can be harmonized,
then there will be no repeal by implication. Dodd, 650 S.W.2d at 130; see State v.
Hannis, No. 11-98-00268-CV, 1999 WL 33748061, at *5 (Tex. App.—Eastland
1999, no pet.) (not designated for publication). Because the text of the two
subsections can be harmonized, the second subsection (b-2) did not repeal the first
subsection (b-2) by implication.
Moreover, the only overlap between the two subsections is that they bear the
same subsection number. This was a numbering error that the legislature corrected
in the 86th legislative session. In correcting this issue, the legislature simply
renumbered the first subsection (b-2) to subsection (b-3). This action indicates that
the legislature had no intent to repeal either version of subsection (b-2) in the 85th
legislative session, but rather, the legislature merely committed a numbering error.
Appellant’s three issues on appeal are all contingent on his statutory
contention that we have rejected. For example, he asserts that an ex post facto
violation occurred because he was punished under a statute, the first subsection (b-
2), that he contends no longer existed because of the subsequent adoption of the
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second subsection (b-2).4 Relying on his statutory construction, he asserts in his
second issue that he had no notice of the punishment assessed against him. He
asserts in his third issue that he was incorrectly sentenced, once again, based on his
interpretation of the statute. Having determined that the statutory provision under
which Appellant was sentenced remained in effect, we overrule his three issues on
appeal.
This Court’s Ruling
We affirm the judgment of the trial court.
JOHN M. BAILEY
CHIEF JUSTICE
December 30, 2021
Do not publish. See TEX. R. APP. P. 47.2(b).
Panel consists of: Bailey, C.J.,
Trotter, J., and Williams, J.
4
Both the United States and the Texas Constitutions prohibit the application of any ex post facto
law, and the same standard is applied under both provisions. U.S. CONST. art. I, § 10, cl. 1; TEX. CONST.
art. I, § 16; Grimes v. State, 807 S.W.2d 582, 586 (Tex. Crim. App. 1991). The ex post facto clauses found
in both constitutions prohibit four types of laws. They prohibit (1) laws that make an action done before
the passing of the law, and which was innocent when done, criminal and punishable; (2) every law that
aggravates a crime or makes it a greater crime than it was when committed; (3) every law that changes the
punishment and inflicts a greater punishment than the law annexed to that crime when it was committed;
and (4) every law that alters the legal rules of evidence and requires less, or different, testimony than the
law required to convict the offender at the time of the commission of the offense. Carmell v. Texas, 529
U.S. 513, 521 (2000) (citing Calder v. Bull, 3 U.S. 386, 390 (1798)). An ex post facto analysis focuses on
whether the statute assigns more severe criminal or penal consequences to an act than did the law in place
when the act occurred; it is irrelevant whether the statutory change touches any vested rights. Grimes, 807
S.W.2d at 587 (citing Weaver v. Graham, 450 U.S. 24, 29 n.13 (1981)).
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