Rich, Ex Parte David Alan ( 2006 )

                     IN THE COURT OF CRIM­INAL APPEALS

                                    OF TEXAS

                                                                       AP-75,112

                                             Ex parte DAVID ALLEN RICH, Applicant

                                                Application for Writ of Habeas Corpus.

                           Case F‑2001‑0532‑CWHC1 of the 211th Judicial District Court of

                                                                  Denton County.

Womack, J., filed a concurring opinion, in which Johnson and Cochran, JJ, joined.

I join the judgment of the Court, and I generally agree with the latter half of its opinion. The first half is inconsistent with the latter, and it is unnecessary.

I do not agree that this case presents Aa claim of illegal sentence based on an improper enhancement@ (ante, at 1). The cases which the Court cites in the first half of its opinion are ones in which it granted relief from the portion of a  judgment that contained a fine when the jury had not imposed a fine,^[1] and from the portion of a  judgment that contained a fine when the punish­ment provision of the penal statute did not include a fine as an available punishment.^[2] There was no such lack of authority in this case.

The Court also finds support for its action in a case in which a punishment was illegal because it did not include a fine when the penal statute required a fine,^[3] cases in which the punishments for state-jail felonies were enhanced under statutes that did not apply to state-jail felonies,^[4] a case in which a fine was assessed when the statute did not provide for a fine,^[5] and a case in which the judgment probated the fine but not the confinement.^[6] The Court says that these cases were like today=s case because the older cases were Asituations in which the illegality of the judgment was apparent from the facts before the trial court,@ while today=s case merely Ainvolves a different situation.@^[7]

But the punishments in those cases were not illegal because of Afacts before the trial court.@ They were illegal because the punishments were unauthorized under the law, regardless of the facts of the cases. The illegalities were apparent on the faces of the judgments before the ink was dry . No reference to the facts before the court was involved, and no proof of new facts was involved. This is precisely why the cases the Court cites are different from today=s case, in which there is nothing wrong on the face of the judgment against this applicant, and the merits of his claim could not be presented without proof of contradictory facts that are outside the record of his conviction. The instant case involves a judgment that seems legal but is false as a matter of fact, while the judgments in the case the Court cites in the first half of its opinion provided penalties that were unauthorized by law.

The indictment in this applicant=s case alleged a sequence of prior convictions to enhance punishment. If the allegations were true, they would have authorized the punishment that he received. The applicant pleaded that the allegations were true. There is nothing unauthorized about the punishment. It just turns out, on further investigation, that the first enhancement paragraph alleging a prior felony conviction was not true.

The appropriate analogy is not to a case of unauthorized punishment; it is, I believe, to a case of actual innocence. In such a case, an indictment alleged facts that, if true, would have subjected a defen­dant to conviction. A court found the facts to be true and entered the conviction authorized by law. It just turns out, on further investigation, that the allegation was not true. We grant relief, not because the conviction was Aunauthorized,@ but because we have decided that such a conviction denies due process of law.

The second half of the Court=s opinion is, in part, agreeable with this reasoning. It says (ante, at 5), AThe resolution of this case depends on whether Applicant=s sentence is actually illegal. When the judge delivered the sentence based on the indictment before him, he acted within his authority and the law. It was not until the trial court discovered that one of Applicant=s felony charges had been reduced to a misdemeanor offense that the problem with the sentence became known.@ If the Court=s opinion began with this reasoning, which makes its earlier analysis unnecessary and inappropriate, I would join it.

The Court should do in this case as it has done in other cases in which district courts have entered judgments that were authorized by law but were based on findings of fact that turned out to be false. It should make no difference that this case involved a false sentencing fact rather than a false element-of-the-crime fact.

The Court=s opinion says that this is not a case of actual innocence for two reasons. First, the applicant is not actually innocent of the offense for which he was previously convicted.^[8] Second, his Asituation does not involve the traditional hallmarks of actual innocence claims C newly discovered evidence showing that the defendant is being wrongfully imprisoned for a crime he did not commit.@^[9] But he is actually innocent of being an habitual felony offender, and we know because of newly discovered evidence showing that he is being wrongfully imprisoned for a criminal history he did not have. This is much more closely analogous to our actual-innocence cases than it is to the unauthorized-sentence cases on which the Court bases its reasoning in the first half of its opinion.

I hope that when the bench and bar seek to follow the Court=s decision in this case, they will decide to follow the reasoning of the latter half of the opinion.

I concur only in the judgment.

Filed June 7, 2006.

Publish.

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^[1] Ex parte Pena, 71 S.W.3d 336 (Tex. Cr. App. 2002) (cited ante, at 4 n.3).

^[2] Ex parte Johnson, 697 S.W.2d 605 (Tex. Cr. App. 1985) (cited ibid.).

^[3] See ante, at 5 n.6 (citing Mizell v. State, 119 S.W.3d 804 (Tex. Cr. App. 2003) (sentence of A$0@ was not authorized by law prescribing punishment of Aa fine not exceed $4,000@)).

^[4] See ibid. (citing Ex parte Miller, 921 S.W.2d 239 (Tex. Cr. App. 1996) (enhancement of state-jail-felony punishment was not authorized by statute); Ex parte Beck, 922 S.W.2d 181 (Tex. Cr. App. 1996) (same)).

^[5] See ibid. (citing Ex parte Johnson, 697 S.W.2d 605 (Tex. Cr. App. 1985)).

^[6] See ibid. (citing Ex parte McIver, 586 S.W.2d 851 (Tex. Cr. App. 1979)).

^[7] Ante, at 5.

^[8] Ante, at 12.

^[9] Ibid.