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Texas Court of Criminal Appeals Announces ‘Finality’ Under Sentence Enhancement Provision for Out-of-State Convictions Governed by Texas Law

by Dale Chappell

“Finality” of an out-of-state conviction to support an enhanced sentence depends on whether Texas State law would consider that prior conviction “final,” not on the particular state of conviction, the Court of Criminal Appeals of Texas held, finding a suspended sentence in California cannot serve as the basis for an enhanced sentence under the habitual-offender provision of Texas Penal Code § 12.42(d).

Jeremy Pue filed an application for writ of habeas corpus in the Court of Criminal Appeals, claiming that his enhanced sentence based on his prior California suspended sentence for a controlled substance offense was not “final” and thus cannot serve to enhance his sentence as a habitual offender. Because it exceeded the statutory maximum, absent the enhancement, Pue argued that his sentence was illegal. The Court agreed and vacated his sentence.

A claim that a sentence is illegal because it exceeds the statutory maximum for the offense is cognizable in a writ of habeas corpus and may be raised at any time, even if it was not raised on direct appeal. Ex parte Rich, 194 S.W.3d 508 (Tex. Crim. App. 2006). Texas Penal Code § 12.42(d) provides that an enhanced sentence may be imposed if the defendant has previously been “finally convicted” of at least two felony offenses.

The Court announced that a conviction is not final under Texas law when the imposition of sentence has been suspended and only probation imposed. An actual sentence must be imposed. Under California law, Pue’s suspended sentence is considered final; however, for purposes of the sentencing enhancement provision, Texas law on finality governs.

The Court noted that there is “no statutory authority allowing for out-of-state law to control punishment enhancement in Texas.” Indeed, where there are exceptions to allow for non-final convictions to count for an enhanced sentence, Texas lawmakers provided them. But when there are no exceptions under Texas law, an out-of-state prior conviction that is not “final” under Texas law cannot be used to enhance a Texas sentence, the Court held.

Accordingly, the Court of Criminal Appeals vacated Pue’s sentence and remanded for resentencing without the enhancement. See: Ex parte Pue, 2018 Tex. Crim. App. LEXIS 63 (2018). 

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