Davis, Darrell W.

IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
NOS. WR-82,581-02 & WR-82,581-03

EX PARTE DARRELL W. DAVIS, Applicant

ON APPLICATIONS FOR WRITS OF HABEAS CORPUS
CAUSE NOS. C-4-W012195-1265894-B & C-4-W012191-1262850-A
IN THE CRIMINAL DISTRICT COURT NO. 4 FROM TARRANT COUNTY

KELLER , P.J., filed a concurring opinion.

CONCURRING OPINION

In 2012, Applicant was convicted of a third-degree felony, enhanced with two prior felonies.

The problem is that one of the two priors is a state-jail felony, and the question is whether using it

for enhancement was allowable. I believe that it was not. A little history is in order.

In State v. Webb,1 we explained that there are two types of state-jail felonies: non-aggravated

(those punishable under § 12.35(a)), and aggravated (those punishable under § 12.35(c)).2 We held

1
12 S.W.3d 808 (Tex. Crim. App. 2000).
2
Id. at 811. All references to sections are to the Texas Penal Code unless otherwise noted.
DAVIS CONCURRENCE — 2

that, even when a non-aggravated state-jail felony is enhanced under § 12.42,3 it is still considered

a non-aggravated state-jail felony, “punishable under § 12.35(a).”

In Webb, the defendant was convicted of possession of a controlled substance, a non-

aggravated state-jail felony.4 The State pled two enhancement paragraphs.5 The first paragraph

alleged two prior sequential felonies. If proven, the defendant would be “punished for a second

degree felony” under § 12.42(a)(2).6 The second paragraph alleged two additional prior sequential

felonies which, if proven, would require that he be punished as a habitual offender under § 12.42(d).7

In effect, the State tried to turn the non-aggravated state jail felony into a second-degree felony so

that it could then be enhanced by other felonies, and Webb could be punished as a habitual offender.

But by its own terms, § 12.42(d) does not apply to “a state jail felony punishable under

Section 12.35(a).”8 The State in Webb contended that once a defendant’s conviction was enhanced

3
Id.
4
Id. at 809.
5
Id. at 810, 811 (quoting § 12.42(d) (“If it is shown on the trial of a felony offense other than
a state jail felony punishable under Section 12.35(a) that the defendant has previously been finally
convicted of two felony offenses, and the second previous felony conviction is for an offense that
occurred subsequent to the first previous conviction having become final, on conviction he shall be
punished by imprisonment in the institutional division of the Texas Department of Criminal Justice
for life, or for any term of not more than 99 years or less than 25 years.”)).
6
Id. at 810 (quoting § 12.42(a)(2) (“If it is shown on the trial of a state jail felony punishable
under Section 12.35(a) that the defendant has previously been finally convicted of two felonies, and
the second previous felony conviction is for an offense that occurred subsequent to the first previous
conviction having become final, on conviction the defendant shall be punished for a second-degree
felony.”)).
7
Id.
8
Id. at 810 (“If it is shown on the trial of a felony offense other than a state jail felony
punishable under Section 12.35(a) . . .”) (emphasis added).
DAVIS CONCURRENCE — 3

under 12.42(a)(2), the offense was no longer “punishable under § 12.35(a),” allowing the conviction

to be further enhanced under § 12.42(d).9 We disagreed.10 We said that the State’s construction

failed to differentiate between an enhanced offense and enhanced punishment.11 We held that,

regardless of the 12.42(a)(2) enhancement, the defendant was tried for a state jail felony punishable

under § 12.35(a).12 The fact that his punishment, as opposed to the offense itself, was then subject

to enhancement did not change that fact.13 That being so, § 12.42(d) was not applicable.14

In 2011, after Webb was issued but before Applicant’sprimary offenses were committed, the

legislature added other language to § 12.42(d) saying that a state jail felony punishable under Section

12.35(a) could not be used to enhance punishment under that statute:15

Except as provided by Subsection (c)(2) or (c)(4), if it is shown on the trial of a
felony offense other than a state jail felony punishable under Section 12.35(a) that the
defendant has previously been finally convicted of two felony offenses...the
defendant shall be punished by imprisonment in the Texas Department of Criminal
Justice for life, or for any term of not more than 99 years or less than 25 years. A
previous conviction for a state jail felony punishable under Section 12.35(a) may not
be used for enhancement purposes under this subsection.16

9
Id. at 811.
10
Id.
11
Id.
12
Id.
13
Id.
14
Id.
15
Acts 2011, 82nd Leg., ch. 834 (H.B. 3384), § 4. The amendment applies only to offenses
committed on or after the effective date of the Act. Id. § 7. The effective date of the Act was
September 1, 2011, id. § 8, and the offenses in Applicant’s two cases before us were committed on
November 20, 2011 (-02 application) and December 2, 2011 (the -03 application).
16
§ 12.42(d) (2011) (emphasis added).
DAVIS CONCURRENCE — 4

So, under the new language, what Webb held with respect to the primary offense now applies

also to enhancing priors. Presumably, the legislature was aware of Webb when it amended §

12.42(d).17 And Webb has been relied upon by this Court in construing two diverse statutes outside

the Penal Code.18 It is logical to think that Webb would apply to the identical language added in the

same statutory subsection that Webb construed. State jail felonies punishable under § 12.35(a) can

neither be enhanced nor used to enhance under § 12.42(d), regardless of whether they have been

enhanced under a different subsection of § 12.42.

In Samaripas v. State, we noted this 2011 amendment to § 12.42(d) and stated, in dictum,

“Had [the defendant] committed the current offense after this amendment, it would not have been

proper for his prior state-jail felony [that had been enhanced under § 12.42(a)(2)] to be used for

enhancement.”19 A citation to Webb might have been helpful, but it was dictum, so perhaps the

Court simply did not want to spend much time on it. Nevertheless, Webb existed at the time and

fully supports the Samaripas dictum.

I join the Court’s opinion.

Delivered: February 1, 2023
Publish

17
See Scott v. State, 55 S.W.3d 593, 596 (Tex. Crim. App. 2001) (“We presume the
Legislature was aware of this caselaw in drafting the provision now before us.”).
18
See Ex parte Reinke, 370 S.W.3d 387, 389 (Tex. Crim. App. 2012) (provision imposing
“maximum term” limitation to commitment pursuant to a finding of incompetency); Ford v. State,
334 S.W.3d 230 (Tex. Crim. App. 2011) (sex-offender-registration enhancement provision).
19
454 S.W.3d 1, 8 n.5 (Tex. Crim. App. 2014) (bracketed material added to explain context).