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PD-0734-17
COURT OF CRIMINAL APPEALS
AUSTIN, TEXAS
Transmitted 10/6/2017 1:38 PM
Accepted 10/9/2017 10:00 AM
DEANA WILLIAMSON
NO. PD-‐0734-‐17 CLERK

IN THE FILED
COURT OF CRIMINAL APPEALS
10/9/2017
DEANA WILLIAMSON, CLERK
COURT OF CRIMINAL APPEALS

OF TEXAS
AUSTIN, TEXAS

EX PARTE RUSSELL BOYD RAE,
APPELLANT

V.

THE STATE OF TEXAS,
APPELLEE

BRIEF FOR APPELLANT
___________________________________________
NO. 06-‐17-‐00063-‐CR
COURT OF APPEALS
FOR THE SIXTH DISTRICT OF TEXAS
AT TEXARKANA
On appeal from Cause Number F14-‐689-‐A
In the 276TH District Court of Marion County, Texas
Honorable Robert Rolston, Judge Presiding

Hough-‐Lewis (“Lew”) Dunn
P.O. Box 2226
Longview, TX 75606
Tel. 903-‐757-‐6711
Fax 903-‐757-‐6712
Email: dunn@texramp.net
Texas State Bar No. 06244600
Attorney for Appellant
IDENTITY OF PARTIES AND COUNSEL

In compliance with Rule 68.4, TEX. R. APP. PROC., following are the identities
of the trial court judge, all parties to the judgment appealed from, and the
names and addresses of all trial and appellate counsel:

Parties

Russell Boyd Rae, Appellant

The State of Texas, Appellee

Trial Court Judge

Hon. Robert Rolston
Presiding Judge, 276th District Court
Marion County, Texas

Trial and Appellate Counsel

William K. Gleason, Attorney at Law
P.O. Box 888
Jefferson, TX 75657
Counsel for Appellant at trial

James R. (“Rick”) Hagan, Attorney at Law
P. O. Box 3347
Longview, TX 75606
Counsel for Appellant in Probation Revocation and Habeas at Trial Court

Angela Smoak
County & District Attorney of Marion County
102 West Austin, Room 201
Jefferson, TX 75657
Trial Counsel for the State of Texas, Appellee

ii
IDENTITY OF JUDGE, PARTIES, AND COUNSEL (CONT’D)

Hough-‐Lewis (“Lew”) Dunn
Attorney at Law
P.O. Box 2226
Longview, TX75606
Counsel for Appellant on Appeal

Ricky Shelton
Assistant County Attorney
102 West Austin, Room 201
Jefferson, TX 75657
Counsel for State on Appeal

Stacey M. Soule
State Prosecuting Attorney
P.O. Box 13046
Austin, TX 78711-‐3046

iii
TABLE OF CONTENTS

PAGE

IDENTITY OF PARTIES AND COUNSEL ………………………………………… ii

TABLE OF CONTENTS ……………………………………………………………….. iv

INDEX OF AUTHORITIES ……………………………………………………………. vi

STATEMENT OF THE CASE ………………………………………………………… viii

STATEMENT REGARDING ORAL ARGUMENT ………………………………. viii

SOLE ISSUE PRESENTED …………………………………………………………….. ix

STATEMENT OF FACTS …..……………………………………………………………. 1

Guilty Plea ………………………………………………........................... 1

State’s Petition to Revoke Probated Judgment ……………….. 2

Hearing on Application for Writ of Habeas Corpus and …… 2
Motion to Quash

Appeal ……………………………………………………………………………. 3

SUMMARY OF THE ARGUMENT …………………………………………………. 4

ARGUMENT ……………………………………………………………………………… 5

iv

PAGE

SOLE ISSUE, RESTATED: …………………………………………………………. 5

DID THE COURT OF APPEALS ERR IN FINDING THAT THE
PRIOR CONVICTION FOR OPERATING A WATERCRAFT
WHILE INTOXICATED WAS A FINAL CONVICTION?

Part I. The Texas Parks & Wildlife Code is Different………… 5

Part II. Analysis of the Differences Between ……………………… 8
Texas Parks & Wildlife and Texas Penal Code

Part III. The Court of Appeals Did Not Grasp the Distinction 10

Part IV. Application of Law of the Case or Stare Decisis 11

Part V. Conclusion …………………………………………………………… 13

PRAYER FOR RELIEF ………………………………………………………………….. 14

CERTIFICATE OF SERVICE …………………………………………………………….. 15

CERTIFICATE OF COMPLIANCE ……………………………………………………. 16

APPENDICES
APPENDIX A: Information and Judgment in Cause No. 6513

APPENDIX B: TEX. PARKS & WILD. CODE §31.097

APPENDIX C: TEX. PARKS & WILD. CODE §31.097
as amended, effective 9-‐1-‐91

APPENDIX D: TEX. PARKS & WILD. CODE §31.097
Repealing Legislation, 1993

v
INDEX OF AUTHORITIES

CASES PAGE

Ex parte Langley, 833 S.W.2d 141 (Tex. Crim. App. 1992) …………. 10

Ex parte Murchison, 560 S.W.2d 654 (Tex. Crim. App. 1978) …….. 6, 9

Ex parte Russell Boyd Rae, No. 74,840 ………………………………… 11, 12, 13
(Tex. Crim. App. 2003)

Ex parte Russell Boyd Rae, 2017 Tex. App. LEXIS 5325 ……………… 3, 10
(Tex. App. – Texarkana, June 13, 2017)

Ex parte Serrato, 3 S.W.3d 41 (Tex. Crim. App. 1999) ……………….. 7

Nixon v. State, 153 S.W.3d 550 ………………………………………………… 10
(Tex. App. – Amarillo 2004, pet. ref’d)

Rizo v. State, 963 S.W.2d 137 (Tex. App. – Eastland 1997, no pet.) 11

State v. Swearingen, 478 S.W.3d 718 (Tex. Crim. App. 2015) …….. 13

Swearingen v. State, 424 S.W.3d 32 (Tex. Crim. App. 2014) ……….. 13

STATUTES AND RULES

ACTS OF TEXAS LEGISLATURE

Chapter 900, §1.18(b), 1993 ………………………………………….. 9, 11

TEX. CODE CRIM. PROC.

11.072 ………………………………………………………....................... 2

vi
PAGE

TEX. PENAL CODE

§49.06 …………………………………………………………………………….. 9

§49.09(a) ……………………………………………………………………….. 6

§49.09(b)(2) …………………………………………………………………. 4, 7, 10

§49.09(c)(3)(C) …………………………………………………………………… 4, 8

§49.09(d) ……………………………………………………………………….. 10

TEX. PARKS & WILD. CODE

§31.097 ………………………………………………………………………….. 5, 8, 9

§31.097(b) ……………………………………………………………………… 4, 5

§31.097(c) ………………………………………………………………………. 5

VERNON’S ANNOTATED CIVIL STATUTES

Art. 6701l-‐1 ……………………………………………………………………. 7, 10

vii
STATEMENT OF THE CASE

Appellant pleaded guilty to DWI, third offense and was sentenced to

ten (10) years, probated for ten years. The State moved to revoke, and

Appellant filed an Application for Writ of Habeas Corpus, which, after

hearing, was denied. That Application contested the use of a prior

conviction to enhance the DWI to a felony. Appeal was made to the Sixth

Court of Appeals in Texarkana, which affirmed the trial court in a

Memorandum Opinion on or about June 13, 2017. A Petition for

Discretionary Review was then filed on July 12, 2017. This Court granted

discretionary review on September 13, 2017.

STATEMENT REGARDING ORAL ARGUMENT

This Court has stated that the case will be submitted on briefs without

oral argument.

viii

SOLE ISSUE PRESENTED

DID THE COURT OF APPEALS ERR IN FINDING THAT THE PRIOR CONVICTION

FOR OPERATING A WATERCRAFT WHILE INTOXICATED WAS A FINAL

CONVICTION?

ix
NO. PD-‐0734-‐17

IN THE

COURT OF CRIMINAL APPEALS

OF TEXAS
AUSTIN, TEXAS

EX PARTE RUSSELL BOYD RAE,
APPELLANT

V.

THE STATE OF TEXAS,
APPELLEE

BRIEF FOR APPELLANT
_____________________________________________________________

TO THE HONORABLE JUDGES OF THE COURT OF CRIMINAL APPEALS:

COMES NOW RUSSELL BOYD RAE, and files this, his Brief in support of

review of his conviction in the trial court for felony DWI and subsequent

affirmance by the Sixth Court of Appeals, and would show:

STATEMENT OF FACTS

Guilty Plea

Appellant was indicted for felony DWI, with two prior intoxication

offenses alleged (CR 6). At his guilty plea (August 3, 2016) Appellant was

1
admonished by the trial court (1 RR 4-‐7), then entered his guilty plea (1 RR

7) to the charge of DWI, pleading guilty or “true” to the enhancement

paragraphs (1 RR 8). The trial court accepted the pleas as voluntarily made,

and asked the State for its evidence, consisting of a signed stipulation of

evidence (1 RR 9). The State recommended ten years probated for ten

years, fine of $3,500, and other conditions of probation, including 10 days

in county jail (1 RR 9). Appellant agreed (1 RR 9). Trial court followed the

agreement of the parties and entered judgment accordingly (1 RR 10; CR 8).

State’s Petition to Revoke Probated Judgment

On or about November 10, 2016, there was filed the “State’s Petition

to Revoke Probated Judgment” (CR 11). Capias issued; Appellant was

arrested and jailed. Thereafter, on his behalf a “Defendant’s Motion to

Quash Application for Revocation of Probation” was filed on December 27,

2016, with several exhibits attached (CR 13).

Hearing on Application for Writ of Habeas Corpus and Motion to Quash

On December 27, 2017, Appellant filed his Application for Writ of

Habeas Corpus, pursuant to Art. 11.072, TEX. CODE CRIM. PROC. (CR 30).

The State filed the “State’s Response to Applicant’s Application for Writ of

Habeas Corpus and Motion to Quash” (CR 50).

2
At the hearing on February 23, 2017, Counsel for Appellant offered

arguments and authorities on why the second conviction used for

enhancement (boating while intoxicated, Cause No. 6513 from Marion

County in 1993) was not a proper case to use for enhancement, requesting

the trial court to declare the judgment in the case at bar void because of

that infirmity (2 RR 3, 5). State’s counsel countered by arguing that there is

a distinction to be made between using a prior DWI for purposes of

jurisdictional enhancement as opposed to using it for purposes of

punishment (2 RR 6), urging the trial court to review her arguments in her

“Response” (CR 50). During the hearing both parties agreed that the

exhibits to their respective pleadings be admitted into evidence as exhibits,

and the trial court approved (2 RR 6,7).

Thereafter, the trial court entered its “Order Denying Application for

Writ of Habeas Corpus with Findings of Fact and Conclusions of Law” (CR

74).

Appeal

The Court of Appeals upheld the denial of habeas relief in Ex parte

Russell Boyd Rae, 2017 Tex. App. LEXIS 5325 (Tex. App. – Texarkana, June

13, 2017).

3
SUMMARY OF THE ARGUMENT

The Court of Appeals failed to grasp the distinction between, on the

one hand, the old law that pertained to “boating while intoxicated” as

enacted in 1989 in TEXAS PARKS & WILDLIFE CODE §31.097(b), and, on the

other hand, later law under the Texas Penal Code describing intoxication-‐

related offenses and use of prior convictions. The law governing the use of

prior conviction for “boating while intoxicated” on June 22, 1992 – the date

of Appellant’s prior offense -‐-‐ provided that, if one successfully worked

community supervision and was not revoked, then that “conviction” was

never legally a “final conviction” for purposes of enhancement. TEX. PENAL

CODE §49.09(c)(3)(C) and the repealing legislation in 1994 stated that an

offense committed before its effective date, was covered by the law in

effect when the offense was committed, and that the former law was

continued in effect for that purpose. Therefore, the later law found in TEX.

PENAL CODE §49.09(b)(2), concerning what priors could be used to

enhance a DWI to a felony, did not apply to Appellant. The same issue in

2003 was resolved in favor of Appellant by this Court; the law of the case or

stare decisis should yield the same outcome.

4
ARGUMENT

SOLE ISSUE, RESTATED

DID THE COURT OF APPEALS ERR IN FINDING THAT THE
PRIOR CONVICTION FOR OPERATING A WATERCRAFT
WHILE INTOXICATED WAS A FINAL CONVICTION?

To elevate the DWI of June 21, 2015, to a third degree felony, the

State relied upon two prior intoxication offenses: a conviction for DWI on

January 28, 1987, in Cause No. 87-‐16 from Cass County, and a conviction

for operating a boat while intoxicated on July 6, 1993, in Cause No. 6513

from Marion County. (See, Indictment, CR 6). That offense was committed

on June 22, 1992 (See, Information, CR 17).

Part I. The Texas Parks & Wildlife Code is Different

In 1992 the offense of “boating while intoxicated” was found in TEX.

PARKS & WILD. CODE, §31.097, in particular §31.097(b), TEX. PARKS &

WILD. CODE, which stated, in relevant part: “No person may operate a

moving vessel…while the person is intoxicated…” Punishment was also

found in the same code, in §31.097(c), TEX. PARKS & WILD. CODE, giving a

range of punishment to include a fine, jail, or a combination of both;

subsequent subsections allowed for more severe punishment for repeat

offenders. It was this law under which the State brought its complaint and

5
information in 1993 and for which Appellant was convicted in Cause No.

6513 in Marion County.

Exhibit A of Appellant’s Application in Habeas Corpus (CR 36 ff) offers

a copy of the “Information,” showing Applicant’s offense was alleged to

have occurred on June 22, 1992. The Judgment and Order Granting

Probation was entered on July 6, 1993. (Both the Information and

Judgment are attached to this Brief as “Appendix A.”) Though at one point

the State moved to revoke that probation, the motion was eventually

dismissed (CR 41-‐42). Thus, Appellant served out his probation without

ever being revoked.

Appellant contends that the prior boating while intoxicated case

could not be used to enhance his current offense to a third degree felony.1

See, Ex parte Murchison, 560 S.W.2d 654, 656 (Tex. Crim. App. 1978).

There, in an appeal of a conviction with assault with intent to commit rape,

enhanced by two prior felony convictions to yield a life sentence, the Court

of Criminal Appeals held that, absent an order revoking probation, a

conviction is not “final” and may not be used for enhancement purposes; to

do otherwise was a violation of due process of law. Similarly, because of its

1 In that event, the highest level of offense in this matter would be a Class A

misdemeanor. Appellant does not contest the use of the other misdemeanor conviction
in Cause No. 87-‐16 from Cass County. See, TEX. PENAL CODE, §49.09(a).

6
own particular statute, the operation of a moving vessel while intoxicated

or “boating while intoxicated” – when probated and not revoked – does

NOT operate as an enhancing offense.

Because the 1992 case arose under a different statute, it differs from

other intoxication offenses that involve a probated sentence linked to the

operation of a motor vehicle. In the event of the latter, the case of Ex parte

Serrato, 3 S.W.3d 41, 43 (Tex. Crim. App. 1999) held that “a probated DWI

which occurred after January 1, 1984, but prior to September 1, 1994, may

properly be used to enhance a sentence.” That was the case, because the

DWI statute then in effect, Article 6701l-‐1, V.A.C.S., specifically stated: “For

purposes of this article, a conviction for an offense that occurs on or after

January 1, 1984, is a final conviction, whether or not the sentence for the

conviction is probated.” Ex parte Serrato, at 43.

It might seem at first glance as if the prior watercraft/boating DWI

would be available as an enhancement. TEX. PENAL CODE §49.09(b)(2)

states that a DWI may be enhanced by any combination of prior

intoxication convictions: driving, boating, or flying, and two of them will

7
serve to enhance to a third degree felony. However, TEX. PENAL CODE

§49.09(c)(3), “Operating a watercraft while intoxicated,” defines the

offense, in relevant part:

“Offense of operating a watercraft while intoxicated means:

….

law existed before September 1, 1994.”

(emphasis supplied)

That latter statute, TEX. PARKS & WILD. CODE §31.097, was the law

in effect when Appellant was charged and received his probated sentence

on July 6, 1993, the offense occurring on June 22, 1992. Consequently,

Subsection (C) of TEX. PENAL CODE §49.09(c)(3) applies in the case at bar.

Part II. Analysis of the Differences Between Texas Parks & Wildlife
and Texas Penal Code

That being the case, the next question is this:

Did Section TEX. PARKS & WILD. CODE §31.097 specify whether or

not a probated conviction under that statute was final?

To answer that, one must review its legislative history. The entire

statute, TEX. PARKS & WILD. CODE §31.097, as enacted into law by the 71st

Legislature (effective, July 1, 1989) is attached as “Appendix B.” The law

8
was amended by the 72nd Legislature, effective September 1, 1991, as seen

in attached “Appendix C.” Finally, the law was repealed by the 73rd

Legislature, providing that “boating while intoxicated” offenses occurring

on or after September 1, 1994, were to be prosecuted under §49.06, TEX.

PENAL CODE, attached as “Appendix D.” So the answer to the question

above is this: Neither version of that statute, seen in Appendix B or C,

stated that a probated sentence under TEX. PARKS & WILD. CODE §31.097

was available for enhancement. In fact, Chapter 900, §1.18(b) of the 1993

repealing legislation stated as follows, in relevant part:

…

“(b) An offense committed before the effective date of this article is

covered by the law in effect when the offense was committed, and the

former law is continued in effect for that purpose.”

(Appendix D).

Therefore, the law in effect on June 22, 1992, applied to Appellant’s

“boating while intoxicated” offense, not some law enacted at a later date.

That means the pronouncement in Ex parte Murchison controls: only a

conviction in a revoked probation -‐-‐ only that sort of “final” conviction –

can be used to enhance, not something less. Absent a specific statutory

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directive such as found in Art. 6701l-‐1, V.A.C.S., or in TEX. PENAL CODE

§49.09(d), a probated sentence from 1993 for boating while intoxicated is

NOT a final conviction for purposes of enhancement, unless it is revoked

and a final conviction entered. A successfully served probation – which

happened in Cause No. 6513 – is not available for enhancement. See also,

Ex parte Langley, 833 S.W.2d 141, 143 (Tex. Crim. App. 1992). There the

defendant was convicted and given probation, then revoked and

sentenced, but then given shock probation, setting the case back to the

status of probation, which was unrevoked. It was error to use that case for

enhancement. See also, Nixon v. State, 153 S.W.3d 550, 551 (Tex. App. –

Amarillo 2004, pet. ref’d).

Part III. The Court of Appeals Did Not Grasp the Distinction

The Court of Appeals failed to grasp the distinction just made.

Instead, it relied upon TEX. PENAL CODE §49.09(b)(2) which pertains to

enhancing the DWI to a felony of the third degree if it is shown that the

person has been convicted two times of any intoxication offense. See, Ex

parte Rae, 2017 Tex. App. LEXIS 5325, *3 and n. 4, citing to TEX. REV. CIV.

STAT. art. 6701l-‐1. Furthermore, the Court of Appeals cited to

10
Rizo v. State, 963 S.W.2d 137, 139 (Tex. App. – Eastland 1997, no pet.) to

support its reasoning (id.).

However, Rizo is inapposite since it involved a conviction under an

older driving while intoxicated statute, not a conviction for the operation

of a watercraft while intoxicated under the TEX. PARKS & WILD. CODE. The

Court of Appeals ignored the distinction about how the law concerning a

conviction under the TEXAS PARKS & WILD. CODE applied to the prior

Marion County case. The point is that, as such, that conviction was never

final. It was an offense “covered by the law in effect when the offense was

committed, and the former law is continued in effect for that purpose.”

(See, Chapter 900, §1.18(b), Appendix D, post).

Part IV. Application of Law of the Case or Stare Decisis

This Court so held in 2003 in Cause No. 74,840, Ex parte Russell Boyd

Rae (per curiam decision, December 3, 2003). In that case precisely the

same issue arose over using the same Marion County operation of

watercraft case, Cause No. 6513, to enhance a DWI in Gregg County to a

felony in Cause No. 28,841-‐B. Part of the reasoning behind this Court’s

granting the writ was ineffectiveness of counsel “for failing to investigate

one of the prior convictions used to elevate this offense to a felony.” The

11
trial court found that the prior offense (i.e., Cause No. 6513) was not a final

conviction available for enhancement purposes and that there was

ineffectiveness of counsel in failing to investigate that prior conviction; the

trial court recommended granting relief. This Court agreed with that

recommendation and granted habeas corpus relief.

Although no ineffectiveness of counsel issue was raised in the

current habeas application, the underlying determining consideration in

Cause No. 74,840, Ex parte Russell Boyd Rae was the use of a prior

conviction that was not final to enhance a misdemeanor DWI offense to a

felony; this Court agreed with the trial court in 2003 that the “boating while

intoxicated” conviction was not a final conviction; otherwise, there would

have been no predicate for finding ineffectiveness. It was the same prior

case that was used here: Cause No. 6513 from Marion County.

The principle of the “law of the case” or stare decisis applies to the

instant case. This Court has written that “ ‘an appellate court’s resolution of

questions of law in a previous appeal are binding in subsequent appeals

concerning the same issue.’ Therefore, ’when the facts and legal issues are

virtually identical, they should be controlled by an appellate court’s

previous resolution.’ Such a rule promotes ‘judicial consistency and

12
efficiency.’ “ State v. Swearingen, 478 S.W.3d 718, 720 (Tex. Crim. App.

2015) (citing to Swearingen v. State, 424 S.W.3d 32, 36 (Tex. Crim. App.

2014).

What is that same issue? It is this: can the prior “conviction” of

Appellant under the Texas Parks & Wildlife Code in Cause No. 6513 be used

to enhance a subsequent DWI to a felony? The answer in 2003 was “no”

and should still be “no” under the law of the case or stare decisis. It is the

same defendant and the same prior and now an attempt – again – to use it

to enhance.

Part V. Conclusion

Appellant would urge this Court in the case at bar to follow its own

precedent, and apply the same reasoning it applied in reviewing that prior

habeas application in Cause No. 74,840, Ex parte Russell Boyd Rae from

2003. Appellant contends that, in light of the foregoing, it is clear that the

Court of Appeals erred in failing to find that the prior conviction in Cause

No. 6513 was not a final conviction and could not be used for

enhancement.

Appellant urges reversal of the Judgment of the Court of Appeal,

finding that the prior conviction for boating while intoxicated in Cause No.

13
6513 from Marion County was never a final conviction for the purposes of

enhancement, and remanding to the lower courts for appropriate relief,

including a re-‐sentencing as a Class A misdemeanor, or, alternatively, a

reformation of the sentence to show a conviction for a Class A

Misdemeanor, and remand for a new hearing on punishment.

PRAYER FOR RELIEF

WHEREFORE, PREMISES CONSIDERED, Appellant respectfully prays

that this Court, in consideration of the foregoing arguments and

authorities, issue an opinion reversing the Court of Appeals’ Judgment,

remanding this cause to the trial court, vacating and setting aside the

conviction as a felony, and, instead, reflecting a judgment of conviction as

a Class A misdemeanor, and remand for a hearing on sentencing.

Respectfully submitted,

Hough-‐Lewis Dunn
Hough-‐Lewis (“Lew”) Dunn
P.O. Box 2226
Longview, TX 75606
Tel. 903-‐757-‐6711
Fax 903-‐757-‐6712
Email: dunn@texramp.net
Texas State Bar No. 06244600
Attorney for Appellant

14
CERTIFICATE OF SERVICE

I hereby certify, by affixing my signature above, that a true and

correct copy of the foregoing Brief for Appellant, was sent to the following

person by certified mail, return receipt requested, on the 6th day of

October, 2017, to Ms. Stacy M. Soule, State Prosecuting Attorney, at P.O.

Box 13046, Austin, TX 78711-‐3046 and also sent by electronic means, and

also a true and correct copy was sent by first class mail to Ms. Angela

Smoak, Marion County & District Attorney, 102 W. Austin Street, Jefferson,

TX 75657 and also sent by electronic means on the same date.

Hough-‐Lewis Dunn
Hough-‐Lewis Dunn

15
CERTIFICATE OF COMPLIANCE

I certify that the foregoing document complies with Rule 9, TEX.

R. APP. PROC., regarding length of documents, in that, exclusive of caption,

identity of parties and counsel, statement regarding oral argument, table of

contents, index of authorities, statement of the case, issues presented,

statement of jurisdiction, statement of procedural history, signature,

proof of service, certification, certificate of compliance, and appendix, it

consists of 2,703 words.

Hough-‐Lewis Dunn
Hough-‐Lewis Dunn

Rae, Ex Parte Russell Boyd

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