IN THE COURT OF CRIMINAL APPEALS

OF TEXAS




NO. 1417-99

MARVIN CHARLES PETTIGREW, Appellant

v.



THE STATE OF TEXAS




ON STATE'S PETITION FOR DISCRETIONARY REVIEW

FROM THE TWELFTH COURT OF APPEALS

SMITH COUNTY


Price, J., filed a dissenting opinion, in which Meyers, Johnson, and Keasler, J.J., joined.



Article 42.08 clearly says that only a second or subsequent conviction can be stacked on a prior conviction. The majority's opinion effectively writes this temporal requirement out of the article by holding that a conviction can occur either when a sentence is imposed or when it is suspended.

The majority uses the "sentenced imposed or suspended" language to broaden the trial court's discretion to stack beyond the letter of the statute. The statute was amended to allow the stacking of terms of probation, which had not been permitted under the language as it existed to that point. See Green v. State, 706 S.W.2d 653, 656 (Tex. Crim. App. 1986); House Committee on Criminal Jurisprudence, Bill Analysis, Tex. H.B. 554, 70th Leg., R.S. (1987) ("Amends Article 42.08, Code of Criminal Procedure to allow a judge to make sentences of probation as well as sentences of confinement either cumulative or concurrent"). But nothing in the statute permits the stacking of a first or prior conviction on a second or subsequent conviction. The majority's interpretation of article 42.08 focuses on the sentence's imposition or suspension and not on the timing of the conviction, which is the focus of the article. (1)

The majority believes that our prior caselaw supports this construction and that the legislature has not altered the article in a meaningful way since those cases. I disagree. Although we held in Spencer v. State, 503 S.W.2d 557 (Tex. Crim. App. 1974); Gordon v. State, 575 S.W.2d 529 (Tex. Crim. App. 1979, en banc) (op. on reh'g); and McCullar v. State 676 S.W.2d 587 (Tex. Crim. App. 1984), that stacking a prior revoked community supervision sentence on a subsequent prison sentence is permissible, we did not reach the decisions in those case by construing the language of article 42.08. (2)

The majority notes that the holding in Spencer and other cases is consistent with the holdings of other cases in which we have held that the word conviction in a statute means final conviction and sometimes probation is not a final conviction. The cases that the majority cites for this proposition occur in the context of enhancements. The majority then assumes, without analysis or authority, that the same principle must apply in the context of cumulative sentencing. (3)

I am not convinced by the majority's analysis or its interpretation of our caselaw. I would affirm the judgment of the Court of Appeals, and therefore, I respectfully dissent.

Delivered: June 20, 2001.

Publish.

1. Article 42.08(a) states:



(a) When the same defendant has been convicted in two or more cases, judgment and sentence shall be pronounced in each case in the same manner as if there had been but one conviction. Except as provided by Sections (b) and (c) of this article, in the discretion of the court, the judgment in the second and subsequent convictions may either be that the sentence imposed or suspended shall begin when the judgment and the sentence imposed or suspended in the preceding conviction has ceased to operate, or that the sentence imposed or suspended shall run concurrently with the other case or cases, and sentence and execution shall be accordingly . . ..



(emphasis added).

2. The case upon which those cases ultimately rely-for the proposition that stacking has been approved for eighty-two years-was decided before the Texas Constitution and the Code of Criminal Procedure authorized community supervision. Compare Gordon, 575 S.W.2d at 535 (citing Ex parte Crawford, 36 Tex. Crim. 180, 36 S.W. 92 (1896)) ("It makes no difference that Article 42.12, V.A.C.C.P., does not provide for the cumulation of sentences because article 42.08, V.A.C.C.P., provides for their cumulation. The cumulation of sentences has been approved by this Court for eighty-two years."), with Busby v. State, 984 S.W.2d 627, 628-29 & n.6 (Tex. Crim. App. 1998) (citing Act of February 11, 1913, 33d Leg., R.S., ch. 7, 1913 Tex. Gen. Laws 8) (explaining that community supervision was not authorized in any form until 1913).

3. Arguably, there is a good reason for the word conviction to mean a final conviction in the context of enhancements. When the jury considers punishment for an offense that has been enhanced with prior convictions, it considers a different punishment range than if there were no enhancements by prior conviction. See, e.g., Penal Code 12.42. If the prior conviction is later reversed on appeal, then the appellant would be entitled to a new punishment hearing for the jury to consider the proper punishment range in the subsequent case. It makes sense that a conviction be final for purposes of enhancement.