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


Johnson, J., dissenting.



D I S S E N T I N G  O P I N I O N



The majority states that, under the interpretation used by the court of appeals, "one might conclude that a 'conviction' occurs even when a sentence is suspended . . . ." Ante, at ___ (slip op. at 3). It then goes on to say its proposed "alternative interpretation" is more consistent with our caselaw. Id. Even if that were true, the "alternative interpretation" is inconsistent with the language of the Code of Criminal Procedure.

Article 42.12, 20(a), titled "Reduction or Termination of Community Supervision," says, in part, that if a defendant satisfactorily completes a term of community supervision, the trial court shall discharge the defendant from supervision, and may dismiss the charges against the defendant, "who shall thereafter be released from all penalties and disabilities resulting from the offense or crime of which he has been convicted or to which he has pleaded guilty . . . ." (Emphasis added.) How are we to interpret these words in the statute except as an expression of the intent of the Legislature that a sentence imposed and then suspended is no less a "conviction" than a sentence imposed? It seems clear to me that a defendant acquires a conviction when sentence is pronounced. A defendant who is granted community supervision retains the ability to keep that conviction from becoming "final," but has a conviction, nonetheless.

To read into art. 42.08 the discretion for a trial court to decide when that particular defendant acquired a conviction is ludicrous. This would allow a trial court to determine, willy-nilly, when the conviction occurred. That goes against the very heart of our judicial system, equal justice under the rule of law. It is not difficult to imagine how such a system could be abused.

There is no dispute that the trial court is authorized to stack the two sentences assessed; the only issue is what may be stacked on what. The real issue here is whether we are going to require that the procedures established by the Legislature and set out in the Code of Criminal Procedure be followed. In the case at bar, the final result will probably be the same, regardless of the decision here; appellant will have an aggregated sentence of eighty-five years. While the result in this case may be the same, that will not be true in all cases. Our job as judges is to maintain the process, not the result. The majority interpretation of the meaning of "conviction" maintains the result, but violates the process.

If we were to choose to follow the procedures mandated by the statute, we would remand the case to the court of appeals with instructions to remand to the trial court for proper sentencing: stacking the subsequent sentence, the murder, onto the first sentence, the aggravated sexual assault. Because the majority does not do so, I respectfully dissent.

Johnson, J.







Date delivered: June 20, 2001

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