Summary
In Hill, this Court considered a situation where a defendant's sentencing enhancements were proper as of the time of trial, but one of the enhancing convictions was later vacated on habeas review because of an involuntary plea.
Summary of this case from Ex parte DotsonOpinion
NOS. WR-83,074-04 WR-83,074-05
10-20-2021
EX PARTE Michael Charles HILL, Applicant
Robert Udashen, Dallas, for Applicant.
Robert Udashen, Dallas, for Applicant.
OPINION
Hervey, J., delivered the opinion of the Court in which Richardson, Newell, Keel, Walker, and McClure, JJ., joined. Applicant, Michael Charles Hill, was convicted of second-degree felony sexual assault of a child and indecency with a child by contact. Based on an enhancement, he was automatically sentenced to life imprisonment for the sexual-assault offense, and his punishment range for the indecency offense was enhanced to that of a first-degree felony. The jury sentenced him to life imprisonment. This Court subsequently vacated Applicant's enhancing conviction on involuntary-plea grounds. Applicant now argues that his enhanced life sentences are illegal and that he should be resentenced. We filed and set his application for submission. The parties briefed the following issues,
(1) Whether a defendant's failure to object at the time of trial to the use of a prior enhancing conviction forfeits error, particularly in the context of sex offenses; TEX. CODE CRIM. PROC. Art. 1.14(b) ; TEX. PENAL CODE § 12.42(c)(2), (g) ; see Ex parte Rich, 194 S.W.3d 508 (Tex. Crim. App. 2006) ; Ex parte Patterson, 969 S.W.2d 16 (Tex. Crim. App. 1998, op. on reh'g) ;
(2) Whether vacating a prior enhancing conviction that was final at the time of the subsequent conviction and sentence affects the validity of the subsequent sentence, particularly in the context of sex offenses; Anderson v. State, 394 S.W.3d 531 (Tex. Crim. App. 2013) ;
(3) Whether the use of a prior enhancing conviction that does not increase the punishment range causes harm; see Ex parte Parrott, 396 S.W.3d 531 (Tex. Crim App. 2013) ; and
(4) Whether a claim concerning the use of a prior enhancing conviction, when that conviction is later vacated, is barred by the equitable doctrine of laches.
The habeas court recommends that we deny relief. We conclude that Applicant is entitled to be resentenced for aggravated sexual assault but not indecency with a child.
I. PROCEDURAL HISTORY
Applicant was convicted of sexual assault of a child and indecency with a child by contact (the primary offenses), both second-degree felonies. TEX. PENAL CODE § 22.011(a)(2). The punishment range for a second-degree felony is two to twenty years’ imprisonment. Id. § 12.33(a). The State, however, sought enhanced sentences based on a previous aggravated-sexual-assault conviction from 2000 in Dallas County (the enhancing conviction), which the jury found to be true. Id. § 22.021. The enhanced punishment for sexual assault of a child was fixed by law at life imprisonment. Id. § 12.42(c)(2). Applicant's punishment range for the indecency offense was elevated into the first-degree felony range, subjecting him to confinement for five to ninety-nine years or life. Id. § 12.42(b). The jury sentenced him to life imprisonment, and the judge stacked the sentences,
| Primary Offenses (2012) | ||
|---|---|---|
| Sexual Assault of a Child (2nd degree felony) | Automatic life imprisonment | |
| Indecency by Contact (2nd degree felony) | Life imprisonment | |
| Enhancing Offense (2000) | ||
| Aggravated Sexual Assault (2nd degree felony) |
Applicant appealed to the Sixth Court of Appeals, arguing that the evidence was legally insufficient and that the State failed to give proper notice of its intent to enhance his punishments with a prior felony conviction. The court overruled both points of error, and Applicant did not file a petition for discretionary review in either case. Because the facts pertaining to the offenses are not necessary to the resolution of this case, we do not discuss them.
The court of appeals issued an opinion in each case. Hill v. State , No. 06-12-00094-CR, 2013 WL 69239, at *1 (Tex. App.—Texarkana Jan. 8, 2013, no pet.) (mem. op., not designated for publication) (indecency with a child by contact); Hill v. State , No. 06-12-00095-CR, 2013 WL 69248, at *3 (Tex. App.—Texarkana Jan. 8, 2013, no pet.) (mem. op., not designated for publication) (sexual assault of a child).
II. LACHES
The purpose of the laches doctrine is "to consider whether an applicant has slept on his rights and, if he has, how that has affected the State, and whether, in light of the delay, it is fair and just to grant him relief." Ex parte Perez , 398 S.W.3d 206, 218–19 (Tex. Crim. App. 2013). If laches applies, we will not consider an applicant's claims and will deny relief. Ex parte Saenz , 491 S.W.3d 819, 826 (Tex. Crim. App. 2016). Laches does not apply when,
• an applicant's delay was not unreasonable because it was due to a justifiable excuse or excusable neglect;
• the State would not be materially prejudiced as a result of the delay; or
• the applicant is entitled to equitable relief for other compelling reasons, such as new evidence that shows he is actually innocent of the offense or, in some cases, that he is reasonably likely to prevail on the merits.
Perez , 398 S.W.3d at 218. When determining whether laches applies, we examine each case on its own facts, considering the totality of the circumstances. Id. at 216.
a. Challenging the Enhancing Conviction
According to postconviction counsel, he was hired about six months after Applicant's enhanced life sentences were affirmed on direct appeal, and he immediately began investigating the enhancing conviction. In September 2014, Applicant filed his initial habeas application. Postconviction counsel filed a "bare bones" application in which he sought and obtained access to the Dallas County District Attorney's work product. (Counsel claimed that the district attorney at the time required a court order before allowing defense counsel to examine the State's trial work product as part of a postconviction investigation.) According to counsel, he discovered evidence of a Brady violation and ineffective assistance of counsel, and he began collecting records to support those claims. He also asserts that he was finally able to locate the victim in November 2014 and that she signed an affidavit recanting her allegations. Counsel subsequently asked this Court to dismiss the application for further investigation. We dismissed the application in April 2015.
Applicant alleged in his application that,
Over the last few years, there has been an alarming number of cases in Dallas County where suppression of exculpatory evidence by prosecutors or law enforcement agents has been discovered. These cases predated the current District Attorney's administration. Based on this, there is a reasonable possibility that a review of the prosecutor's file will reveal exculpatory evidence not turned over to the defense. The exculpatory evidence found in the previous cases was (sic) in the prosecutors (sic) work-product so a review of the work-product is necessary.
We actually dismissed his habeas application because he had discharged his five-year sentence for the enhancement offense.
In December 2015, Applicant filed a second habeas application in which he argued that he was actually innocent based on the victim's recantation. Approximately six weeks after the application was filed, the Dallas County District Attorney's Office's Conviction Integrity Unit (Unit) contacted counsel and offered to review Applicant's case. Applicant agreed and asked this Court to dismiss his second application, which we did in June 2016.
In September 2016, Applicant filed a third habeas application, arguing (1) that he was actually innocent based on the postconviction recantation, (2) that he was entitled to a new trial because the State failed to disclose the victim's pretrial recantation, and (3) that his guilty plea was involuntary because he would not have pled guilty had the pretrial recantation been disclosed. In December 2016, we remanded the case for an evidentiary hearing, and while the case was on remand, the victim recanted her postconviction recantation from November 2014. Applicant subsequently filed an amended habeas application in which he abandoned the actual-innocence claim based on the postconviction recantation. He continued to advance, however, the Brady and involuntary-plea claims based on the suppressed pretrial recantation. He also added two additional claims: (1) an ineffective-assistance-of-counsel claim based on trial counsel's failure to obtain the medical records documenting the pretrial recantation and (2) another Brady allegation based on the State's failure to disclose that the victim lied to police on multiple occasions. Over one year after we remanded the case, the habeas court returned the record to this Court in March 2018. The habeas court recommended that we grant relief on Applicant's involuntary-plea claim in light of the Brady violations. We did so in May 2018 and set aside Applicant's enhancing conviction.
Applicant alleged that his
counsel failed to investigate [his] case by failing to obtain the complainant's available medical records, [Applicant] requested that counsel obtain the complainant's medical records. The medical records were available and contained exculpatory evidence regarding the complainant's recantation of her allegations against [Applicant]. Had [Applicant] been aware of the recantation he would not have entered a plea of guilty and instead would have insisted upon going to trial. Trial counsel's failure to request the medical records in this matter fell below an objective standard of reasonableness and [Applicant] was prejudiced by trial counsel's deficient performance.
In the amended application, Applicant cited the pretrial recantation and additionally alleged that,
[A] report from the Dallas Police Department indicates that the complainant lied to police about having washed the sheets after the incident and lied about the [Applicant]’s whereabouts during the initial report to law enforcement. Evidence regarding the complainant's credibility is exculpatory. The report was in the possession of the Dallas Police Department, the investigating agency and State's agent for purposes of Brady v. Maryland. Yet, the report was not disclosed to Applicant. Applicant would not have entered a guilty plea if he had known of the recantation and evidence of complainant's lies to law enforcement.
b. Challenging The Primary Offenses
In November 2018, postconviction counsel filed two writ applications, one for each conviction, arguing that his enhanced life sentences are illegal and that he received ineffective assistance of counsel because, among other things, trial counsel failed to investigate the validity of the enhancement conviction from 2000. In June 2019, we remanded the case again. In our order, we agreed that Applicant's failure to object at trial did not forfeit his illegal-sentence claims and that his enhanced life sentences are now known to be illegal, but we remanded the case one more time to determine whether Applicant's illegal sentences harmed him. Ex parte Hill , Nos. WR-83,074-04 & WR-83,074-05, 2019 WL 2607173, *1 (Tex. Crim. App. June 26, 2019) (per curiam) (not designated for publication) (citing Parrott , 396 S.W.3d at 533 ).
The habeas court found that Applicant's indecency-with-a-child sentence could still be enhanced into the first-degree felony punishment range using a prior second-degree felony theft conviction but that Applicant's sexual-assault-of-a-child sentence could no longer be enhanced to automatic life imprisonment. It could only be punished as a first-degree felony. After the record was returned to this Court, we filed and set Applicant's application for submission.
c. Analysis
The parties agree that Applicant has timely raised his illegal-sentence claims. The State argues, however, that we should nonetheless apply laches because of Applicant's years of delay in seeking to have his enhancement conviction set aside. Applicant responds that his delay in challenging that conviction is no longer the issue because this Court has already overturned that conviction without mentioning laches. The only issue now, Applicant contends, is whether his illegal-sentence claims were timely raised.
We agree with Applicant. While we have said that all equities of the case should be considered, the equities of this case weigh in favor of not applying laches to Applicant's illegal-sentence claims. Perez , 398 S.W.3d at 217. The appropriate time to apply laches because of Applicant's delay in challenging his enhancement conviction was before we reached the merits of his claims and set it aside, not now when Applicant is raising different claims less than six months after they became available challenging sentences that he has never challenged. Further, even if Applicant had unreasonably delayed seeking relief from his enhanced sentences, there is no record evidence to support that the State would be materially prejudiced as the result of Applicant's six-month delay. Id. Also, there is no evidence that memories have faded or evidence has been lost or is otherwise unavailable because of the passage of six months’ time. Id. at 216 (stating that diminished memories and diminished availability of State's evidence often occurs beyond five years after a conviction becomes final) (citing In re Steptoe , 132 S.W.3d 434, 437–39 (Tex. Crim. App. 2004) (per curiam) (Cochran, J., dissenting); McCray v. Florida , 699 So.2d 1366,1368 (Fla. 1997) ).
The State contends that it "will be left to argue [at resentencing] for a sentence between five years to ninety-nine years or life for a now thirteen year old offense and have only a theft conviction and a state jail conviction to present in punishment." It is true that Applicant's sexual-assault-of-a-child sentence cannot be enhanced to automatic life imprisonment based on his actual criminal history, but if that controlled the laches inquiry, laches would apply to all illegal-sentence claims no matter how short the delay in challenging the sentences if the applicant's actual criminal history did not support the enhanced punishment range. That reasoning subverts the proper scope of the laches inquiry, and it is at odds with Parrott , 396 S.W.3d at 536, in which we held that an applicant can show harm from an illegal sentence by showing that he has no other conviction to support the punishment range within which he was sentenced. If the State is correct, Parrott and its progeny are meaningless because no applicant harmed by an illegal sentence could ever prove harm. Laches would prevent consideration of the claim. After reviewing the parties’ arguments and the entire record in this case, we conclude that the totality of the circumstances weigh in favor of not applying laches to Applicant's illegal-sentence claims.
The State's argument is akin to saying that laches should apply because the State would be harmed if Applicant is resentenced based on his actual criminal history.
Id. ; see, e.g. , Ex parte Rodgers , 598 S.W.3d 262 (Tex. Crim. App. 2020) (denying relief on an illegal-sentence claim because applicant was not harmed under Parrott ; not applying laches); Ex parte Thompson , No. WR-85,274-01, 2016 WL 4938348 (Tex. Crim. App. Sept. 14, 2016) (per curiam) (not designated for publication) (granting relief on an illegal-sentence claim under Parrott because applicant did not have another conviction that would support the punishment range in which he was sentenced; not applying laches).
III. ILLEGAL SENTENCE CLAIMS
The next issues are whether Applicant forfeited his illegal-sentence claims when he failed to object at trial, and if not, whether his sentences are illegal. To resolve those issues, we must first review two different, but closely related, lines of cases because both parties rely on them in their briefs: illegal-sentence claims based on invalid enhancements ( Rich ) and invalid-enhancement claims ( Hill , White , and Patterson ). We begin with the former.
a. Precedent
1. Illegal Sentence Claims
In Rich , the applicant pled guilty to felony driving while intoxicated (DWI) and was sentenced based on two enhancements to a term of 25 years’ confinement pursuant to a plea bargain. Rich , 194 S.W.3d at 510 (citing TEX. PENAL CODE 12.42(d) (providing for an enhanced punishment range of between twenty-five to ninety-nine years’ confinement)). The applicant did not appeal. Id. at 509. He argued for the first time in his initial writ application that his sentence was illegal because one of his enhancing convictions had been reduced to a misdemeanor. Id. at 510. We held that his illegal-sentence claim was not forfeited, explaining that we have long allowed such claims to be raised for the first time postconviction and that the appellate record did not reveal the problem with the applicant's sentence. Id. at 513. We further explained that, when deciding whether a sentence is illegal, the issue is "the legality of the punishment as it now stands" even though the trial court's reasoning and determination might have been correct according to the facts before it at the time of sentencing, and that the applicant's sentence was illegal because it exceeded the maximum term of confinement by five years. Id. at 512 In addressing harm, we noted that the applicant's actual criminal history did not support the enhanced punishment range within which he was sentenced, and there was a great disparity between the 25-year sentence he received and "the possible sentences within the proper range of punishment." Id. at 510, 514. His sentence was "more than ten times the minimum, and five years more than the maximum ...." Id. at 512–13.
2. Improper Enhancement Claims
In Hill , the appellant was convicted of felony theft and his punishment was enhanced by two prior felony convictions. Hill v. State , 633 S.W.2d 520, 520 (Tex. Crim. App. [Panel Op.] 1981). He subsequently appealed his theft conviction and filed a writ of habeas corpus. Id. On appeal, he argued that the his theft conviction should be reversed because one of the enhancement convictions was defective. Id. at 523 (op. on reh'g). On writ, he argued that the same enhancement was void because his counsel was not present when he was sentenced. Id. Notably, the applicant never argued that his sentence was illegal, only that one of the enhancements was improper. In a consolidated opinion, we granted relief and set aside his enhancing conviction, reversed his conviction for the primary offense, and remanded the case for a new trial. Id. at 520. On rehearing, however, we reversed course and held that a defendant cannot raise for the first time on direct appeal an improper-enhancement claim unless he objected at trial. Id. at 525 (op. on reh'g); but see Ex parte Cashman , 671 S.W.2d 510, 513 (Tex. Crim. App. 1983) (Clinton, J., dissenting) (" Hill ’s principal vice lies in the breadth of its stated holding."). We reasoned that, when it comes to improper-enhancement claims, "[i]f an objection is timely lodged on proper grounds, the trial court can finally determine, at trial, whether the prior conviction was permissibly obtained and whether it is admissible as evidence." Hill , 633 S.W.2d at 525.
In Ex parte White , 659 S.W.2d 434 (Tex. Crim. App. 1983), we recognized an exception to the Hill improper-enhancement, contemporaneous-objection rule: it did not apply when an invalid enhancement rendered the indictment or information void because the trial court never acquired jurisdiction. Id. at 435. A few years later, however, we held in Patterson that White was abrogated by the combination of a constitutional amendment to Section 12(b) of Article V of the Texas Constitution and an amendment to Article 1.14(b) of the Texas Code of Criminal Procedure. Patterson , 969 S.W.2d at 19 (op. on reh'g). The constitutional amendment substantially broadened what constitutes an indictment or information, requiring only that the instrument "charg[e] a person with the commission of an offense," and Article 1.14(b) of the Texas Code of Criminal Procedure was amended to provide that a defendant waives any procedural or substantive defect in an indictment or information unless he objects before the trial on the merits commences. Id. at 19, 20 ; see TEX. CODE CRIM. PROC. art. 1.14(b). We concluded that the applicant in Patterson was not entitled to relief because, even though the indictment was voidable, he failed to object at trial. Patterson , 969 S.W.2d at 20 (op. on reh'g).
Article 1.14(b) states that,
If the defendant does not object to a defect, error, or irregularity of form or substance in an indictment or information before the date on which the trial on the merits commences, he waives and forfeits the right to object to the defect, error, or irregularity and he may not raise the objection on appeal or in any other postconviction proceeding. Nothing in this article prohibits a trial court from requiring that an objection to an indictment or information be made at an earlier time in compliance with Article 28.01 of this code.
Tex. Code Crim. Proc. art. 1.14(b).
To determine if an instrument is an indictment, we look to the face of the charging instrument to determine if it is clear enough to give a defendant adequate notice of the charge against him. Jenkins v. State , 592 S.W.3d 894, 901 (Tex. Crim. App. 2018).
b. Applicant Did Not Forfeit His Illegal Sentence Claims
The State argues that our improper-enhancement cases control the outcome of the preservation issue, specifically Patterson , and that Applicant forfeited his illegal-sentence claims because he failed to object at trial. It also argues that Rich is distinguishable because the applicant's sentence in that case was illegal when it was imposed. Applicant responds that Rich controls and that, in granting relief, this Court never mentioned the fact that the applicant's sentence was illegal when it was imposed. Rather, it relied on a determination of the legality of the sentence postconviction. He further contends that, if Rich does not control, we should overrule Hill and its progeny. He asserts that no judge can "finally determine" at trial whether a conviction was "permissibly obtained" and that, even if a judge could do so, that would encroach on this Court's sole authority to grant postconviction habeas relief. See TEX. CODE CRIM. PROC. Chp. 11; see Cashman , 671 S.W.2d at 513 (Clinton, J., dissenting).
Just last year, this Court reaffirmed that "a claim of illegal sentence based upon an invalid enhancement is cognizable in post-conviction habeas corpus proceedings ...." Rodgers , 598 S.W.3d at 267 (citing Parrott , 396 S.W.3d at 538 ); Ex parte Pue , 552 S.W.3d 226, 228 n.7 (Tex. Crim. App. 2018) (same). Additionally, our research shows that, although we have routinely followed Rich , we have not mentioned Hill or any of our improper-enhancement cases in those decisions, nor have we referred to our illegal-sentence jurisprudence in our Hill line of cases. In fact, it appears that this Court has not relied on Hill or its progeny in the 23 years since Patterson was decided. Specific to this case, we also note that the illegality of Applicant's sentence, like the illegality of the applicant's sentence in Rich , was not ascertainable from the appellate record, becoming apparent only years later when this Court overturned his enhancement conviction on involuntary-plea grounds due to a Brady violation. Rich , 194 S.W.3d at 510. The foregoing leads to the following two conclusions: Rich controls Applicant's illegal-sentence claims based on an improper enhancement, and we need not overrule Hill and its progeny because they do not apply to illegal-sentence claims based on an improper enhancement.
In Burg v. State , 592 S.W.3d 444, 449 (Tex. Crim. App. 2020), and without reference to Hill or its progeny, we stated that Rule 33.1 of the Texas Rules of Appellate Procedure governing error preservation "does not bar review of a claim that a sentence is illegal due to the fact that it is outside the maximum or minimum range of punishment." Burg v. State , 592 S.W.3d 444, 449 (Tex. Crim. App. 2020). It appears that this holding would be in direct contradiction to Hill , if Hill applied to illegal-sentence claims.
c. The Vacatur of an Enhancement Conviction Can Render the Sentence for the Primary Offense Illegal
Next, the State argues that, even if Applicant can bring his claims for the first time on writ, his sentences are not illegal because, at the time he was sentenced, his enhancing conviction had not yet been set aside. For support, it cites our decision in Ex parte Jimenez , 361 S.W.3d 679 (Tex. Crim. App. 2012). We disagree that Jimenez applies. In that case, the applicant was convicted of felon in possession of a firearm. Id. at 680. Later, this Court set aside the felony conviction relied on by the State. Id. at 681. The applicant then filed an application for a writ of habeas corpus and argued that his felon-in-possession-of-a-firearm conviction was void because the State could no longer prove that he was a convicted felon when he possessed the firearm. Id. We held that the conviction was not void because the State was required to prove that the applicant was a convicted felon when he possessed the firearm and that it had no continuing duty to be able to prove each essential element of the offense in perpetuity. Id. at 684. Rich , on the other hand is directly on point, and it states that when dealing with an illegal-sentence claim based on an improper enhancement, we determine "the legality of the punishment as it now stands," not as it stood at some other time. Rich , 194 S.W.3d at 512.
d. Applicant's Sentences Are Now Known To Be Illegal
"A sentence that is outside the maximum or minimum range of punishment is unauthorized by law and therefore illegal." Rodgers , 598 S.W.3d at 267 (citing Mizell v. State , 119 S.W.3d 804, 806 (Tex. Crim. App. 2003) ). To determine if a sentence exceeds the maximum or minimum range of punishment authorized by law, we compare the enhanced sentence that an applicant received to the range of punishment in which the applicant would have been sentenced without the improper enhancement. Parrott , 396 S.W.3d at 533 ; Rich , 194 S.W.3d at 510–12. If the enhanced sentence is outside that range of punishment, the sentence is illegal. Rodgers , 598 S.W.3d at 267 (citing Mizell , 119 S.W.3d at 806 ).
Here, both of Applicant's sentences are illegal because they exceed the maximum possible terms of confinement for a second-degree felony. Sexual assault of a child and indecency with a child by contact as alleged in this case are second-degree felonies. TEX. PENAL CODE §§ 22.011(f), 21.11(d). A second-degree felony carries a range of confinement between two and twenty years. Id. § 12.33(a). Based on an enhancement, Applicant was automatically sentenced to life imprisonment for sexual assault of a child and was sentenced by the jury to life imprisonment for indecency with a child by contact. Id. §§ 12.42(b); 12.42(c)(2). Applicant's life sentences are illegal because they exceed what he could have received from the jury without the enhancement—a maximum of twenty years’ confinement. Id. § 12.33.
e. Applicant Was Harmed by His Sexual Assault of a Child Illegal Sentence But Not His Indecency with a Child Illegal Sentence
1. Sexual Assault of a Child
We recognized in Parrott that an applicant is not harmed by an illegal sentence if his actual criminal history supports the range of punishment in which he was sentenced. Parrott , 396 S.W.3d at 537. The State and Applicant agree that Applicant was harmed by his automatic life sentence for sexual assault of a child. The State argues that, at most, Applicant's punishment could have been enhanced into the first-degree felony punishment range, and even though that range includes life as a term of punishment, the possibility of a life sentence and an automatic life sentence are not the same "punishment range" for purposes of an illegal-sentence analysis. We agree. Section 12.42(c)(2) is a special enhancement provision that does not enhance a defendant's sentence into a punishment range. TEX. PENAL CODE § 12.42(c)(2). Rather, it fixes the punishment by law at automatic life imprisonment and deprives an applicant from being sentenced by a jury of his peers, which would have been able to consider the full range of punishment. Further, we note that "[a]n inmate serving a sentence under Section 12.42(c)(2), Penal Code, is not eligible for release on parole until the actual calendar time the inmate has served, without consideration of good conduct time, equals 35 calendar years," but "a defendant is eligible for parole in 15 years...." when assessed an "ordinary" life sentence. TEX. GOV'T CODE §§ 508.145(c), 508.145(f). This is sufficient to show Parrott harm because Applicant's actual criminal history cannot support the automatic life sentence he received under Section 12.42(c)(2) ; Parrott , 396 S.W.3d at 537.
The State also argues that, if we find that Applicant's sentences are illegal, he was probably harmed under Alleyne v. United States , 570 U.S. 99, 133 S.Ct. 2151, 186 L.Ed.2d 314 (2013) because the enhancement increased the minimum punishment. While the enhancement did increase the minimum punishment, Alleyne dealt with the federal sentencing guidelines and whether enhancements are considered fact issues to be submitted to the jury under the Sixth and Fourteenth amendments. Id. at 111–12, 133 S.Ct. 2151. This case is about illegal sentences under state law, not federal law. Further, the sexual-assault conviction was submitted to the jury has a fact issue, and the jury found it true.
If Applicant had been sentenced for a first-degree felony, he could have been sentenced to as little as five years’ confinement. Tex. Penal Code § 12.32 ; see Rich , 194 S.W.3d at 514 n.12 (noting the great disparity between the applicant's twenty-five year sentence and the punishment range within which he should have been sentenced of two to twenty years’ confinement).
2. Indecency with a Child
Applicant argues that whether he was harmed by his illegal indecency-with-a-child sentence is more complicated. It is undisputed that Applicant cannot show Parrott harm because his actual criminal history supports the first-degree felony punishment range in which he was sentenced. But Applicant argues that he was nonetheless harmed because the "replacement" conviction was for a dissimilar, less reprehensible offense—felony theft—and he points out that the State heavily relied on the sexual nature of his aggravated-sexual assault enhancement during closing arguments, asking the jury to give him the maximum terms of confinement because he was a serial sex offender. The State argued,
Why is the State asking for two life sentences? Is that a lot? Yeah, it's a lot. Sure. It's a lot, and it's not asked for lightly. But please think about the circumstances of this case when you decide the punishment. This man was in prison for aggravated sexual assault of a child under 14, a 12 year-old, his niece. He goes to prison for it, pleads guilty, goes to prison, gets released, is a registered sex offender and then molests his daughter, twice. You've convicted him of it. Two lives irreparably changed by one defendant. What's the value of that? You have to decide the value of what's happened to these kids.
Applicant also directs us to Tyrone v. State , 854 S.W.2d 153, 160 (Tex. App.—Fort Worth 1993, pet. ref'd) for support, asserting that the court of appeals found that extraneous offenses erroneously admitted at punishment were harmful because "the evidence ... implicated that appellant committed numerous previous offenses which were sufficiently similar in detail to the sexual abuse for which appellant was convicted," and the State emphasized the previous convictions at the punishment hearing. Id. at 160. Applicant further argues that the jury was influenced to assess a life sentence for indecency with a child because it knew that Applicant would be automatically sentenced to life imprisonment for sexual assault of a child if it found the enhancement true, which it did.
We conclude that Parrott controls. The harm associated with an illegal sentence turns on only whether an applicant's sentence is within the range set by law, and here, Applicant cannot show that he was harmed by his illegal sentence for indecency with a child because his actual criminal history supports the first-degree felony punishment range in which he was sentenced.
IV. CONCLUSION
Applicant is not entitled to a new punishment hearing on his conviction for indecency with a child, but he is entitled to a new punishment hearing on his conviction for aggravated sexual assault of a child, and we remand this cause for that purpose.
Keller, P.J., filed a concurring and dissenting opinion.
Yeary, J., filed a concurring and dissenting opinion in which Slaughter, J., joined.
Keller, P.J., filed a concurring and dissenting opinion.
Because Applicant's claims on both convictions are barred by laches, I cannot agree with the Court's grant of relief on the sexual assault case.
I agree with the Court that Applicant has not been harmed by the illegal sentence in the indecency with a child case, and that is a sufficient basis for denying relief regardless of one's view on the laches issue.
See Beal v. State , 91 S.W.3d 794, 795 (Tex. Crim. App. 2002) (holding that a conviction becomes final for enhancement purposes "when the appellate court issues its mandate affirming the conviction").
The Court says that the appropriate time to apply laches because of Applicant's delay in challenging the prior conviction would have been in the habeas proceeding for that conviction. The Court does not explain why it comes to that conclusion, and I am aware of no previously decided case holding that. Laches is a "flexible" inquiry, and anything that "places the State in a less favorable position" can result in a laches determination if the defendant has slept on his rights.
Ex parte Perez , 445 S.W.3d 719, 723 (Tex. Crim. App. 2014).
Because Applicant committed the sexual assault of a child offense on August 22, 2008, the controlling statute is the 2008 version of the Texas Penal Code. At that time, Section 12.42(c)(2) read:
Notwithstanding Subdivision (1) a defendant shall be punished by imprisonment in the Texas Department of Criminal Justice for life if:
(A) the defendant is convicted of an offense:
(i) under Section 21.11(a)(1), 22.021 or 22.011, Penal Code ;
(ii) under Section 20.04(a)(4), Penal Code, if the defendant committed the offense with the intent to violate or abuse the victim sexually; or
(iii) under Section 30.02, Penal Code, punishable under Subsection (d) of that section, if the defendant committed the offense with the intent to commit a felony described by Subparagraph (i) or (ii) or a felony under Section 21.11, Penal Code ; and
(B) the defendant has been previously convicted of an offense;
(i) under Section 43.25 or 43.26, Penal Code, or an offense under Section 43.23, Penal Code, punishable under Subsection (h) of that section,
(ii) under Section 21.02, 21.11, 22.011, 22.021, or 25.02, Penal Code ;
(iii) under Section 20.04(a)(4), Penal Code, if the defendant committed the offense with the intent to violate or abuse the victim sexually;
(iv) under Section 30.02, Penal Code, punishable under Subsection (d) of that section, if the defendant committed the offense with the intent to commit a felony described by Subparagraph (ii) or (iii); or
(v) under the laws of another state containing elements that are substantially similar to the elements of an offense listed in Subparagraph (i), (ii), (iii), or (iv).
Texas Penal Code § 12.42(c)(2).
Ex parte Saenz , 491 S.W.3d 819, 825 (Tex. Crim. App. 2016) ; Perez, supra.
I note that the Legislature has not required that the prior conviction be final before it may be used to enhance under Section 12.42(c)(2). Elsewhere I have assailed the Court's tendency to read a finality requirement into such statutory provisions. Ex parte Westerman , 570 S.W.3d 731, 737–38 (Tex. Crim. App. 2019) (Yeary, J., dissenting) ("Nevertheless, this court has subsequently read into Section 12.42(d) a requirement that the felony on trial must have been committed after the second enhancing felony became final") (citing Tomlin v. State , 722 S.W.2d 702, 705 (Tex. Crim. App. 1987) ). Even if the Court were to read a finality requirement into Section 12.42(c)(2), it is undisputed by the parties that the aggravated sexual assault conviction was final at the time it was used to enhance Applicant's sexual assault and indecency convictions. Thus, the finality of the aggravated sexual assault conviction is not at issue in this case.
Allowing a laches inquiry related to an enhanced conviction even when relief has been granted on the enhancing conviction makes sense. One reason to do so is that we typically leave it to the State or the habeas court to raise laches. The Court holds today that laches is not available in considering a subsequent conviction if relief has already been granted on a prior conviction used for enhancement. Under this new rule, we will have every reason to consider laches, regardless of whether it has been raised, before we ever grant relief on any conviction. And since a failure to raise laches forfeits the claim in all related cases, I think the State could be more likely to contest relief on the basis of laches when it might otherwise have agreed to relief in a particular case. All of this seems like a bad idea, and it is not supported by any caselaw that I am aware of.
In this case, the judgment in Applicant's aggravated sexual assault conviction—the prior conviction being used for enhancement purposes—was dated May 5, 2000. His new offenses, according to the indictments, were committed on or about August 22, 2007 (indecency) and August 22, 2008 (sexual assault), but the indictments were both filed on March 26, 2010. Applicant did not appeal his 2000 conviction. Applicant had almost ten years to discover, challenge, and obtain relief on the 2000 conviction and for the State to then reprosecute it so that it would be available for enhancement. That, to me, seems to be enough time. Instead, he waited until after he was convicted of the new offenses to try to overturn the old offense. For this type of laches inquiry, the prejudice the State suffered was not being able to use the 2000 conviction for enhancement when it might still have been possible to retry Applicant and use the conviction for that offense if Applicant had brought his claims in a timely fashion. The State has suffered prejudice on the indecency and sexual assault convictions, and because Applicant slept on his rights, laches should bar him from challenging the use of the 2000 conviction for enhancement for these two later convictions.
With the same exact date of the year alleged, one of those dates is likely a typographical error, but in any event, both indictments include "on or about" language.
There was no notice of appeal in the record of Applicant's first conviction, and it is likely true that Applicant's conviction was thus final when he was sentenced in 2000. See Jones v. State , 77 S.W.3d 819 (Tex. Crim. App. 2002) (in a case involving a prosecution under Section 531.372 of the Transportation Code, this Court held that "when there is no evidence that a defendant ever filed a notice of appeal, a conviction is deemed to be final on the date of sentencing[,]" and the Court drew analogy to the situations presented under Section 12.42 ).
The fact that the State suffered prejudice on the indecency and sexual assault offenses does not mean that we should have applied laches to the 2000 conviction itself. And as long as there was no impediment to the State retrying the 2000 conviction, it was appropriate to grant relief in that case and deal with any laches issue flowing from its use for enhancement purposes in challenges to the convictions being enhanced.
Because laches should bar any challenge to the use of the 2000 conviction to enhance the sexual assault and indecency with a child convictions, we should deny relief on both cases.
I concur in the Court's decision to deny relief on the indecency with a child case, but I respectfully dissent from its decision to grant relief in the sexual assault case.
CONCURRING AND DISSENTING OPINION
Yeary, J., filed a concurring and dissenting opinion in which Slaughter, J. joined.
Instead of upholding a validly assessed sentence, the Court grants Applicant post-conviction habeas corpus relief in his sexual-assault-of-a-child conviction based on a claim of improper sentence enhancement. But, at the time that Applicant's sentence was enhanced in 2012, and for the three years following the appellate court's mandate, which finalized his appeal,1 there was nothing wrong with that enhancement. The sentence did not come into question until 2018, when this Court vacated the underlying felony conviction for aggravated sexual assault because of an involuntary guilty plea.
At the time that Applicant committed the current offense of sexual assault of a child, the enhancement statute was clear that a previous conviction for certain enumerated crimes—including aggravated sexual assault—could be used to enhance a subsequent sexual assault conviction to an automatic life sentence. With this statute on the books, Applicant nevertheless chose to commit sexual assault of a child, presumably aware of the repercussions of a guilty verdict. The Court's decision today leaves open the possibility that a defendant can challenge a sentence fifty years down the road, after all witnesses have passed away and no one remains from the original trial, solely because the underlying felony is later, on whatever basis, invalidated. This undermines the idea that there can ever truly be a "final conviction" in a case where a sentence has been enhanced by proof of a prior conviction. I dissent to granting relief in Applicant's sexual-assault-of-a-child case.
I. FACTS AND PROCEDURAL POSTURE
In 2000, after pleading guilty, Applicant was convicted of aggravated sexual assault of a child, and he was sentenced to confinement for five years. He never perfected an appeal in that case. In 2007, Applicant committed the offense of indecency with a child. One year later, in 2008, he also committed the offense of sexual assault of a child. In 2012, the State proceeded to trial of those offenses pursuant to separate indictments. A jury found Applicant guilty of both sexual assault of a child and indecency with a child—both second degree felonies—which are the subject of these writ applications.
At the punishment phase, the State presented evidence of Applicant's previous conviction of aggravated sexual assault from 2000, to enhance both offenses. The jury was instructed that, if it should find that Applicant was in fact convicted of that prior offense, it must assess an automatic life sentence for the sexual assault conviction, pursuant to Texas Penal Code Section 12.42(c)(2). TEX. PENAL CODE § 12.42(c)(2). As for the indecency conviction, Applicant's sentence was enhanced to a first-degree felony based upon proof of the same previous aggravated sexual assault conviction, under Section 12.42(b). TEX. PENAL CODE § 12.42(b). The jury exercised its sentencing discretion to assess a life sentence in that case as well. Applicant appealed both the sexual assault and the indecency convictions. The Sixth Court of Appeals affirmed both convictions in 2013. Hill v. State , Nos. 06-12-0094-CR & 06-12-0095-CR, 2013 WL 69248 & 2013 WL 69239 (Tex. App.—Texarkana Jan. 8, 2013) (not designated for publication).
In 2018, Applicant challenged his 2000 aggravated sexual assault conviction in an application for post-conviction writ of habeas corpus, arguing that his guilty plea had been involuntary. This Court granted Applicant relief in that case and vacated that conviction. Ex parte Hill , No. WR-83,074-03, 2018 WL 2327177 (Tex. Crim. App. May 23, 2018) (not designated for publication). Applicant then filed the post-conviction applications for writ of habeas corpus before the Court today, seeking relief based on illegal sentence claims.
In June of 2019, this Court issued an order finding that Applicant's life sentences were illegal because of the use of an invalid prior conviction to enhance the punishment ranges, and we remanded the cases to the convicting court, consistent with Ex parte Parrott , 396 S.W.3d 531, 533 (Tex. Crim. App. 2013), to determine whether Applicant had any other prior felony convictions that could have been used for enhancement purposes. Ex parte Hill , Nos. WR-83,074-04 & WR-83,074-05, 2019 WL 2607173 (Tex. Crim. App. June 26, 2019) (not designated for publication). When the cases returned to us, we ordered the parties to submit additional briefing. Ex parte Hill , Nos. WR-83,074-04 & WR-83,074-05, 2020 WL 587080 (Tex. Crim. App. Feb. 5, 2020) (not designated for publication). Today, the Court grants Applicant a new punishment determination in his sexual-assault-of-a-child case.
I dissent to granting such relief. In my view, Applicant's automatic life sentence in the sexual assault of a child case was justified because Section 12.42(c)(2) only requires the State to prove that Applicant was previously convicted of one of the offenses listed in 12.42(c)(2)(B)(ii) in order to obtain an automatic life sentence—not that he actually committed such an offense or that the conviction was forever unassailable. The prior aggravated sexual assault conviction used to enhance the sentence for Applicant's subsequent sexual assault conviction was valid at the time it was used.
As for the jury's discretionary assessment of a life sentence in the indecency case, I agree with the Court's bottom line today because the improper enhancement under Section 12.42(b) was harmless under Parrott since Applicant's sentence could have been enhanced in any event by virtue of the previous felony theft conviction. I also believe that any claim that the jury's discretion in assessing that life sentence was polluted because the jurors heard evidence of Applicant's now-invalidated prior aggravated sexual assault conviction would be in the nature of an inadvertent-use-of-false-evidence claim, not an illegal-sentence claim. Applicant has not made a claim that the punishment phase of his indecency trial was tainted by the introduction of false evidence. And finally, I believe that, in any event, both of Applicant's claims should probably be barred by laches because he waited so long before challenging the 2000 prior conviction that the State used, twelve years later, to enhance the convictions he presently challenges.
II. SEXUAL ASSAULT OF A CHILD: AUTOMATIC LIFE SENTENCE
Applicant received an automatic life sentence for the sexual assault offense pursuant to Section 12.42(c)(2).2 Under that Section, the State may enhance certain sexual assault offenses to an automatic life sentence upon a showing that the defendant has previously been convicted of an offense listed in Subsection 12.42(c)(2)(B)(ii). There is no question that Applicant's previous aggravated sexual assault conviction was final at the time that it was used to enhance Applicant's sexual assault and indecency convictions.3 Applicant did not appeal the aggravated sexual assault conviction, likely making the conviction final when the judgment of conviction was signed by the trial court in 2000.4 Thus, as of the time that Applicant committed the offenses, in 2007 and 2008, and as of the time he was convicted for both, in 2012, the enhancement was valid because Applicant's aggravated sexual assault conviction had not yet been vacated. Indeed, the Court's previous remand order acknowledged that, "[a]t the time of trial, Applicant's prior conviction was facially valid[.]" Ex parte Hill , Nos. WR-83,074-04 & WR-83,074-05, 2019 WL 2607173, at *1. Nevertheless, the Court today finds Applicant's automatic life sentence to have been "illegal"—thus, apparently invoking the principle that "illegal sentences" may be challenged "at any time." Id. (citing Ex parte Rich , 194 S.W.3d 508, 512 (Tex. Crim. App. 2006), which in turn cites Mizell v. State , 119 S.W.3d 804, 806 (Tex. Crim. App. 2003) ).
I do not believe that the use for enhancement purposes of a prior conviction that is later invalidated because of an involuntary plea implicates Mizell ’s "illegal sentence" principle. I have expounded upon my view in this regard at some length in other cases in the past several years, most particularly in Ex parte Pue , 552 S.W.3d 226, 238–44 (Tex. Crim. App. 2018) (Yeary, J., dissenting). I will not revisit all of those arguments here, but will reiterate a relevant passage from that dissent:
The Court goes to some length today to distinguish (what it calls) an "illegal sentence" claim stemming from a punishment-enhancement defect from (what it calls) a simple "improper enhancement" claim. Majority Opinion at –––– – ––––. I am not at all sure I comprehend what marks the distinction in the Court's eyes. Whatever the distinction may be, the Court categorizes Hill v. State , 633 S.W.2d 520 (Tex. Crim. App. 1981), as involving nothing more than an "improper enhancement" claim. Majority Opinion at –––– – ––––. Assuming that there is any validity at all to the Court's dichotomy, I would fail to see how the Court can possibly regard Hill (according to its own apparent criteria) as a case involving only a simple "improper enhancement." Hill was indicted for theft of property of a value of between $200 and $10,000, 633 S.W.2d at 521, which at the time of the offense, in 1978, constituted a third-degree felony, punishable then, as now, at a term in the penitentiary of 2 to 10 years. Because of two enhancement counts, he instead received a punishment of life in the penitentiary under Section 12.42(d) of the Penal Code. When he challenged the validity of one of those prior convictions for enhancement purposes, he was necessarily contending that the life sentence he received was outside of the proper range of punishment. It was therefore—at least in contemplation of the Court's apparent dichotomy today, as I think I understand it—a quintessential "illegal sentence" claim, not just an "improper enhancement" claim. Likewise with Ex parte White , 659 S.W.2d 434 (Tex. Crim. App. 1983). In that case, the applicant also challenged his life sentence on the ground that one of the prior convictions used to enhance his punishment from the third-degree felony range was invalid—another quintessential "illegal sentence" claim, at least according to what I understand to be the Court's distinction. Am I wrong? What am I missing? Is the Court instead saying that a claim stemming from an enhancement defect is only an "illegal sentence" claim if that is how the applicant himself (or worse, the Court itself) chooses to characterize it, and that it is otherwise simply an "improper enhancement" claim?
For my part, I remain unconvinced that any claim of punishment-enhancement error ought to be regarded as falling within the Mizell rubric of "illegal sentence" for purposes of habeas corpus cognizability, for reasons explained in the text. As far as I am concerned, any claim of error in the enhancement of punishment constitutes nothing more than an "improper enhancement" claim.
See also Ex parte Clay , 539 S.W.3d 285 (Tex. Crim. App. 2018) (Yeary, J., dissenting); Rodriguez v. State , 578 S.W.3d 92 (Tex. Crim. App. 2019) (Yeary, J., dissenting); Hestand v. State , 587 S.W.3d 409 (Tex. Crim. App. 2019) (Yeary, J., dissenting).
The system does not expect the trial court to monitor the adequacy or finality of the prior convictions alleged to enhance in order to ensure its own authority to impose a sentence within an enhanced range. The onus is instead placed on the defense to investigate the legitimacy of the State's enhancement counts, and to call any apparent deficiencies to the trial court's attention. In the absence of an objection, the trial court has no particular reason to doubt its authority to assess an enhanced sentence. The goal of preventing potentially unauthorized enhancements is not so critical to the proper functioning of the criminal justice system as to outweigh the State's legitimate interest in the repose of its final convictions. Such claims ought not to be regarded as subject to post-conviction collateral attack under the Mizell rubric of "illegal sentence."
Applicant has also alleged ineffective assistance of counsel for failing to investigate the validity of his prior aggravated sexual assault conviction for use to enhance his sentences. The Court does not address that claim in its order today. In an affidavit, trial counsel has claimed that Applicant failed to alert him to any reason to believe his prior conviction was based upon an involuntary plea. He does not say whether he conducted any independent investigation into the validity of the plea but implies that he did not when he asserts that it would "place[ ] an absurd burden on a defendant's trial counsel to simultaneously serve as post-conviction counsel for any previous convictions." Under these circumstances, I would not be averse to remanding the causes for additional fact development with respect to Applicant's ineffective assistance of counsel claim and potentially filing and setting for a determination of the merits of that claim. See Pue , 552 S.W.3d at 241–2 n.4 (Yeary, J., dissenting); Clay 539 S.W.3d at 289 (Yeary, J., dissenting). Because the Court grants relief without doing so, however, I dissent to its disposition of the causes.
What is more, at the time that Applicant committed the new offenses in 2007 and 2008, he was certainly aware that he was a convicted felon, and he also presumably knew that, if he was convicted of another sexual assault crime, he would receive an automatic life sentence pursuant to Section 12.42(c)(2). In other contexts we have found that vacating a predicate felony does not alter a subsequent conviction; for instance, when the predicate felony in an unlawful possession of a firearm case is vacated. Pursuant to the clear language of Section 12.42(c)(2), we should simply inquire whether the State has proved a valid conviction enumerated under Section 12.42(c)(2)(B), similar to the way we look at the defendant's felony status in unlawful possession of a firearm cases. In Ex parte Jimenez , this Court construed the language: "[a] person who has been convicted of a felony ...," found in Penal Code Section 46.05, to mean that the State only had to prove a defendant's felony status when he possessed the firearm—not that the predicate felony had to withstand scrutiny for all time in order for the unlawful possession of a firearm conviction to remain valid. 361 S.W.3d 679, 683 (Tex. Crim. App. 2012). Notably, the language under Section 12.42(c)(2) —the defendant is convicted of an offense—is similar to the language found in the unlawful possession of a firearm statute. Because the State proved at Applicant's trial that he had previously been convicted of an offense enumerated in Section 12.42(c)(2)(B), he was subject to the automatic life sentence enhancement under Section 12.42(c)(2). Instead, the Court grants Applicant relief, which opens the door to the possibility that a defendant who has been convicted of an offense, and whose sentence was validly enhanced at that time, can challenge his enhanced sentence conviction for an indefinite time, and seriously diminish the State's ability to exercise its statutory prerogative to enhance sentences with confidence that the enhancement will not undermine the judgment.
See Ex parte Jimenez , 361 S.W.3d 679 (Tex. Crim. App. 2012) (holding that unlawful possession of a firearm is a status crime, and Applicant was not entitled to relief even though the predicate felony supporting his conviction had been set aside and the charge dismissed); State v. Mason , 980 S.W.2d 635 (Tex. Crim. App. 1998) (finding that the unlawful possession of a firearm by a felon is a status offense).
III. INDECENCY: DISCRETIONARY LIFE SENTENCE
Once Applicant's conviction for indecency was enhanced with the prior aggravated sexual assault conviction, he was subject to punishment as a first-degree felon, authorizing the jury to assess a life sentence, at its discretion, under Section 12.42(b). Even if I thought the Court was correct that vacating a predicate felony conviction works to invalidate a subsequent sentence that was enhanced with that predicate felony, it would nevertheless be inappropriate for the Court to grant Applicant relief when another prior felony conviction exists which could have been substituted for the vacated prior felony conviction. In Ex parte Parrott , we held that an Applicant fails to demonstrate harm when the "habeas record establishes that Applicant was previously convicted of other offenses that support the punishment range within which he was admonished and sentenced[.]" 396 S.W.3d at 533.
Here, Applicant was finally convicted of felony theft in 2000, at the same time that he was convicted of aggravated sexual assault. Pursuant to Ex parte Parrott , the existence of Applicant's prior felony theft conviction renders harmless the fact that his prior felony conviction for aggravated sexual assault has been declared invalid, because the punishment range for his indecency offense could still be enhanced from a second-degree felony to a first-degree felony under Section 12.42(b). Under these circumstances, it cannot be said that he has received an illegal sentence for the indecency offense.
Because Applicant committed the indecency offense on August 22, 2007, the controlling statute is the 2006 version of the Texas Penal Code. Section 12.42(b) at that time read:
If it is shown on the trial of a second-degree felony that the defendant has been once convicted of a felony, on conviction he shall be punished for a first-degree felony.
Texas Penal Code § 12.42(b).
Perhaps it could be arguable that the introduction of the aggravated sexual assault conviction might have improperly influenced the jury in assessing punishment in Applicant's indecency-with-a-child case. Maybe the jury would not have assessed a life sentence had the indecency sentence been enhanced by the felony theft conviction and had there been no mention of the aggravated sexual assault conviction during Applicant's punishment trial. The jury could well have utilized its knowledge of the now-invalidated aggravated assault conviction, the argument might go, to justify imposing the highest possible sentence within the range of punishment for a first-degree felony. Assuming all of that, Applicant might argue that he is entitled to relief on his challenge to the indecency sentence—not on the basis of an illegal-sentence claim, but on a false evidence claim. Unfortunately, Applicant has not raised a false evidence claim.
See Ex parte Chaney , 563 S.W.3d 239, 263 (Tex. Crim. App. 2018) ("Due process of law is violated when a conviction is obtained using false evidence, irrespective of whether the false evidence was knowingly or unknowingly used against the defendant") (citing Ex parte Weinstein , 421 S.W.3d 656, 665 (Tex. Crim. App. 2014) ).
Applicant has been represented by counsel since the time he filed these post-conviction habeas corpus applications; he has nevertheless failed to raise a false evidence claim at any point. Even construing pro se writ applications liberally, we are not at liberty to "create claims that the Court sua sponte believes meritorious when they are not arguably present in an applicant's pleadings." Ex parte Carter , 521 S.W.3d 344, 350 (Tex. Crim. App. 2017) (plurality opinion). Further, even if the Court were justified in addressing a false evidence claim sua sponte , we would still need to determine whether the introduction of false evidence before the jury was material to the sentence. Because Applicant has failed to raise such a claim, or to argue materiality in that context, we should not entertain the claim today, and for that reason, if no other, the Court is correct not to grant relief on the basis of an illegal-sentence on the indecency charge.
See Ex parte Ghahremani , 332 S.W.3d 470, 478 (Tex. Crim. App. 2011) (holding that the use of false evidence must have been material to justify granting relief); See Ex parte Lalonde , 570 S.W.3d 716, 723 (Tex. Crim. App. 2019) (holding that in assessing a false evidence claim, the Court must first determine whether the evidence is false, and if the evidence is false, then the Court must determine whether such evidence was material).
IV. LACHES
Applicant did not appeal from his 2000 conviction for aggravated assault of a child, and he had brought no post-conviction habeas corpus challenge to it by the time he was prosecuted in 2012 for the two offenses before us in these habeas corpus proceedings today. It was only after the State had relied in good faith upon that 2000 conviction to enhance Applicant's punishments in the present cases that, for the very first time, he challenged the 2000 conviction in a collateral attack, beginning in 2014—fourteen years after he sustained the conviction! See Majority Opinion at –––– ("In September 2014, Applicant filed his initial habeas application.").
The Court today says that the time to have considered a laches bar to Applicant's obtaining relief in a collateral attack upon the 2000 conviction was when we granted post-conviction relief in that case, in 2019. Id. at ––––. I agree that we should have considered laches at that time, and I regret that I did not then object on that basis. Ex parte Hill , No. WR-83,074-03, 2018 WL 2327177 (Tex. Crim. App. May 23, 2018) (not designated for publication). I would not compound that manifest mistake today by refusing to apply laches now. Applicant waited at least twelve years, until after the State had relied in good faith upon his 2000 conviction to enhance punishment in the present cases, to go to the trouble to challenge that prior conviction. See Majority Opinion at –––– ("According to postconviction counsel, he was hired about six months after Applicant's enhanced sentences were affirmed on direct appeal, and he immediately began investigating the enhancing offense."). And it has now been nine years since Applicant sustained the two enhanced convictions that today he challenges—largely because it took him that long to successfully mount a collateral attack on the prior conviction. See id. at –––– – –––– (describing the circuitous course of Applicant's various habeas corpus challenges to his 2000 conviction). As far as I am concerned, the equities simply are not with him. The State's legitimate interest in the repose of its hard-won convictions and punishments easily trumps Applicant's much-belated attempt to undermine them. The Court should be more willing to consider denying Applicant relief on his sexual-assault-of-a-child conviction on this basis as well.
I agree with much of Presiding Judge Keller's dissenting opinion, especially with respect to laches. I cannot join her, however, if only because she seems to accept the Court's conclusion that at least some types of punishment-enhancement errors may appropriately be conceptualized as "illegal sentence" claims under the Mizell rubric.
V. CONCLUSION
Because the Court nevertheless grants relief with respect to that conviction, I respectfully dissent. For reasons stated in Part III herein, I concur in the Court's judgment to deny relief as to Applicant's indecency-with-a-child conviction.