Ex Parte Blume , 1981 Tex. Crim. App. LEXIS 1101 ( 1981 )

OPINION

W. C. DAVIS, Judge.

This is an application for post-conviction writ of habeas corpus pursuant to Article 11.07, Vernon’s Ann.C.C.P. Petitioner was convicted on August 18, 1978 of felony possession of marihuana and his punishment enhanced¹ from a third-degree felony to a second-degree felony by the use of a prior felony conviction in Federal Court. On October 8,1980, this Court remanded petitioner’s application back to the trial court for findings of fact as to whether the federal conviction was indeed used for enhancement. 607 S.W.2d 924 (Tex.Cr.App.). Within this factual determination, which is now before us, the trial court finds that petitioner’s conviction “was enhanced by the Applicant’s plea of true to a prior felony conviction in Federal Court.” The trial court further found “from an examination of the record and from admissions by the State, that the enhancing felony conviction was for an offense not made a felony under Texas law, and that the punishment should be set aside.”

This Court is not bound by the findings, conclusions, or recommendations of the trial court in reaching decisions on post-conviction application for writ of habeas corpus relief. Ex parte Ramirez, 577 S.W.2d 261 (Tex.Cr.App.1979).

The sole question presented is whether under the new Penal Code ² a federal conviction for an offense which does not constitute a felony under the Texas Penal Code can be used to enhance punishment under V.T.C.A., Penal Code, Sec. 12.-42. We hold that it can.

Under the old Penal Code,³ the enhancement articles provided as follows:

“Article 62. Subsequent conviction for felony. If it be shown on the trial of a felony less than capital that the defendant has been before convicted of the same offense, or one of the same nature, the punishment on such second or subsequent conviction shall be the highest which is affixed to the commission of such offenses in ordinary cases.⁴

Article 63. Third conviction for felony. Whoever shall have been three times convicted of a felony less than capital shall on such third conviction be imprisoned for life in the penitentiary.”

While these statutes speak of “a felony”, it was Article 47, Vernon’s Ann.P.C. which defined “felony”.⁵ Under Article 47, supra, before conduct could be a felony or misdemeanor it had to constitute an “offense”, and an offense was defined as something “forbidden by positive law, and to which is annexed, on conviction, any punishment prescribed in this code”.

The first case construing Article 63, supra, was Arnold v. State, 127 Tex.Cr.R. 89, 74 S.W.2d 997 (1934) (opinion on rehearing), wherein the defendant contended that the statute was not applicable because one of his prior convictions was had in Federal Court. This Court stated:

“The exact point that appellant stresses, namely, that the conviction in the federal court cannot be used to enhance the penalty against him, as above stated, has not been passed on so far as the members of this court are aware. Considered in the light of the precedents, however, upon the general subject of the trial of habitual criminals, no sound reason is perceived for setting aside the present judgment. As stated above, one of the prior convictions against the accused was in the United States court. It was in the state of Texas, however, and was for an offense denounced by the statutes of the state.”

Next, in Garcia v. State, 140 Tex.Cr.R. 340, 145 S.W.2d 180 (1940), the defendant was convicted for assault with intent to murder. Punishment, enhanced by use of several felony convictions in both federal and courts of foreign states, was assessed at life imprisonment pursuant to Article 63, supra. Initially, the Court rejected the appellant’s contention that felony convictions in federal courts will not support the imposition of a life sentence. The Court posited:

“The only question which we consider to be open for interpretation by this Court is whether or not the prior convictions must be for offenses which are denounced by the law of Texas as felonies.”

The Court looked for an answer in the legislative history of the enhancement provisions, but found none. The Court then turned for guidance to the language in Arnold v. State, quoted above, and concluded that convictions for felonies in federal courts and courts of other states would not support the enhanced penalty in Texas unless they were for crimes denounced by the Legislature of Texas as felonies. See also Ex Parte Puckett, 165 Tex.Cr.R. 605, 310 S.W.2d 117 (1958) and Clark v. State, 154 Tex.Cr.R. 581, 230 S.W.2d 234 (1950).

As noted in Garcia v. State, supra, this Court was without statutory guidance to classify convictions for enhancement purposes: hence, the rationale set forth in Arnold v. State, supra, became the rule. Such was the state of the law in Texas for forty years; however, with the enactment of the new Penal Code, the Legislature made significant changes in wording of the enhancement statutes.

V.T.C.A. Penal Code, Sec. 12.42 now provides as follows:

“(a) If it be shown on the trial of a third-degree felony that the defendant has been once before convicted of any felony, on conviction he shall be punished for a second-degree felony.

(b) If it be shown on the trial of a second-degree felony that the defendant has been once before convicted of any felony, on conviction he shall be punished for a first-degree felony.

(c) If it be shown on the trial of a first-degree felony that the defendant has been once before convicted of any felony, on conviction he shall be punished by confinement in the Texas Department of Corrections for life, or for any term of not more than 99 years or less than 15 years.

(d) If it be shown on the trial of any felony offense that the defendant has previously been convicted of two felony offenses, and the second previous felony conviction is for an offense that occurred subsequent to the first previous conviction having become final, on conviction he shall be punished by confinement in the Texas Department of Corrections for life.”

Under the new code, V.T.C.A. Penal Code, Sec. 1.07(a)(14), “felony” is defined as follows:

“ ‘Felony’ means an offense so designated by law or punishable by death or confinement in a penitentiary.”

Under V.T.C.A. Penal Code, Sec. 1.07(a)(20),

“ ‘Law ’ means the constitution or a statute of this State or of the United States

Most importantly, however, the Legislature enacted a statute to deal specifically with the classification for enhancement purposes of convictions obtained outside the Penal Code. Section 12.41 states, in part:

“For purposes of this subchapter, any conviction not obtained from a prosecution under this code shall be classified as follows:

(1) ‘felony of the third degree’ if confinement in a penitentiary is affixed to the offense as a possible punishment,

Contrasting the old code with the provisions of the new code, there can be no doubt that the Legislature intended to make convictions for felonies in federal courts as well as courts of other states available for enhancement purposes.

However, in Montgomery v. State, 571 S.W.2d 18 (Tex.Cr.App.1978), decided since the effective date of the new Penal Code, a panel of this Court followed the rule announced under the old code; i. e., a felony under Federal law must be an offense which is denounced as a felony under Texas law. Smith v. State, 548 S.W.2d 410 (Tex.Cr.App.1977), also decided since the new Penal Code, and cited in Montgomery, involved the use of a prior federal conviction to deny bail under Art. I, Sec. 11 — a of the Texas Constitution. The Court applied the old rule but found that the federal offense was also denounced by Texas law. Both Montgomery and Smith relied on former Penal Code cases for their authority, and in both cases this Court neglected to consider the effect of the new Penal Code. Insofar as Montgomery and Smith turn on the application of this rule, they are overruled.

Turning back to petitioner’s application, we conclude that the federal conviction was available for enhancement, pursuant to Sec. 12.42, V.T.C.A. Penal Code. Petitioner was convicted of receiving and concealing a stolen motor vehicle, an offense proscribed in 18 U.S.C. § 2313, which provides:

“Whoever receives, conceals, stores, barters, sells, or disposes of any motor vehicle or aircraft, moving as, or which is a part of, or which constitutes interstate or foreign commerce, knowing the same to have been stolen, shall be fined not more than $5,000 or imprisoned for not more than five years, or both.”

Title 18, U.S.C. § 4083, provides in part:

“Persons convicted of offenses against the United States or by courts-martial punishable by imprisonment for more than one year may be confined in any United States penitentiary.”

Thus, the federal offense for which petitioner was convicted carried confinement in the penitentiary as a possible punishment. See Sec. 12.41(1), supra.

The petitioner also contends that he was denied the effective assistance of counsel in that no pre-trial investigation was conducted by his defense attorney. There is nothing in the record which would support this assertion. The burden of proof of the allegations which entitle the prisoner to relief is upon the petitioner. Ex Parte Alexander, 598 S.W.2d 308 (Tex.Cr.App.1980). We conclude that the petitioner has not sustained his burden of proof.

The relief requested is denied.

It is so ordered.

ROBERTS, J., not participating.

1 . V.T.C.A. Penal Code, Sec. 12.42(a).

2 . V.T.C.A., Penal Code, Acts 1973, 63rd Legislature, Chap. 399, effective January 1, 1974, as amended by Acts 1973, 63rd Legislature, Chap. 426, effective January 1, 1974.

3 . Vernon’s Ann.P.C., Acts 39th Legislature, 1925.

4 . All emphasis added by writer of this opinion unless otherwise indicated.

5 .Article 47, supra, provided:

“An offense is an act or omission forbidden by positive law, and to which is annexed, on conviction, any punishment prescribed in this Code. An offense which may — not must — be punishable by death or by confinement in the penitentiary is a felony; every other offense is a misdemeanor. Felonies are either capital or not capital. An offense for which the highest penalty is death is a capital felony. Offenses are divided into felonies and misdemeanors.”