Westerman, John Dewayne ( 2018 )

IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
NO. WR-89,032-01
EX PARTE JOHN DEWAYNE WESTERMAN, Applicant
ON APPLICATION FOR A WRIT OF HABEAS CORPUS
CAUSE NO. 27595A IN THE 249TH DISTRICT COURT
FROM JOHNSON COUNTY
Per curiam.
ORDER
Pursuant to the provisions of Article 11.07 of the Texas Code of Criminal Procedure, the
clerk of the trial court transmitted to this Court this application for a writ of habeas corpus. Ex parte
Young, 418 S.W.2d 824, 826 (Tex. Crim. App. 1967). Applicant was charged with this aggravated
robbery in 1990, which was a first-degree felony. The indictment alleged a prior 1984 felony
conviction for burglary of a building, then a second-degree felony, which was to enhance the
punishment level to 15 to 99 years of life in prison. According to the judgment, Applicant pled guilty
under a plea agreement for a 30-year sentence.
Applicant argues that the repeat-felon enhancement was improper, that trial counsel was
ineffective for failing to investigate it, and that his guilty plea was involuntary. Applicant committed
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the prior burglary of a building offense on April 10, 1984. He pled guilty and was placed on
probation on August 3, 1984. The probation was revoked on July 28, 1986, and Applicant was sent
to prison. The docket sheet states, “Plea of True; Revoke Probation - sentence [Applicant] to 8 yrs.
in TDC subject to shock probation.” On October 16, 1986, the trial court placed Applicant on shock
probation for the burglary offense. According to the docket sheet, the shock probation was not
revoked and was terminated on May 22, 1990.
According to the indictment in the aggravated robbery prosecution, Applicant committed the
robbery offense on February 22, 1990. The indictment relied on the 1984 burglary of a building
offense in its punishment-enhancement paragraph. However, the 8-year sentence imposed in that
case was suspended, Applicant was placed on probation, and the probation was not revoked. This
Court has long held, “A conviction in which the sentence is suspended is not such a final conviction
as will support an enhancement of punishment, unless the suspension has been revoked.” Cromeans
v. State, 268 S.W.2d 133, 135 (Tex. Crim. App. 1954). “In ‘shock’ probation, when further
execution of the sentence is suspended, the conviction becomes non-final for purposes of
enhancement, and will not become final for such purposes unless revoked.” Ex parte Langley, 833
S.W.2d 141, 143 (Tex. Crim. App. 1992). Thus, it appears from the current habeas record that,
because the shock probation for the burglary offense was never revoked, there was not a final felony
conviction for purposes of enhancement, and the prior burglary offense could not be used as a
punishment enhancement in the aggravated robbery prosecution.
Additional fact-finding is needed to resolve the habeas claims. As we held in Ex parte
Rodriguez, 334 S.W.2d 294, 294 (Tex. Crim. App. 1960), the trial court is the appropriate forum for
findings of fact. The trial court shall gather information regarding: (1) whether the prior burglary
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of a building shock probation was revoked and whether it could be used as a punishment
enhancement as was done; (2) if not, whether the State could have relied on another prior conviction
to support the repeat-felon punishment enhancement, Ex Parte Parrott, 396 S.W.3d 531 (Tex. Crim.
App. 2013); (3) if no punishment enhancement could have been properly applied, whether Applicant
would have rejected the 30-year plea agreement for a more favorable plea deal or for trial, Strickland
v. Washington, 466 U.S. 668, 687 (1984); Hill v. Lockhart, 474 U.S. 52 (1985); Ex parte Rich, 194
S.W.3d 508 (Tex. Crim. App. 2006); and (4) why Applicant delayed for many years before raising
the habeas claims and whether the State has suffered material prejudice resulting from Applicant’s
delay, Ex Parte Perez, 398 S.W.3d 206, 215 (Tex. Crim. App. 2013).
The trial court may use any means set out in TEX . CODE CRIM . PROC. art. 11.07, § 3(d). In
the appropriate case, the trial court may rely on its personal recollection. Id. If the trial court elects
to hold a hearing, it shall determine whether Applicant is indigent. If Applicant is indigent and
wishes to be represented by counsel, the trial court shall appoint an attorney to represent Applicant
at the hearing. TEX . CODE CRIM . PROC. art. 26.04.
The trial court shall make findings of fact and conclusions of law resolving the above issues.
The trial court shall also make any other findings of fact and conclusions of law that it deems
relevant and appropriate to the disposition of Applicant’s claim for habeas corpus relief.
This application will be held in abeyance until the trial court has resolved the fact issues. The
issues shall be resolved within 90 days of this order. A supplemental transcript containing all
affidavits and interrogatories or the transcription of the court reporter’s notes from any hearing or
deposition, along with the trial court’s supplemental findings of fact and conclusions of law, shall
be forwarded to this Court within 120 days of the date of this order. Any extensions of time must
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be requested by the trial court and shall be obtained from this Court.
Filed: October 24, 2018
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