Smith, Rodney Camile ( 2005 )

IN THE COURT OF CRIMINAL APPEALS OF TEXAS

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NO. PD-0755-04

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RODNEY CAMILE SMITH, Appellant

v. THE STATE OF TEXAS

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ON STATE'S PETITION FOR DISCRETIONARY REVIEW FROM THE TENTH COURT OF APPEALS POLK COUNTY

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   Johnson, J., filed a concurring opinion.

C O N C U R R I N G O P I N I O N

I concur in the judgment of the Court. However, I believe that the advice of counsel, which resulted in the stipulation at issue here, may sink to the level of ineffective assistance of counsel, depending on the date of the commission of the 1990 conviction. Neither the indictment nor the record, including the stipulation, aids us in determining that date.

The instant offense occurred on September 4, 1999. The conviction date for the next previous offense is April 24, 1990. Given that there is always a period of time between commission of an offense and a resulting conviction, it is at least conceivable that the commission of the offense, which is the critical date, occurred before September 4, 1989, and thus falls outside the statutory limitation of ten years. Tex. Penal Code, § 49.09(e)(1999). Appellee, in his brief, asserts that the date in question is September 3, 1989, one day beyond the ten-year limit. That, however, is an issue to be raised on an application for habeas corpus.

En banc

Date filed: February 2, 2005

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