Shivers v. State ( 1978 )

OPINION

ODOM, Judge.

This is an appeal from a conviction for possession of heroin; punishment, enhanced by proof of two prior convictions, was fixed at life by the terms of V.T.C.A., Penal Code Sec. 12.42(d).

Appellant’s court-appointed counsel has filed a brief in which he concludes the appeal is wholly frivolous and without merit. Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493. Appellant has filed a pro se brief raising several grounds of error.

We have reviewed the record and briefs and agree that the appeal is frivolous, and we affirm the judgment.

The concurring opinion has seized upon one of the grounds urged in the pro se brief as an opportunity to argue that a long line of statutory construction be overruled. The established judicial construction of the felony habitual offender statute is that no felony conviction may be twice used under its provisions to obtain a punishment enhanced to life. The adoption of a new penal code in 1973 did not evidence any intent on the part of the legislature that a different interpretation should thereafter govern. See Carvajal v. State, 529 S.W.2d 517 (Tex.Cr.App.) and the Practice Commentary to Sec. 12.42(d), supra. The legislature’s failure to indicate a change in intent is of significance because we are here addressing a matter of statutory construction, not of judicially created rules of decision, as in evidentiary matters.

The facts upon which the issue would turn in this case show that the doctrine against multiple use of prior convictions for securing punishment as a habitual offender was not violated. Appellant argues his pri- or conviction in Cause No. 9614 in the 85th Judicial District Court of Brazos County, used for enhancement in this case, had previously been used to secure a life sentence in 1969 in Cause No. 9985 in the 85th Judicial District Court of Brazos County. The history of that 1969 conviction, however, shows that the life sentence was set aside in a collateral attack in Ex parte Shivers, 501 S.W.2d 898 (Tex.Cr.App.). Hence, the prior conviction used here had not previously been used successfully to secure a life sentence. Johnson v. State, 158 Tex.Cr.R. 154, 253 S.W.2d 1006. Thus, the proposal to abandon the long-standing rule upon which appellant attempts to rely is not even necessary for the affirmance of this case, since appellant is not within the terms of that rule. The position would be mere dictum.

We do, however, take this opportunity to bring to the attention of the legislature the numerous complexities existing in this area of the law, and the ease with which the legislature could simplify those matters and the litigation involving them. For a comprehensive discussion of this unnecessarily complex area of the law we cite the concurring opinion in this case as recommended reading.

The judgment is affirmed.