Johnson v. State , 1996 Tex. Crim. App. LEXIS 78 ( 1996 )

OPINION ON APPELLANT’S PETITION FOR DISCRETIONARY REVIEW

PER CURIAM.

Appellant delivered over 400 grams of a controlled substance in 1984. A jury convicted him of that offense in 1986, but this Court reversed and remanded the case for reassessment of punishment. Johnson v. State, 797 S.W.2d 668 (Tex.Cr.App.1990). While appellant’s appeal was pending in 1987, he was convicted in another ease in Virginia and sentenced to twenty years of confinement. On remand in 1993 for this Texas case, the trial court assessed punishment at sixty years of confinement, along with a $5000 fine. The judgment recites that the Texas sentence is to begin when the Virginia sentence ceases to operate. On appeal, appellant argued that although the 1987 amendment to Article 42.08(a), V.A.C.C.P., permitted cumu-lation with an out-of-state sentence, its operation in his case violated the Ex Post Facto Clause of the United States Constitution because he committed the present offense before the 1987 change to the statute and the version in effect at the time of the offense did not allow cumulation with an out-of-state sentence.¹ The Court of Appeals rejected that contention and affirmed the judgment. Johnson v. State, 900 S.W.2d 475 (Tex. App. — Beaumont 1995). We granted appellant’s petition for discretionary review to examine this holding.

In rejecting appellant’s ex post facto claim, the court of appeals peremptorily concluded that this Court’s opinion in Grimes v. State, 807 S.W.2d 582 (Tex.Cr.App.1991), controls. In Chimes this Court held that Article 44.29(b), Y.A.C.C.P., providing for a remand for re-assessment of punishment following the reversal of a judgment for error occurring only in the punishment phase, was not applied in violation of the Ex Post Facto Clause. Id., at 587. Appellant argues that Grimes involved a procedural statute, while the statute in the present case increases punishment retroactively, which is impermissible under the Ex Post Facto Clause. We agree.

An ex post facto law (1) punishes as a crime an act previously committed which was innocent when done, (2) changes the punishment and inflicts a greater punishment than the law attached to a criminal offense when committed, or (3) deprives a person charged with a crime of any defense available at the time the act was committed. Collins v. Youngblood, 497 U.S. 37, 42-43, 110 S.Ct. 2715, 2719, 111 L.Ed.2d 30, 38-39 (1990); Ex parte Hallmark, 883 S.W.2d 672, 674 (Tex. Cr.App.1994). The issue in this ease implicates the second definition, concerning punishment.

The ex post facto operation of a statute involving punishment has been expressed in a variety of ways. ‘When a court engages in ex post facto analysis, [it should be] concerned solely with whether a statute assigns more disadvantageous criminal or penal consequences to an act than did the law in place when the act occurred....” Grimes v. State, supra, at 587 (quoting Weaver v. Graham, 450 U.S. 24, 29 n. 13, 101 S.Ct. 960, 964 n. 13, 67 L.Ed.2d 17, 23 n. 13 (1981)). An ex post facto law makes more burdensome the punishment for a crime after its commission. Id. A statute violates the Ex Post Facto Clause if it retroactively increases the punishment for criminal acts. California Dept. of Corrections v. Morales, 514 U.S. -, -, 115 S.Ct. 1597, 1601, 131 L.Ed.2d 588, 594 (1995). An ex post facto law makes the measure of punishment more severe than that of the earlier statute. Id. The Ex Post Facto Clause prohibits the application of any new punitive measure to a crime already committed. Id. A retroactive increase in the “quantum of punishment” violates the ex post facto clause. Id., 514 U.S. at-, 115 S.Ct. at 1602, 131 L.Ed.2d at 595.

The United States Supreme Court has not articulated a single formula for identifying legislative changes that have a sufficient effect on punishment to fall within the Ex Post Facto Clause. Morales, 514 U.S. at -, 115 S.Ct. at 1603, 131 L.Ed.2d at 597. The question of what legislative adjustments violate the Ex Post Facto Clause is a matter of degree. Id. A reviewing court must determine whether the statutory change produces a sufficient risk of increasing the measure of punishment attached to the criminal act. Id. A statutory amendment that creates only the most speculative and attenuated possibility of producing the prohibited effect of increasing the measure of punishment does not violate the Ex Post Facto Clause. Id.

Long ago, the Texas Court of Appeals held that the application of a statute, which permitted consecutive sentences, to a defendant who committed the offense before the effective date of the statute was ex post facto. Baker v. State, 11 Tex.Ct.App. 262, 264-65 (1881); Hannahan v. State, 7 Tex.Ct.App. 664, 666 (1880). In each ease the judgment required the sentence to begin when a previous sentence expired. The defendants committed the offenses, which resulted in the second of the consecutive sentences, before the effective date of Revised Code of Criminal Procedure, Article 800, which permitted cumulative sentences. Prior to the enactment of Article 800, consecutive sentences were not allowed. The Texas Court of Appeals held that because Article 800 was more onerous than the law at the time the offense was committed, it was ex post facto when applied to offenses committed before its adoption. Baker, 11 Tex.Ct.App. at 264-65; Hannahan, 7 Tex.Ct.App. at 666. The opinions in these cases do not specify whether the holding is grounded on the ex post facto prohibition in Article I, § 10 of the federal constitution, in Article I, § 16 of the Texas Constitution, or in the common law. Nevertheless they are indicative of an attitude that to run one sentence consecutively with another is to impose a greater punishment than if the sentences were run concurrently. In other contexts as well, courts have regarded an order that a sentence run consecutively with another as an enhancement of punishment.

For example, a defendant’s due process rights are violated if after a successful appeal the defendant is resentenced vindictively in response to the defendant’s assertion of his right to appeal. North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969). Part of the analysis under such a claim is whether the defendant’s punishment was increased on resen-tencing. Pearce, 395 U.S. at 725-26, 89 S.Ct. at 2080-81, 23 L.Ed.2d at 669-70. This Court has never held that an order requiring consecutive sentences upon resentencing following sentences that were concurrent when originally assessed demonstrates vindictiveness. However, we have recognized the possibility that it does. Ex parte Mullins, 505 S.W.2d 575, 576 (Tex.Cr.App.1974). Meanwhile, federal courts have actually held that cumulating sentences that were originally concurrent constitutes increased punishment, thus triggering a North Carolina v. Pearce analysis. United States v. Markus, 603 F.2d 409 (2d Cir.1979); Barnes v. United States, 419 F.2d 753 (D.C.Cir.1969).

Additionally, the United States Supreme Court dealt with the effect of consecutive sentences in United States v. DiFrancesco, 449 U.S. 117, 101 S.Ct. 426, 66 L.Ed.2d 328 (1980). The defendant was sentenced to eight years and five years of confinement, to be served concurrently. Id., 449 U.S. at 122, 101 S.Ct. at 429, 66 L.Ed.2d at 336. He was sentenced to one year confinement on another charge, to be served consecutively with the other sentences. Id. The Supreme Court observed that this was a total of nine years of imprisonment. Id. The defendant was then sentenced, as a dangerous special offender under a federal statute calling for increased punishment, to two ten-year terms, to be served concurrently with the other sentences. Id., 449 U.S. at 122, 101 S.Ct. at 429-30, 66 L.Ed.2d at 336. The Supreme Court commented, “The dangerous special offender charge and sentences thus resulted in additional punishment of only about a year.” Id., 449 U.S. at 122-23, 101 S.Ct. at 430, 66 L.Ed.2d at 336. This suggests the Supreme Court has recognized that consecutive sentencing increases punishment.

This Court recently examined the purpose of a statute providing for consecutive sentences. Basden v. State, 897 S.W.2d 319 (Tex.Cr.App.1995). In construing Article 42.08(b), we determined that the obvious intent of the statute was “to more harshly punish” inmates who are not deterred from committing crimes in prison. Id., at 321. This Court held that the plain meaning of the statute, as argued by the defendants, “would lead to the absurd result of permitting inmates to commit crimes without fear of punishment.” Id. We quoted at length from the State’s brief, which argued that “any inmate who is serving a lengthy sentence and receives additional sentences for additional crimes while incarcerated will never be punished ... [and] will never serve additional time after the first [consecutive] sentence they have received.” Id., n. 4. We explained how in certain circumstances the plain meaning of the statute would lead to “no punishment for the first prison offense.” Id., at 322, n. 6. Consequently, we interpreted Article 42.08(b) in a way to “adequately punish” the commission of the prior prison sentence. Id., at 322. Thus, in Basden, this Court recognized that cumulation of sentences essentially constitutes an increase in punishment.²

It would be disingenuous, to say the least, to hold that what constitutes increased punishment in the above contexts does not also constitute increased punishment for purposes of ex post facto analysis. We must therefore conclude that to allow cumulation of punishment under authority of a statute that did not so provide at the time of the offense violates the Ex Post Facto Clause.

The judgment in cause number 16,133 from the 253rd District Court of Liberty County is reformed to delete the cumulation order. The judgment of the Court of Appeals is affirmed, as reformed. Cf. LaPorte v. State, 840 S.W.2d 412, 415 (Tex.CrA.pp. 1992).

1 . For. a discussion about the substance and circumstances of the 1987 amendment to Art. 42.08, see Cook v. State, 824 S.W.2d 634 (Tex. App.—Dallas 1991, pet. ref’d). In Cook the Court of Appeals traced the history of Art. 42.08 and concluded that the 1987 amendment changed the law and allowed Texas sentences to be cumulated with federal and out-of-state sentences. This Court refused the petition for discretionary review in Cook with a disclaimer opinion on another ground. Cook v. State, 828 S.W.2d 11 (Tex.Cr.App.1992). Neither Appellant nor the State questions whether the court of appeals in Cook properly construed the amendment, and therefore that issue is not before us today.

2 . The State argues that the application of Article 42.08(a) in this cause does not violate the Ex Post Facto Clause, citing McDonald v. Lee, 217 F.2d 619 (5th Cir.1954), vacated, 349 U.S. 948, 75 S.Ct. 893, 99 L.Ed. 1274 (1955) (remanded to district court to dismiss as moot). In that case, a soldier was court-martialed and sentenced. While serving that sentence, he was court-mart-ialed and sentenced for another offense. After his first sentence was assessed, but before he was court-martialed for the second offense, an Army regulation was adopted requiring the second sentence to interrupt the service of the first sentence. Under the regulation, after the prisoner served the second sentence, service of the first sentence was to resume. The Fifth Circuit Court of Appeals held that the regulation did not increase the punishment for the earlier offense, and it had no ex post facto effect. McDonald v. Lee, in F.2d at 625.

However, the Fifth Circuit addressed the potential ex post facto application of the Army regulation on the first sentence, not on the second sentence. Furthermore, the Fifth Circuit’s holding is inconsistent with this Court’s opinion in Basden.