Rodgers, Rodney Keith

IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
NO. WR-89,477-01
EX PARTE RODNEY KEITH RODGERS, Applicant
ON APPLICATION FOR A WRIT OF HABEAS CORPUS
CAUSE NO. 42593CR/A IN THE 443RD DISTRICT COURT
FROM ELLIS COUNTY
YEARY, J., delivered the opinion of the Court in which KELLER, P.J., and
KEASLER, HERVEY, RICHARDSON, KEEL, and SLAUGHTER, JJ., joined. WALKER, J.,
filed a concurring opinion in which NEWELL, J., joined.
OPINION
In this post-conviction application for writ of habeas corpus, Applicant alleges that
he was illegally sentenced for a felony driving-while-intoxicated (DWI) offense when he
should have been sentenced only for a misdemeanor DWI. We filed and set this case to
determine 1) whether Applicant is estopped from claiming that his sentence is illegal, and
2) whether the harm analysis that we have applied to claims of illegal enhancements
pursuant to Ex parte Parrott, 396 S.W.3d 531 (Tex. Crim. App. 2013), should extend to
enhancements that elevate an offense from a misdemeanor to a felony―also known as
jurisdictional enhancements. We hold that Ex parte Parrott applies and that Applicant has
RODGERS—2
not shown that he was harmed. We therefore deny relief on that basis without addressing
whether he is estopped from raising the claim.
I. FACTS AND PROCEDURAL HISTORY
Applicant was indicted for DWI. TEX. PENAL CODE § 49.04. Because his indictment
alleged at least two prior DWI convictions, the offense alleged was a third-degree felony.
TEX. PENAL CODE § 49.09(b)(2). The indictment went on to allege two additional prior
DWI convictions, both of which were also felonies, thus exposing Applicant to punishment
as a habitual-felony offender—raising the range of punishment to between 25 and 99 years
in the penitentiary or life. TEX. PENAL CODE § 12.42(d). 1 Applicant pled guilty pursuant to
1
In its entirety, the indictment read as follows:
IN THE NAME AND BY THE AUTHORITY OF THE STATE OF TEXAS:
The Grand Jurors, duly selected, organized, sworn and impaneled as such
for the County of Ellis, State of Texas, at the July 2017 Term of the 443rd Judicial
District Court for said County, upon their oaths present in and to said Court that on
or about March 09, 2017, and before the presentment of this indictment, in the
County and State aforesaid, RODNEY KEITH RODGERS did then and there
operate a motor vehicle in a public place while the said defendant was intoxicated;
And it is further presented in and to said Court that, prior to the commission
of the aforesaid offense (hereafter styled the primary offense), on November 10,
1999, in cause number F-9652378-IW in the 363rd District Court of Dallas County,
Texas, the defendant was convicted of an offense relating to the operating of a
motor vehicle while intoxicated; and on November 10, 1999, in cause number F-
9652378-HW in the 363rd District Court of Dallas County, Texas, the defendant
was convicted of an offense relating to the operating of a motor vehicle while
intoxicated;
**PUNISHMENT ENHANCEMENTS**
And it is further presented in and to said Court that, prior to the commission
of the aforesaid offense (hereafter styled the primary offense), on July 9, 2008, in
cause number F-0717649-R in the 265th District Court of Dallas County, Texas,
the defendant was convicted of the felony offense of Driving While Intoxicated 3rd
or More;
RODGERS—3
a plea agreement in which the State abandoned one of the prior convictions it had alleged
to obtain habitual-offender status, and Applicant thereby became punishable for a second-
degree felony. 2 TEX. PENAL CODE § 12.42(a). The convicting court admonished Applicant
about the range of punishment for a second-degree felony and then sentenced him, within
that range, to fifteen years in the penitentiary. Applicant did not appeal.
In this post-conviction application for writ of habeas corpus, Applicant argues that
his indictment only authorized the convicting court to sentence him for a misdemeanor
DWI. This Court remanded the application to receive a response from trial counsel and
findings of fact from the convicting court. Ex parte Rodgers, No. WR-89,477-01, 2019 WL
1271195 (Tex. Crim. App. Mar. 20, 2019) (not designated for publication). Having
received those things, we now know that the indictment charging Applicant with felony
DWI was flawed.
The State pled two prior DWI offenses as jurisdictional enhancements, raising the
level of the offense charged to a third-degree felony. Both of those prior jurisdictional
enhancements were alleged to have occurred on November 10, 1999. But the State made a
mistake in its allegation of the second jurisdictional prior DWI. It essentially alleged the
same prior DWI conviction cause number twice, as the jurisdictional-enhancement
And it is further presented in and to said Court that, prior to the commission
of the primary offense, and after the conviction in cause number F-0717649-R was
final, the defendant committed the felony offense of Driving While Intoxicated 3rd
or More and was convicted on April 5, 2013, in cause number F-1261763-M in the
194th District Court of Dallas County, Texas,
AGAINST THE PEACE AND DIGNITY OF THE STATE[.]
2
In his affidavit after remand, trial counsel states that “Applicant accepted the State’s offer to drop
one punishment enhancement paragraph and be sentenced to 15 years.”
RODGERS—4
convictions, with just a slight variation in the letters included at the end of each cause
number―F-9652378-IW and F-9652378-HW. The first jurisdictional prior DWI, alleged
as F-9652378-IW, reflected a genuine prior conviction entered against Appellant on
November 10, 1999. But there simply was no prior conviction under a cause number F-
9652378-HW.
In response to this Court’s remand order, Applicant’s trial counsel provided an
affidavit. In his affidavit, which the convicting court found to be credible, trial counsel
explained that his pre-trial investigation revealed that the State had used “an incorrect cause
number for one of the two DWI’s alleged for jurisdictional enhancement from
misdemeanor to a third-degree felony.” But he also learned that Applicant still had two
other prior DWI convictions that had not yet been alleged in the indictment: “Cause No. F-
9949146” and “Cause No. F-9553407.” 3 According to Applicant’s trial counsel, Applicant
was on probation in cause number F-9553407 when, on November 10, 1999, he was
convicted in cause number F-9949146, and his probation in cause number F-9553407 was
revoked that same day. Trial counsel believed that either one of those yet-unpled prior
convictions, or both, would have been available for use as jurisdictional enhancements, and
could have been alleged in place of the non-existent cause number F-9652378-HW in order
to raise Applicant’s present offense to a third-degree felony. 4
3
Applicant’s trial counsel’s affidavit does not include letters at the end of each of these cause
numbers, and other cause numbers as well, when it refers to them, and the trial court’s findings do
not include any reference to “Cause No. F-9553407,” but when the trial court’s findings reference
cause number “F-9949146,” the letters “-HW” are included at the end of that cause number.
4
Indeed, the record reflects that Applicant was previously convicted of at least five other felony
DWIs prior to his commission of the offense at issue in this case. In reverse temporal order, they
are: (1) cause number F-1261763-M—a felony DWI for which he was convicted on April 5, 2013,
that was alleged but abandoned by the State as part of its plea agreement with Applicant; (2) cause
RODGERS—5
Applicant’s trial counsel explained that, after he noticed that the State used an
incorrect cause number for one of the two DWIs alleged in the jurisdictional-enhancement
paragraph in Applicant’s indictment, he discussed with Applicant the possibility of filing
a motion to quash the indictment on account of the pleading mistake. But Counsel
concluded that filing a motion to quash the indictment would have been a “poor strategy”
because Applicant had at least two other prior DWI convictions that would have been
available to be substituted as jurisdictional-enhancement allegations. Applicant also had a
plea offer from the State in which the State agreed to abandon one of its two punishment-
enhancement paragraphs and seek only fifteen years’ confinement in return for a plea of
guilty to the charged offense. Counsel believed Applicant was aware that, if he objected to
the indictment, or if he rejected the State’s plea offer, the State might still have corrected
its pleading error before trial and amended its indictment to include a valid second prior
jurisdictional-enhancement DWI conviction. Ultimately, despite knowing about the flaw
in the indictment, Applicant decided to accept the State’s offer and plead guilty.
The convicting court found that Applicant’s present DWI could indeed have been
enhanced to a third degree-felony by substituting either cause number F-1261763-M (for
which Applicant was convicted on April 5, 2013, and which was alleged for the purpose
of punishment enhancement but abandoned by the State as part of its plea agreement with
number F-0717649-R—a felony DWI for which he was convicted on July 9, 2008, that was
ultimately used to enhance his punishment from a third-degree felony to a second-degree felony;
(3) cause number F-9949146-HW—a felony DWI for which he was convicted on November 10,
1999; (4) cause number F-9652378—a felony DWI which was properly alleged as one of
Applicant’s two prior jurisdictional enhancements, for which he was originally placed on probation
on December 12, 1996, and in which his probation was revoked and sentence was imposed on
November 10, 1999; and (5) cause number F-9553407—a felony DWI for which he was originally
placed on probation on February 14, 1996, and in which his probation was revoked and his
sentence was imposed on November 10, 1999.
RODGERS—6
Applicant), or cause number F-9949146-HW (for which Applicant was also convicted on
November 10, 1999), in place of the non-existent cause number F-9652378-HW that was
pled in the jurisdictional-enhancement paragraph of Applicant’s indictment. That finding
is supported by the record. Relying on Ex parte Parrott, then, the trial court concluded that,
“[b]ecause other valid convictions existed that could have properly enhanced Applicant’s
case, Applicant was not harmed by the allegation of an invalid conviction.”
II. COGNIZABILITY
Applicant claims that his sentence is illegal because his base offense was only a
misdemeanor, but he was sentenced as a felon. This Court’s precedent has held that a
defendant can “always” raise an illegal sentence claim, 5 including for the first time in an
initial application for writ of habeas corpus. 6 The Court explained in Mizell v. State that
“[a] sentence that is outside the maximum or minimum range of punishment is
unauthorized by law and therefore illegal.” 7 And the Court recognized in Ex parte Parrott
that a claim of illegal sentence based upon an invalid enhancement is cognizable in post-
conviction habeas corpus proceedings, but the Court held that such a claim is subject to a
harm analysis. 396 S.W.3d at 538. Because Applicant claims that he was sentenced for a
5
Mizell v. State, 119 S.W.3d 804, 806 (Tex. Crim. App. 2003) (“A trial or appellate court which
otherwise has jurisdiction over a criminal conviction may always notice and correct an illegal
sentence.”).
6
Ex parte Beck, 922 S.W.2d 181, 182 (Tex. Crim. App. 1996) (granting habeas corpus relief on a
claim that the applicant’s sentence exceeded the statutory maximum, observing that “[w]e have
long held that a defect which renders a sentence void may be raised at any time.”) (citing Heath v.
State, 817 S.W.2d 335, 336 (Tex. Crim. App. 1991)).
7
119 S.W.3d at 806.
RODGERS—7
felony when he could legally only have been sentenced for a misdemeanor, we conclude
that Applicant’s claim is cognizable.
III. SUBJECT MATTER JURISDICTION
Applicant argues that his sentence is illegal, and that he could only have been
convicted of a misdemeanor offense, because his indictment did not actually allege two
distinct jurisdictional prior DWIs. We filed and set his application to determine whether
our holding in Parrott still governs under these circumstances. The invalid prior conviction
in Parrott only raised the punishment level of the offense from a third-degree felony to a
second-degree felony. Id. at 533. It did not call into question the subject-matter jurisdiction
of the convicting court, as the flawed allegation here does. So, we must resolve today
whether crossing the divide between misdemeanor and felony subject-matter jurisdiction
affects the applicability of Parrott’s harm analysis. We hold that it does not.
Applicant voiced no objection to the indictment prior to pleading guilty. Indeed,
after receiving advice from counsel about the flaw in the indictment, he made a conscious
decision not to challenge the indictment. The indictment alleged that Applicant’s present
DWI was a felony because of the existence of two prior DWI convictions that were alleged
to have occurred on November 10, 1999. 8 On its face, it alleged a felony offense under
Section 49.09(b)(2) of the Penal Code. 9 Thus, the indictment was sufficient to vest the
8
This Court has held that Section 49.09(b) (pertaining to enhancement of a DWI to felony status)
“does not require the State to prove the prior convictions occurred sequentially.” Gibson v. State,
995 S.W.2d 693, 697 (Tex. Crim. App. 1999).
9
Section 49.09(b)(2) provides that “[a]n offense under Section 49.04 [Driving While Intoxicated]
. . . is a felony of the third degree if it is shown on the trial of the offense that the person has been
previously convicted . . . two times of any other offense relating to the operating of a motor vehicle
while intoxicated[.]” This Court has held that this provision constitutes a “jurisdictional
enhancement,” raising the offense from a misdemeanor, which is to be tried in a county court, to
RODGERS—8
district court with subject-matter jurisdiction. Ex parte Gibson, 800 S.W.2d 548 (Tex.
Crim. App. 1990).
In Ex parte Gibson, this Court held that, “if the instrument comes from the grand
jury, purports to charge an offense and is facially an indictment, then it is an indictment for
purposes of Art. V. § 12(b), and its presentation by a State’s attorney invests the trial court
with jurisdiction to hear the case.” Id. at 551. Because Applicant and his trial counsel raised
no objection to the indictment, they may not now challenge its efficacy to invoke the
jurisdiction of the district court. See TEX. CODE CRIM. PROC. art. 1.14(b) (“If the defendant
does not object to a defect, error, or irregularity of form or substance in an indictment . . .
before the date on which the trial on the merits commences, he waives and forfeits the right
to object to the defect, error, or irregularity and he may not raise the objection on appeal or
in any other postconviction proceeding.”); Studer v. State, 799 S.W.2d 263 (Tex. Crim.
App. 1990) (construing Article 1.14(b)); Kirkpatrick v. State, 279 S.W.3d 324, 329 (Tex.
Crim. App. 2009) (unobjected-to indictment alleged a misdemeanor and “lacked an
element necessary to charge a felony,” but it still conferred subject-matter jurisdiction on
the district court); Teal v. State, 230 S.W.3d 172, 182 (Tex. Crim. App. 2007) (unobjected-
to indictment failed to allege one of the two elements necessary to establish a felony offense
but vested subject-matter jurisdiction in the district court).
Furthermore, even errors that might affect jurisdiction are not automatically
insulated from a harm analysis. In Cain v. State, 947 S.W.2d 262, 264 (Tex. Crim. App.
a felony, which is to be tried in a district court. See Oliva v. State, 548 S.W.3d 518, 519 (Tex.
Crim. App. 2018) (“We have held that the existence of these two prior convictions is a
jurisdictional fact needed to establish felony status to make the DWI offense triable in district court
and is an element of that offense.”).
RODGERS—9
1997), the Court observed that jurisdictional errors are not “categorically immune” from
harmless error review. And, in Parrott, the Court applied “[t]he general rule . . . that an
applicant must show harm to obtain habeas relief” in the context of an illegal sentence
claim based on the improper use of a prior conviction to enhance punishment. 396 S.W.3d
at 534. The facts of Applicant’s case illustrate the ready susceptibility of his claim to a
harmless error analysis, as well as the general propriety of applying the rule that “an
applicant must show harm to obtain habeas relief[,]” id., even in the face of a claim that
may have a jurisdictional dimension. 10 An unobjected-to flaw in an indictment, even one
that might have potentially affected the district court’s subject-matter jurisdiction, will not
inevitably make a sentence—imposed after a plea to the indictment—illegal.
IV. HARM ANALYSIS
10
The concurrence contends that on the facts of this case we need not decide whether Parrott
should apply in the jurisdictional-enhancement context. It points to the fact that, even discounting
the improperly pled prior jurisdiction DWI conviction, there were still at least three valid prior
felony DWI convictions alleged in the indictment: the one properly-pled prior conviction alleged
for jurisdictional enhancement and the two prior convictions alleged specifically for punishment
enhancement. It suggests that those prior DWI convictions alleged in the indictment for purposes
of punishment enhancement could still be considered as jurisdiction-enhancing prior convictions,
even though they were alleged only—at least on the face of the indictment—as punishment
enhancements. Concurring Opinion at 3‒5. (Keep in mind that the State eventually abandoned one
of those two punishment-enhancing allegations pursuant to the plea bargain. Thus, there were
really only two prior felony DWI convictions alleged that were actually in play when Applicant
entered his guilty plea, and at least three would have been necessary, strictly speaking, in order to
justify a second-degree felony sentence.) The concurrence cites to no majority opinion from this
Court that says that a prior conviction plainly alleged as a punishment enhancement may
nevertheless be relied upon by the State as a jurisdictional enhancement. Instead, it relies on an
unpublished court of appeals opinion. See Concurring Opinion at 5 n.11 (citing Medina v. State,
No. 05-03-01193-CR, 2004 WL 1832888 at *3 (Tex. App.―Dallas Aug. 17, 2004, pet. ref’d) (not
designated for publication)). We did not specifically file and set this writ application to address
that question, and we do not. Perhaps it will come before us another day. Instead, we conclude
that, even assuming (without deciding) that jurisdiction is implicated, a Parrott harm analysis is
appropriate. And, in any event, even if it is correct that jurisdiction is not implicated in this case,
a straightforward Parrott harm analysis demonstrates that Applicant’s punishment range would
have been properly enhance-able from that of a third-degree felony to that of a second-degree
felony.
RODGERS—10
Parrott’s sentence was enhanced from a third-degree to a second-degree felony. Id.
at 533. On habeas, the convicting court learned that the prior conviction used to enhance
Parrott’s sentence was only a state-jail felony, and therefore could not properly have been
used to enhance his punishment to the level of a second-degree felony. Id. Still, the Court
denied relief because the habeas record revealed that Parrott, in fact, had other prior felony
convictions that the State could have properly used to enhance his sentence to the second-
degree felony range. Id. at 536.
The Court noted in Parrott that “no evidence” was presented during the habeas
corpus proceedings “revealing any impediment to the use of his [other] prior felony
convictions for enhancement purposes.” Id. It observed that Parrott entered into a plea
bargain agreement with the State to receive a sentence within the second-degree-felony
range, and he was properly admonished about that range of punishment, which was
“supported by his criminal history.” Id. at 537. And finally, the Court concluded that,
“[b]ecause the entirety of the record support[ed] a second-degree punishment, [Parrott]
ha[d] not shown that he was harmed by the error.” Id. All these considerations apply with
equal force to Applicant’s present habeas corpus proceedings. He entered into a plea
agreement to be punished as a second-degree felony offender in exchange for the State’s
relinquishment of the habitual-offender enhancement paragraph. He was properly
admonished about the range of punishment for a second-degree felony. And he received
the sentence he bargained for, which was well within the second-degree felony range. 11
11
See Parrott, 396 S.W.3d at 534 n.5 (“Applicant’s pleas of guilty and true enabled him to
receive the lesser punishment to which he agreed in his plea bargain.”).
RODGERS—11
Applicant argues that he was harmed because, although the State points to certified
copies of alternative judgments for DWI that it claims it could have relied on in place of
the non-existent cause number F-9652378-HW, it failed to introduce any evidence “to
prove the judgments were attributable to” him. He cites to this Court’s opinion in Flowers
v. State, 220 S.W.3d 919, 921 (Tex. Crim. App. 2007), for the proposition that the State
must prove beyond a reasonable doubt both 1) the existence of a prior conviction and 2)
that the defendant is linked to that conviction. But here, the convicting court made a finding
of fact that “Applicant was previously convicted of DWI 3rd or more on November 10,
1999, under cause number F-9949146-HW in Dallas County[,]” and that “[t]his conviction
could have been used to properly enhance Applicant’s case” from a misdemeanor to a
felony. The record supports this finding.
We have held that the evidence linking a defendant to a prior conviction may be
circumstantial, and the State may prove it “in a number of different ways[.]” Flowers, 220
S.W.3d at 921. In its original answer to Applicant’s writ application, the State included an
attachment that contained a certified copy of both the judgment and the indictment in cause
number F-9949146-HW. These reflect a DWI conviction for a person with the identical
name as Applicant (“Rodney Keith Rodgers”), and with a date of birth (“041468”) that
corresponds with the date of birth Applicant has set out in his writ application: April 14,
1968. As we observed in Flowers, “[a]lthough it is conceivable that there are two men”
with the same name and date of birth, “it is not likely.” 220 S.W.3d at 925.
What is more, trial counsel’s affidavit reflects that he was aware that Applicant had
been convicted of felony DWI in cause number “F9949146” in Dallas County on
November 10, 1999, as reflected in the judgment contained in the State’s attachment. Trial
RODGERS—12
counsel further asserted that Applicant “by his own admission while reviewing the
indictment knew he had been convicted of two separate DWI’s on the same date – the issue
was the cause number.” “A defendant may be linked to prior convictions through his own
admission.” Henry v. State, 509 S.W.3d 915, 919 (Tex. Crim. App. 2016) (citing Flowers,
220 S.W.3d at 921‒22). The circumstantial evidence in this case supports the convicting
court’s finding that the State could have utilized cause number F-9949146-HW in place of
the non-existent cause number F-9652378-HW to cross the jurisdictional divide from
misdemeanor DWI to third-degree felony DWI. As in Parrott, Applicant has shown no
impediment to the State’s use of an alternative prior conviction.
The Court in Parrott also addressed the argument that the applicant in that case may
have been harmed because of a lack of notice about the State’s potential use of the
alternative prior convictions to enhance his punishment to the second-degree felony range.
Id. at 537‒38. Observing that such notice need not appear in the charging instrument, the
Court concluded that Parrott had been given ample opportunity during the habeas
proceedings, once he learned that the State’s alleged prior conviction would not support
his enhancement, to challenge the validity of the alternative prior convictions. Id. He did
not take advantage of that opportunity. See id. at 538 (“Applicant has failed to contest the
State’s evidence that establishes that his actual criminal history supports the range of
punishment within which he was sentenced and properly admonished.”).
The same is true in Applicant’s case. In fact, the record reflects that trial counsel
informed Applicant that the State’s indictment was defective even before Applicant entered
his guilty plea. Applicant was also advised of the likely futility of raising that defect prior
to his plea. Trial counsel states in his affidavit that he informed Applicant that “at least two
RODGERS—13
other DWI convictions [cause numbers F-9949146 and F-9553407] were available without
[the State’s] having to use one of the two consecutive felony DWI convictions alleged in
the punishment enhancement paragraph.” With this knowledge, Applicant persisted in
accepting the State’s plea offer. He did not challenge those two prior convictions pre-trial,
despite his manifest awareness of their existence, nor has he attempted to challenge their
validity in any way in the instant habeas corpus proceedings. We are aware of no reason
that they could not have been substituted for the improperly alleged non-existent prior
jurisdictional-enhancement conviction. Under these circumstances, as in Parrott, we fail
to perceive how Applicant might have suffered from any notice defect.
V. CONCLUSION
We hold that the Parrott harmless error analysis applies in this case and that
Applicant has failed to meet his burden to show that he was harmed by the invalid
enhancement. Accordingly, we deny relief. Because we deny relief based on his failure to
show harm, we need not address whether Applicant was estopped from raising his illegal
sentence claim.
DELIVERED: April 8, 2020
PUBLISH