Dotson, Richard

IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
NO. WR-74,562-02
Ex Parte RICHARD DOTSON, Applicant
ON APPLICATION FOR A WRIT OF HABEAS CORPUS
CAUSE NO. 1192825-B IN THE 177TH DISTRICT COURT
FROM HARRIS COUNTY
KELLER, P.J., filed a dissenting opinion in which YEARY, KEEL, and
SLAUGHTER, JJ., joined.
Even assuming that Applicant’s conviction would have been reversed on appeal if appellate
counsel had raised the claim that one of the prior convictions that was actually used was ineligible,
I would hold that, under the Supreme Court’s decision in Lockhart v. Fretwell,1 Applicant has
suffered no prejudice because he has suffered no fundamental unfairness and giving him relief would
result in a windfall.
In Fretwell, the defendant claimed that his trial counsel performed deficiently by failing to
object to the use of a particular aggravating factor at the punishment stage of his death penalty trial.2
1
506 U.S. 364 (1993).
2
Id. at 367.
DOTSON- 2
The federal court of appeals held that prejudice had been established because, even though that court
had later overturned the judicial rule that prohibited use of that aggravating factor, the rule had not
yet been overturned at the time of trial, and the trial court would have sustained the objection if it
had been made.3 The Supreme Court reversed, holding that “focusing solely on mere outcome
determination,” in a prejudice analysis, “without attention to whether the result of the proceeding
was fundamentally unfair or unreliable, is defective.”4 Under Strickland v. Washington,5 setting
aside a sentence “solely because the outcome would have been different but for counsel’s error may
grant the defendant a windfall to which the law does not entitle him.”6
In Applicant’s case, one of the prior convictions that was pled did not support the sentencing
enhancement used at punishment, but Applicant had other prior convictions that would have
supported that enhancement. For this reason, Ex parte Parrott bars Applicant from prevailing on
a freestanding illegal-sentence claim on habeas corpus because the other prior convictions mean that
Applicant suffered no harm, since his sentence was supported by his actual criminal history.7
Applicant also cannot prevail on a claim that trial counsel was ineffective because, had trial counsel
pointed out that one of the convictions was ineligible, the State would have substituted an eligible
conviction for the ineligible one that was used, and so Applicant suffered no prejudice, because the
3
Id. at 368.
4
Id. at 369.
5
466 U.S. 668 (1984).
6
Fretwell, 506 U.S. at 369.
7
396 S.W.3d 531, 536-37 (Tex. Crim. App. 2013).
DOTSON- 3
outcome of the sentencing proceeding would not have been different.8 Applicant seeks to avoid a
no-prejudice finding by dismissing his claim of ineffective assistance of trial counsel and pleading
his claim as one of ineffective assistance of appellate counsel. But his inability to show prejudice
for a freestanding habeas claim or a trial-level ineffective-assistance claim points to the lack of
fundamental unfairness with respect to the enhancement issue, however it is presented: because his
actual criminal history supports the enhancement, any defect in pleading the enhancement is not
prejudicial. Moreover, if appellate counsel had raised the issue on appeal and obtained a reversal,
the only remedy would have been a new sentencing hearing at which the State could then offer the
eligible prior convictions for enhancement, affording the exact same punishment range available at
the original trial.9 There is no reason to think that his sentence in such a new sentencing
proceeding—where the exact same level of enhancement and punishment range would be available
—would be any different than the sentence he originally received.
As the Supreme Court said in Fretwell, “The result of the sentencing proceeding in the
present case was neither unfair nor unreliable.”10 Because Applicant’s actual criminal history
supports the enhancement that he was subjected to and the punishment range under which he was
punished, he has suffered no fundamental unfairness. A new punishment hearing with the same
punishment range would just be a second bite at the apple, and as such, a windfall. Consequently,
8
See Pelache v. State, 324 S.W.3d 568, 576-78 (Tex. Crim. App. 2010) (notice of
sentencing enhancement could be given at the sentencing stage of trial without violating due
process).
9
See McNatt v. State, 188 S.W.3d 198, 203-04 (Tex. Crim. App. 2006) (reversal on the basis
of untimely enhancement notice at initial trial does not preclude use of prior conviction for
enhancement in new sentencing hearing).
10
Fretwell, 506 U.S. at 371.
DOTSON- 4
under Fretwell, prejudice has not been shown.
I respectfully dissent.
Filed: March 16, 2022
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