March 2, 2018

Texas Court of Criminal Appeals

Ex parte Pue

No. WR-85,447-01               2/28/18


Is the finality of a prior out-of-state conviction for enhancement purposes determined under Texas law?


Yes. There is no authority allowing out-of-state law to control punishment enhancement in Texas. It would be impractical for Texas courts to use another state’s law to dictate whether a conviction is final for use under Texas law. “We will not require a Texas trial court to sort through the nuances of forty-nine other states’ enhancement laws, some of which may have no similarities with Texas enhancement requirements.” Here, the prior conviction in California resulted in a probated sentence, which the defendant was still serving at the time of sentencing in the Texas case. A probated sentence is not considered a final conviction under Texas law; it is irrelevant whether it is considered final under California law. Read opinion.

Concurrence (Keller, P.J.):

While Texas law should control when determining the finality of an out-of-state conviction, the court should not grant relief on an “illegal sentence” claim without first addressing the propriety of doing so, as advocated by the dissent. However, the defendant also raised an ineffective assistance of counsel claim that would have been successful because the prior conviction was not final under either Texas or California law. The Court should hold “that counsel was deficient for failing to challenge the use of this conviction for enhancement purposes, and Applicant was prejudiced because his thirty-year sentence exceeds the maximum punishment allowed for his offense.” Read opinion.

Concurrence (Keel, J.):

The dissent misapplies the cases relied upon in its opinion. Limiting habeas relief to cases in which the sentencing error was not apparent from the direct appeal record would unjustly prevent even “direct claims” of illegality, distinguished by the dissent, as proper for first-time challenge on a habeas writ. Any sentence outside the range of punishment is illegal and must remain open to challenge even for the first time on a habeas writ. Read opinion.

Dissent (Yeary, J.):

The Court should address the propriety of reaching the merits of the claim when first raised in a post-conviction habeas proceeding. The defendant’s claim is not a direct claim that the sentence is illegal, but rather that a preliminary error prior to the imposition of the sentence rendered the sentence illegal. The Court has never specifically addressed whether the error of using a non-final prior conviction for enhancement requires a contemporaneous objection to preserve error or must be addressed on direct appeal. “The Court should not grant relief in a post-conviction proceeding on a claim of improper enhancement without first also addressing, if necessary, whether that claim is forfeited because it was not raised on direct appeal.” Read opinion.


This is a significant change in sentencing law. The Court reconciled a number of its prior opinions and overruled several courts of appeals opinions in reaching this result. Given the differences in nomenclature and records among the several states, this decision may benefit offenders who would be considered habitual had they been sentenced to Huntsville rather than Sing Sing or Folsom. Also interesting was the Court made this change in the law in a rare, substantive habeas opinion.

Texas Courts of Appeals

Webb v. State

No. 06-17-00066-CR        2/22/18


May a lay witness testify that, in her opinion, the victim was genuinely afraid and hysterical after the reported assault?


Yes. Although a lay witness may not testify as the to the victim’s truthfulness, she may testify about the victim’s mental state or emotional condition. Asking the witness whether the victim was “putting on a show” is eliciting testimony about the victim’s mental state, not about the victim’s credibility or truthfulness. Read opinion.


“Q: Was that child putting on a show that night? A: No, ma’am, she was not.” A different panel on a different court might rule another way on this question and answer, especially in light of many cases finding error where prosecutors asked questions seeking opinions on credibility of witnesses or variations on credibility, such as believability, reliability, etc. The Court went further and determined that, even if erroneously admitted, the defendant suffered no harm.

Estrella v. State

Nos. 01-16-00938-CR & 01-17-00162-CR                2/27/18


Does the offense of injury to a child require a specific manner and means?


No. Injury to a child is a result-of-conduct offense and the focus is on the resulting injury, not how it was caused. It is sufficient to prove that the defendant did “something,” or failed to do “something,” which resulted in serious bodily injury. The manner and means are not elements that the jury must find unanimously. Inclusion of the word “timely” (“failing to seek and provide timely and necessary medical attention to the complainant”) is not error because the court is not restricted to the terms found in Penal Code §22.04 when describing the manner and means of the offense in the jury charge. Read opinion.


The manner and means of the offense alleged in the indictment was that the defendant caused the injury by a failure to “timely” seek medical treatment for the victim. The Court’s opinion does not make clear that the word “timely” was included in the indictment, but the briefs available on the Court’s website do make that clear. In many offenses, the State will allege manners and means using language that is not found in the Penal Code—the defense argument is this case ran counter to decades of practice under the Penal Code and Code of Criminal Procedure.