Ex parte Cooke
WR-81,360-01
Case Summary written by Jordan Stevens, Staff Member.
PRESIDING JUDGE KELLER delivered the opinion of the Court in which JUDGES KEASLER, HERVEY, ALCALA, RICHARDSON, YEARY, and NEWELL joined. JUDGE JOHNSON concurred. JUDGE MEYERS dissented.
In 1999, Derrick Keith Cooke was convicted of family-violence assault in New Mexico. Cooke was then indicted for family-violence assault in Tarrant County and his New Mexico conviction was used to enhance the Tarrant County offense to a third-degree felony. On October 31, 2002, Cooke pled guilty in that case and was placed on deferred adjudication for five years in accordance with a plea agreement. On August 1, 2007, while still on deferred adjudication, Cooke was indicted in Hood County for family-violence assault. The indictment cited the proceedings from October 31, 2002 to enhance the charged alleged in the indictment. Because Cooke committed the Hood County offense, his guilt was adjudicated in the Tarrant County case on January 3, 2008 and he received a three-year prison sentence. Cooke was convicted in the Hood County case and was sentenced to eight years in prison.
Cooke filed an application for writ of habeas corpus under Texas Code of Criminal Procedure article 11.072 in the Tarrant County case, but it was denied. Cooke then appealed his convictions from the Tarrant County and Hood county cases and appealed the denial of his article 11.072 habeas application. Cooke claimed that his New Mexico conviction could not be used for enhancement purposes because it was a deferred adjudication, which he claimed was an ex post facto violation. On June 11, 2011, Cooke attacked his Tarrant County conviction by filing another habeas application, this time under Texas Code of Criminal Procedure article 11.07. Cooke claimed that the Tarrant County sentence was illegal because the New Mexico conviction, being from out of state, could not be used to enhance his indictment in the Tarrant County case. Cooke also alleged that his attorney was ineffective for failing to raise this issue and that his plea was involuntary.
On May 1, 2014, after acknowledging that Cooke was facing collateral consequences as a result of his Tarrant county conviction but that Cooke was scheduled to discharge his sentence in the Tarrant County Case on March 11, 2013, the habeas court recommended denying relief. The Texas Court of Criminal Appeals then remanded the case for further investigation and supplemental findings. The habeas court concluded that Cooke’s New Mexico conviction could not be used to enhance the Tarrant County offense and, therefore, the Tarrant County sentence was illegal and recommended vacating Cooke’s conviction. The habeas court also held that Cooke’s ineffective assistance of counsel claim was without merit. The Texas Court of Criminal Appeals then set the application in this case for submission to determine whether Cooke was suffering collateral consequences because if the Tarrant County offense had not been elevated to a third-degree felony, it could not have been used to enhance the charge in the Hood County case.
Issue: Was Cooke suffering collateral consequences as a result of the Tarrant County conviction?
The Texas Court of Criminal Appeals began by discussing article 11.07 and noted that an applicant must be in “confinement” as result of conviction to be entitled to post-conviction relief. “Confinement” is defined by the Texas Code of Criminal Procedure as “confinement for any offense or any collateral consequence resulting from the conviction that is the basis of the instant habeas corpus.” Because Cooke had discharged his sentence in the Tarrant County case, the court held that he would only be entitled to relief under article 11.07 if he were suffering collateral consequences as a result of the conviction that is the basis of the instant habeas corpus. The court turned its attention to the enhancement of the Hood County offense because that was the only collateral consequence the parties alleged.
At the time of Cooke’s Texas offenses and today, the repeated-offender scheme for family violence assault is a two-strikes system. The first offense is treated as an ordinary Class A misdemeanor, but the second offense can be punished as a third-degree felony. Deferred adjudication can be used to enhance a subsequent offense. This was part of the statute when Cooke pled guilty to the Tarrant County offense so it could be used to enhance the Hood County offense. Therefore, the prohibition against ex post facto laws would not have been violated even if the deferred adjudication in the Tarrant County Offense had been successfully completed. The court noted that the definition of “previously convicted” in § 22.01(b)(2) of the Texas Penal Code was different than the definition of “conviction” found in the habeas statute, which does not include any kind of deferred adjudication or probation.
The court concluded that Cooke was correct in stating that the New Mexico conviction could not be used to enhance the Tarrant County offense because of the “under this section” language in the statute. However, the court did not agree with Cooke that the enhancement of the Hood County case was a collateral consequence of the Tarrant County conviction. This was because it was clear from the Hood County indictment that the prior conviction used for enhancement was the deferred adjudication, which is not the conviction Cooke was challenging in the habeas proceeding. Furthermore, even if Cooke had successfully completed his period of deferred adjudication and had never been adjudicated, Cooke’s Tarrant County deferred adjudication would still have been available to enhance the Hood County offense. If that had been the case, Cooke would not have been entitled to relief under article 11.07 because he would not have a final conviction. The court dismissed Cooke’s habeas application because the Hood County enhancement was not a collateral consequence of the Tarrant County conviction, which Cooke was challenging. The court also acknowledged, but did not discuss, the “substantial argument” that could be made that Cooke’s acceptance of the benefits of the Tarrant County adjudication would estop him from challenging its use in enhancing the Hood County offense.