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Click here for the full text of this decision FACTS:A grand jury indicted Randall Lee Roemer for the offense of driving while intoxicated. Following the advice of his attorney, Roemer stipulated to a prior conviction for involuntary manslaughter and pleaded guilty. Roemer stipulated to a 1990 conviction for involuntary manslaughter, and the state used this conviction to enhance his offense to a felony. Texas Penal Code �49.09 governs the enhancement of intoxication offenses. It states in part that the state may enhance a conviction for driving while intoxicated to a third-degree felony if a person has previously been convicted of the offense of intoxication manslaughter or an offense under the laws of another state that contains elements substantially similar to the elements of an offense under �49.08, Texas’ penal statute for intoxication manslaughter. Thus, Roemer stipulated to the enhancement of his sentence under �49.09(b)(1), and the trial court sentenced him to four years in prison. Roemer’s prior conviction, however, was not for intoxication manslaughter but for involuntary manslaughter under former Texas Penal Code �19.05(a)(2). The only mention of the statute under which a court in 1990 convicted Roemer is in �49.09(c)(1)(E), which defines the term “offense relating to the operating of a motor vehicle while intoxicated.” This term is used in �49.09(a) and is also used in �49.09(b)(2). However, the statute authors did not use that term in �49.09(b)(1), under which the court enhanced Roemer’s sentence to a felony. Roemer filed an application for a writ of habeas corpus alleging that his counsel was ineffective for stipulating to a prior involuntary manslaughter conviction for the purposes of enhancing his offense to a felony and, as a result, his sentence was illegal. HOLDING:The Court of Criminal Appeals granted Roemer’s application for a writ of habeas corpus. Analyzing the statute, the CCA found two situations in which �49.09 permits prior offenses relating to the operating of a motor vehicle while intoxicated to be used for enhancement. Only one of those situations applies in Roemer’s case, the court stated. First, the state may use a prior offense relating to operating a motor vehicle while intoxicated to raise an offense from a Class B misdemeanor to a Class A misdemeanor under �49.09(a). Second, if a defendant has two prior convictions for offenses relating to operating a motor vehicle while intoxicated, then the state may enhance his current offense to a third-degree felony under �49.09(b)(2). Therefore, the court found, because Roemer has only one prior conviction for an offense relating to operating a motor vehicle while intoxicated and does not have even a single conviction for intoxication manslaughter, the state may not enhance his offense to a felony. Instead, Roemer’s stipulation to a prior offense relating to operating a motor vehicle while intoxicated should have only raised his offense from a Class B misdemeanor with a minimum term of confinement of 72 hours to a Class A misdemeanor with a minimum term of confinement of 30 days under �49.09(a). Thus, the court held that Roemer’s current sentence was illegal. When the Legislature specifically instructs courts how to deal with an offense, courts should give effect to each word and follow their direction, the CCA stated. If differing treatment for similar offenses is not what the Legislature intended, the Legislature can alter the statute accordingly, the CCA stated. The state argues that Roemer is estopped from asserting a claim that his sentence is illegal, because he stipulated to the prior offense and pleaded guilty. But estoppel does not apply in Roemer’s case, the CCA stated, because there was no invited error in this case. Invited error is when a party asks for something, gets what he asks for and then complains about it, the CCA explained. Roemer, the court stated, did not commit invited error. He simply stipulated to a prior conviction that the state erroneously used to enhance his sentence to a felony when it should have been used only to enhance from a Class B misdemeanor to a Class A misdemeanor. The CCA also found that Roemer’s attorney did not provide ineffective assistance of counsel. Roemer’s attorney states that he intensively researched the issue of whether the state could use Roemer’s prior conviction to enhance his offense to a felony. He determined that the enhancement was proper based on an unpublished memorandum opinion by the 1st Court of Appeals in 2003′s Louviere v. State. On facts similar to Roemer’s case, Louviere allowed the use of a past involuntary-manslaughter conviction for enhancement purposes based on the determination of another 1st Court opinion, 1999′s Gowans v. State, 995 S.W.2d 787, which stated that although involuntary manslaughter under former Penal Code �19.05(a)(2) was modified into intoxication manslaughter, “the offense remained substantively the same.” Rather than advise his client that the enhancement was proper under Louviere, Roemer’s attorney could have argued that Louviere was incorrect, the CCA noted. Because the attorney’s decision was based on existing case law, however, the CCA held he did not render ineffective assistance in advising Roemer to accept the plea. OPINION:Meyers, J., delivered the opinion of the court, in which Keller, P.J., and Price, Womack, Keasler, Hervey and Holcomb, J.J., joined. CONCURRENCES:Keasler, J., filed a concurring opinion, in which Hervey, J., joined. “Although the statute is incongruous and appears to distinguish convictions solely by date of offense, established principles of statutory construction and separation of powers prevent this Court from”legislating from the bench’ to correct a perceived inconsistency in a statute. . . . I would urge the Legislature to take a close look at the results under a plain reading of Section 49.09 when considering the use of former Section 19.05(a)(2) for enhancement purposes.” Johnson, J., concurred in the result without a written opinion. DISSENT:Cochran, J., filed a dissenting opinion. “We interpret a statute according to the literal meaning of the words in the statute, unless doing so would lead to an absurd result that the legislature could not have intended. . . . I think we should give greater deference to the statutory purpose and not make a fortress out of the grammarian’s correction book. “I conclude that applicant’s DWI charge was properly enhanced with his 1990 involuntary manslaughter conviction. He is not serving an illegal sentence.”

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