Today the majority holds that a conviction becomes final the moment it is entered, before the time period for filing notice of appeal has expired. If the defendant subsequently files notice of appeal, that action will retroactively render his conviction non-final. But if he does not do so, his conviction remains final. In contrast, I would hold that a conviction, at the moment of its being entered, is just that - a conviction. It would not become a final conviction until the time period for appealing has expired.

Everyone agrees that, once notice of appeal is filed, a conviction is not final until the appellate court's mandate issues. The question is what to do with that "in-between" time period - the time period after conviction but before the deadline for appealing. The Court's rule creates a gray area for this time period, rendering a conviction's finality unclear. It can be final for part of this period and then become non-final retroactively. I believe a clearer rule would be for the conviction to remain non-final during this time period.

The issue before us can be illustrated with the following table and hypothetical case.

On March 1, four friends are all convicted for possessing drugs. Abe files a notice of appeal on March 3. Then all four decide to drive their cars on March 5. On March 7, Betty files a notice of appeal. Chris never does file a notice of appeal. Denise files a motion for new trial on March 31. All four of them then drive again on April 10. Denise eventually files a notice of appeal on April 15.

Who is guilty of driving with a suspended license on March 5? Under the Court's opinion, Abe, Betty, and Denise are not guilty, but Chris is. Abe is not guilty because he filed his notice of appeal before he drove. At the time he was driving, his drug conviction was pending on appeal and therefore was not final. Betty and Denise are not guilty, too. Although their drug convictions were "final" at the time they were driving on March 5, their convictions were retroactively rendered non-final by their later decisions to appeal. Chris is guilty. His conviction was final when he was driving and it remained final - he never took any action to appeal.

Who is guilty of driving with a suspended license on April 10? Under the Court's opinion, the result is the same. Abe and Betty are not guilty because their convictions were on appeal and therefore not final at the time they were driving. Denise is not guilty because her conviction was retroactively rendered non-final by her subsequent filing of notice of appeal. Chris is guilty because he never took any action to appeal, so his conviction remained final.

Under my rule, what would happen? With regard to March 5, nobody is guilty. The time for filing notice of appeal has not yet expired, so nobody has a final conviction and nobody is guilty of driving with a license suspended. With regard to April 10, only Chris is guilty. For Chris, the time for filing notice of appeal has expired, and he has done nothing to appeal his case, so his conviction became final. The other three are not guilty. Abe and Betty have cases on appeal, and Denise has taken action to extend the deadline for filing notice of appeal in her case.

No matter which rule we adopt, there will always be some inconsistencies. But the latter rule seems more consistent to me than the former. I see no rational basis for treating Betty and Chris differently on March 5. Both have convictions and neither has filed notice of appeal, yet Betty will be not guilty because she later files notice of appeal, and Chris will be guilty because he does not do so.

By treating them differently, the Court enables a defendant to change his guilt for an offense after the offense has been committed. Though guilty on March 5, Betty's actions on March 7 render her retroactively not guilty. This simply does not make sense to me. In the same way that a defendant should know, at the time of his actions, whether or not he is guilty of committing a crime, the State should also know, at the time of the defendant's actions, whether or not that defendant is guilty of a crime. There ought not be a way for a defendant's guilt to change after the fact. A criminal offense must be finite, not fluid, changing after the date of commission. The defendant cannot be guilty one day and then do something later which retroactively affects his guilt on the date in question. By giving defendants this power, the Court's rule encourages defendants to file frivolous notices of appeal after they are caught driving in order to render their prior convictions non-final. I would not adopt such a rule.

The Court's rule also results in there being no difference between a "conviction" and a "final conviction." Under my rule, all four defendants have a conviction on March 1, but nobody has a final conviction. Under the Court's rule, all four defendants have a conviction and a final conviction on March 1. Only later are some convictions rendered non-final. But it seems to me that, on the date of conviction, a defendant has just that - a conviction. There ought to be something extra required to convert a conviction into a final conviction. It should not simply "be" a final conviction immediately.

The practical effects of the majority's rule are this. Suppose the grand jury meets on March 6 and indicts Betty for driving with a suspended license on March 5. At the time the grand jury meets, the evidence demonstrates that Betty is guilty. Yet the next day, she files notice of appeal in her drug conviction, rendering that conviction non-final retroactively. As a result, she is no longer guilty of committing any offense on March 5, and the court acquits her of that offense on April 30. Then, six months later, Betty's drug conviction is affirmed and mandate issues. Her drug conviction is now final once again. She was, essentially, "guilty" of driving with a license suspended for a day, "not guilty" of that offense for six or seven months, and now she is guilty of it once again. This is true even though the facts of the offense - her driving a car on March 5 after being convicted on March 1 - never changed. Nevertheless, although she is now "guilty" once again, the State cannot re-prosecute her. Jeopardy attached from the first proceeding and she was properly acquitted under the majority's rule.

Suppose the trial court rejects Betty's defense and she is convicted on April 30 of driving with a suspended license. Her appeal in that case, for whatever reason, moves faster than her appeal of the drug conviction. The appellate court issues its opinion in four months, reversing her conviction of driving with a suspended license because her drug conviction was rendered non-final retroactively by the subsequent filing of notice of appeal. Then, two months later, the appeal in the drug conviction is affirmed. Once again, the drug conviction has become final and valid, but the driving with a suspended license conviction has been reversed on appeal anyway, and the State may not re-indict.

Given these possibilities, the practical effect of the Court's rule is that any wise prosecutor will wait to bring his allegations before the grand jury until the time period for filing notice of appeal has expired, so as not to run the risk of losing a perfectly valid conviction. And if this is the practical effect, then why not simply define a "final conviction" for purposes of the statute as not occurring until the time period for filing notice of appeal has expired?

Admittedly, my rule has some problems as well. The facts of this case indicate that DPS is routinely suspending drug defendants' drivers licenses upon their conviction. But under my rule, all four individuals in the hypothetical above are free to drive after their drug convictions for at least thirty days. If they file a notice of appeal or motion for new trial, their free-drive period is extended. My rule would require either the court or the prosecutor to inform DPS when a defendant's conviction becomes final. Rather than relying on the date of conviction, DPS would have to wait until it received notice that the conviction was final, and then suspend the driver's license. Although this would somewhat complicate matters, I cannot believe that this would create chaos in today's world of computers. Presumably, a computer program could be developed with relative ease which would notify DPS upon a conviction's becoming final.

Another potential problem with my rule is, as the majority points out, the fact that any given drug conviction will have a different date of finality depending on whether the defendant files a motion for new trial or is granted any extension of time. But this is not really any different than the majority's rule. Under the majority's rule, a defendant will be able to render his conviction non-final retroactively by filing either a notice of appeal or a motion for new trial within 30 days. His conviction will then be rendered final once again on some unknown date, depending on whether his motion for new trial is granted or denied, whether he files a notice of appeal from a denial of his motion for new trial, and how long the appellate court takes to dispose of the appeal. At least under my rule, it is clear that on March 5, nobody has a final conviction. There are no retroactive applications of subsequent actions which will change that status quo.

How far will the Court's definition go? Although the Court does seem to limit its new definition of finality to the statute before us today, Transportation Code § 521.372, ⁽¹⁾ I am nevertheless concerned that this definition will in the future be extended to other fact situations.

First, there are a number of other statutes in the Transportation Code which require the suspension of a driver's license upon final conviction. ⁽²⁾ It would seem that the Court's rule would apply to at least those statutes.

But what about enhancement provisions? In Jordan v. State, ⁽³⁾ delivered just last year, we stated that a prior conviction in which deferred adjudication had been granted was not a final conviction for purposes of Art. 42.12, § 15, because the defendant "still ha[d] time to file" a motion for new trial. The Court's opinion today conflicts with Jordan, so I am hopeful that it will be limited to the Transportation Code and not extended to cases involving enhancements.

What about habeas corpus? "After final conviction in any felony case," an individual may file an application for a writ of habeas corpus under Art. 11.07. ⁽⁴⁾ If applied to habeas, the Court's definition will allow an individual to file a habeas corpus application one day after his conviction, because his conviction becomes instantly final. Since jurisdiction in habeas corpus applications is determined at the time of filing, ⁽⁵⁾ we will have jurisdiction over the application. Then, if the defendant subsequently files notice of appeal, that notice will retroactively render his conviction non-final. What now? Have we lost jurisdiction retroactively? Or do we continue to have jurisdiction over a case which is now pending on appeal and no longer final? The majority's definition is problematic in any situation, but it becomes particularly troubling in habeas corpus. Surely the Court will not extend today's definition to that area of the law.

Perhaps the Court will attempt to limit today's definition to this particular section of the Transportation Code on the theory that this case involves the use of the phrase "final conviction" as an element of an offense. Because it is an element of an offense, this differentiates it from cases involving enhancement provisions and habeas corpus jurisdiction. But what about other offenses in which "final conviction" is an element? Presumably the Court's holding would apply to those statutes. Consider Penal Code § 46.04, involving possession of a firearm by a felon. Although that statute criminalizes possession of a firearm by one "who has been convicted of a felony," we have stated that this means a final conviction. ⁽⁶⁾ If today's rule is applied to § 46.04, a person could do the same thing with that offense as with driving with a suspended license. After being convicted of a felony on September 1, the person would be guilty of illegally possessing a firearm on September 2, because his conviction on September 1 was initially final. Then, on September 3, the person could file notice of appeal in the prior conviction, rendering it retroactively non-final and rendering himself retroactively not guilty of an offense under § 46.04. This just cannot be the law. It makes more sense to say that the prior conviction is not final until the time period for filing notice of appeal has expired. This gives the defendant a comprehensible time limit in which he will be permitted to engage in other conduct without being guilty of an additional offense and avoids changing the rules on either the defendant or the State in the middle of the game.

I believe Jones's conviction for marijuana possession was not final at the time that he drove his car on August 22, 1998. Therefore, I would conclude that the Court of Appeals was correct in finding the evidence of Jones's guilt insufficient. Because the majority concludes otherwise, I dissent.

DATE DELIVERED: June 19, 2002

PUBLISH

1. Ante, slip op. at 9.

2. See, e.g., Texas Transportation Code § 521.320 (providing for suspension of license one year after final conviction under Penal Code § 28.08); § 521.341 (providing for automatic license suspension on final conviction of various offenses); § 521.3465 (providing for automatic license suspension on final conviction of certain offenses); § 521.3466 (providing for automatic license revocation on final conviction involving fraudulent governmental records); § 521.349 (providing for automatic license conviction on final conviction under Penal Code § 31.03).

3. 36 S.W.3d 871, 876 n.35 (Tex. Crim. App. 2001).

4. Tex. Code Crim. Proc. Art. 11.07, § 3(a).

5. See Ex parte Brantley, 574 S.W.2d 567 (Tex. Crim. App. 1978).

6. Ramirez v. State, 527 S.W.2d 542, 544 (Tex. Crim. App. 1975) (interpreting previous version of statute, § 46.05, with same language as current statute).