STATE V. EDMONDSON, 1991-NMCA-069, 112
N.M. 654, 818 P.2d 855 (Ct. App. 1991)
STATE OF NEW MEXICO, Plaintiff-Appellee,
vs.
ROBERT EDMONDSON, Defendant-Appellant
COURT OF APPEALS OF NEW MEXICO
1991-NMCA-069, 112 N.M. 654, 818 P.2d 855
May 28, 1991, Filed. As Corrected
Appeal from the District Court of Grant
County; V. Lee Vesely, District Judge.
Samantha Dunning, Santa Fe, New Mexico,
Attorney for Defendant-Appellant.
Tom Udall, Attorney General, Patricia
Gandert, Assistant Attorney General, Santa Fe, New Mexico, Attorneys for
Plaintiff-Appellee.
{1} Our opinion in this
criminal appeal has two parts. Because the issues treated in part II are of no
precedential value and are matters of concern to the parties only, part II will
not be published.
{2} Defendant was convicted
on two counts of issuance of worthless checks. He contends that the trial court
improperly enhanced his sentences as a habitual offender,
see NMSA 1978,
31-18-17 (Repl. Pamp. 1990), because the basis for the enhancement was a
probated Texas conviction that had been set aside by a Texas court. He argues
that the New Mexico habitual-offender statute does not permit the use of such a
conviction and that in any case such use is prohibited by Article IV, Section 1
of the United States Constitution, the Full Faith and Credit Clause, because
Texas law does not permit such convictions to be considered for
habitual-offender sentencing. We affirm.
{3} The question before us is
whether defendant's conviction by a Texas court constitutes a "prior
felony conviction" for purposes of the New Mexico habitual-offender
statute. That statute defines "prior felony conviction" as:
1. [A] conviction for a prior felony committed within New
Mexico whether within the Criminal Code or not; or
2. any prior felony for which the person was convicted other
than an offense triable by court-martial if:
(a) the conviction was rendered by a court of another state,
the United States, a territory of the United States or the commonwealth of
Puerto Rico;
(b) the offense was punishable, at the time of conviction, by
death or a maximum {*656} term of
imprisonment of more than one year; or
(c) the offense would have been classified as a felony in
this state at the time of conviction.
NMSA 1978, 31-18-17(A) (Repl. Pamp. 1990). There is no
dispute that a valid judgment of conviction for a felony punishable by
imprisonment of more than one year was entered against defendant by a Texas
court. That is all that is necessary under our statute.
{4} The complication in this
case is that defendant was placed on probation after his conviction. Upon
successful completion of his probation, the indictment against defendant was
set aside by a Texas court.
1
The conviction could not be considered under the Texas habitual-offender
statute.
See Ex parte Murchison, 560
S.W.2d 654 (Tex. Crim. App. 1978) (en banc). It does not follow,
however, that New Mexico court cannot use the conviction for purposes of our
habitual-offender statute.
{5} Defendant relies upon
State
v. Burk,
101 N.M. 263,
680 P.2d 980 (Ct. App. 1984). That case is
distinguishable. There had never been a conviction of Burk. Under Texas law,
Tex. Code Crim. Proc. Ann. art. 42.12, 3d(a) (Vernon 1979), he had been placed
on probation without any adjudication of guilt being entered. We noted,
"Texas courts hold that because no adjudication of guilt is entered, the
trial court's action in deferring proceedings is not deemed a
'conviction.'" 101 N.M. at 264, 680 P.2d at 981. In contrast, defendant
here was placed on probation after a judgment of conviction.
See Tex.
Code Crim. Proc. Ann. art. 42-12, §§ 3, 3a.
{6} The reason given by the
Texas courts for forbidding the use of a conviction such as defendant's for
habitual-offender sentencing is that such a conviction does not become
"final" unless and until the probation is revoked.
See Ex parte
Murchison. That use of the word "final," however, is
idiosyncratic. In some respects the conviction is treated as final. For
example, the defendant may appeal the conviction at the time he is placed on
probation, Tex. Code Crim. Proc. Ann. art. 42.12 8(b), and errors at the
original trial may not later be raised on an appeal from revocation of
probation.
See Whetstone v. State, 786 S.W.2d 361 (Tex. Crim. App. 1980)
(en banc);
Carnes v. State, 478 S.W.2d 940 (Tex. Crim. App. 1972).
Similarly, in
Dallas County Bail Bond Board v. Stein, 771 S.W.2d 577
(Tex. Ct. App. 1989), the court held that a probated conviction is final for
purposes of eligibility to be licensed as a bail bondsman. The court wrote:
By successfully fulfilling the terms of his probation, the
probationer is released from such disabilities at the expiration of the period
of probation. This release does not affect the finality of the conviction;
rather, it merely removes those legal disadvantages associated with such
conviction. Id. at 582 (citation and emphasis deleted).
{7} The conviction can even
be used for sentencing under the general sentencing statutes. Texas law
provides that despite dismissal of the charge the defendant's "conviction
or plea of guilty shall be made known to the court" if he is again
convicted of a crime. Tex. Code Crim. Proc. Ann. art. 42.12(7).
See Tex.
Code Crim. Proc. Ann. art. 37.07(3);
Glenn v. State, 442 S.W.2d 360, 362
(Tex. Crim. App. 1969);
McLerran v. State, 466 S.W.2d 287 (Tex. Crim.
App. 1971). In essence, when the Texas courts have spoken of a judgment of conviction
followed by probation as not being a "final conviction," they have
been saying only that the conviction cannot be used for purposes of the Texas
habitual-offender statute.
{8} In any event, there is no
requirement in New Mexico's habitual-offender law that a prior conviction be
"final."
Burk made no reference to
final convictions.
The court simply held, "There was no conviction." 101 N.M. at 265,
680 P.2d at 682. Nor is there support elsewhere in our law for a requirement of
finality. The New Mexico
{*657} habitual-offender
statute contains no language stating that a conviction must be final before it
can be considered for habitual-offender sentencing. No reported case has so
interpreted the statute. On the contrary,
State v. Tipton,
77 N.M. 1,
419 P.2d 216 (1966), permitted use of a non-final conviction. The court held
that a guilty plea by itself constituted a conviction that could be used
pursuant to the habitual-offender statute, even though sentence had not been
imposed on the plea.
Accord Padilla v. State,
90 N.M. 664,
568 P.2d 190
(1977). Under New Mexico law a guilty plea is not "final." An appeal
can be taken only after entry of judgment.
See NMSA 1978, 39-3-3 (Orig.
Pamp.).
{9} The simple fact of the
matter is that defendant was convicted under the laws of the State of Texas. If
we are to ignore that conviction for purposes of the New Mexico
habitual-offender statute, it must be because either (1) the New Mexico statute
does not permit the use of a conviction in circumstances such as in this case
or (2) even if New Mexico would otherwise use the conviction, New Mexico
incorporates the law of the state where the conviction was entered and will
consider only those convictions that can be used under the habitual-offender
statute of that state.
{10} The first possibility is
foreclosed by New Mexico precedent. Our supreme court has held that a pardon
does not prevent the use of a prior conviction for habitual-offender sentencing
in New Mexico.
Shankel v. Woodruff,
64 N.M. 88,
324 P.2d 1017 (1968).
More directly in point, in
Padilla our supreme court permitted use of a
prior New Mexico conviction even though the charge was later dismissed after
successful completion of a deferred sentence. We see no principled way to
distinguish the circumstances in these cases from what happens in Texas upon
successful completion of probation, as described above in
Dallas County Bail
Bond Board vs. Stein. The Texas court's action was taken for rehabilitative
reasons, not because of any question regarding defendant's guilt.
2 Nothing in our habitual-offender
statute would permit a distinction between (1) a pardon or a dismissal after a
deferred sentence and (2) the action taken by the Texas court.
{11} As for the possibility,
that New Mexico incorporates the law of the state of conviction, the language
of the New Mexico habitual-offender statute does not suggest that when
considering a conviction from another state, New Mexico will defer to the other
state's determination that the conviction should not be used for
habitual-offender purposes. Our statute does not require that the state where
the offense occurred have a habitual-offender sentencing scheme (in the absence
of which
no conviction could be used for habitual-offender sentencing in
that state), or that the particular felony involved is one that can be used for
habitual-offender sentencing in the other state.
See State v. Calvin,
244 Or. 402, 418 P.2d 821 (1966) (Oregon can use California forgery conviction
even though California did not permit forgery to be used as a predicate offense
in a habitual-criminal charge). In
Shankel our supreme court strongly
endorsed the analysis and rationale of the California Supreme Court's decision
in
People v. Biggs, 9 Cal. 2d 508, 71 P.2d 214 (1937), and adopted that
opinion's observation that convictions are to be included within the general
provisions of a habitual-offender statute unless they are expressly excluded by
the statute. 64 N.M. at 93-94, 324 P.2d at 1020. It is of particular even
though (a) the conviction had been pardoned and (b) under Texas law at the
time,
Scrivnor v. State, 113 Tex. Cr. R. 194, 20 S.W.2d 416 (1928), a
pardoned conviction could not be used for habitual-offender sentencing.
See
Biggs, 9 Cal. 2d at 514, 71 P.2d at 217;
Carlesi v. New York, 233
U.S. 51 (1914) (for purposes of habitual-offender sentencing, state may use
federal conviction pardoned
{*658} by
president).
But see People v. Terry, 61 Cal. 2d 137, 390 P.2d 381, 37
Cal. Rptr. 605 (en banc) (Oklahoma pardon given same effect in California that
it would have in Oklahoma),
cert. denied, 379 U.S. 866 (1964),
rejecting
sub silentio, People v. Dutton, 9 Cal. 2d 505, 71 P.2d 218,
appeal
dismissed, 302 U.S. 656 (1931). Also persuasive is that the federal courts
have repeatedly permitted expunged state convictions to serve as the predicate
offenses for possession of a firearm by a convicted felon.
See, e.g., United
States v. Gray, 692 F.2d 352 (5th Cir. 1982).
{12} The rule of lenity does
not compel us to defer to Texas law. The United States Supreme Court recently
wrote of the rule as follows:
We have repeatedly "emphasized that the 'touchstone' of
the rule of lenity 'is statutory ambiguity.'" Bifulco v. United States,
447 U.S. 381, 387 (1980), quoting Lewis v. United States, 445 U.S. 55,
65 (1980). Stated at this level of abstraction, of course, the rule
"provides little more than atmospherics, since it leaves
open the crucial question--almost invariably present--of how much
ambiguousness constitutes... ambiguity." United States v. Hansen,
249 U.S. App. D.C. 22, 30, 772 F.2d 940, 948 (1985) (Scalia, J.) (emphasis
added), cert. denied, 475 U.S. 1045 (1986).
Because the meaning of language is inherently contextual, we
have declined to deem a statute "ambiguous" for purposes of lenity
merely because it was possible to articulate a construction more narrow
than that urged by the Government. See, e.g., McElroy v. United States,
455 U.S. 642, 657-658 (1982). Nor have we deemed a division of judicial
authority automatically sufficient to trigger lenity. See, e.g., United
States v. Rodgers, 466 U.S. 475, 484 (1984). If that were sufficient, one
court's unduly narrow reading of a criminal statute would become binding on all
other courts, including this one. Instead, we have always reserved lenity for
those situations in which a reasonable doubt persists about a statute's
intended scope even after resort to "the language and structure,
legislative history, and motivating policies" of the statute. Bifulco
v. United States, supra, at 387; see also United States v. Bass, 404
U.S. 336, 347 (1971) (court should rely on lenity only if, "after 'seizing
every thing from which aid can be derived,'" it is "left with an
ambiguous statute," quoting United States v. Fisher, 2 Cranch 358,
386 (1805) (Marshall, C.J.)).
111 S. Ct. 461, 465 (1990) (emphasis in Moskal).
{13} The rule of lenity as so
defined is of no assistance to defendant here. The chief purposes of
habitual-offender statutes are (1) the deterrent/rehabilitative purpose of
discouraging those who have previously committed serious crimes from engaging
in similar conduct within New Mexico and (2) the punitive/protective purpose of
incarcerating for a longer period of time those who have shown a repeated
inclination to commit serious offenses. In consonance with those purposes our
supreme court has not read exceptions into the broad language of the
habitual-offender statute. As already noted,
Shankel adopted the view
that convictions coming within the general provisions of the New Mexico statute
are included unless expressly excluded.
{14} We see no compelling reason
to read an exception into our statute for Texas convictions such as
defendant's. Indeed, it is unclear what policy would be advanced by doing so.
Once the former Texas offender commits a new offense in New Mexico, he has
demonstrated the failure of rehabilitation. How does it encourages
rehabilitation to tell someone that if he commits another offense, the penalty
will not be as harsh as it might have been? It would seem that rehabilitation
would be encouraged more
{*659} by
increasing
the penalty for one who has had a prior conviction pardoned or expunged. And
certainly one who has obtained a deferred sentence under Texas law is every bit
as deserving of increased punishment as one whose sentence was not deferred.
The United States Supreme Court suggested as much in the concluding sentence of
Carlesi
Indeed, we must not be understood as intimating that it would
be beyond the legislative competency to provide that the fact of the commission
of an offense after a pardon of a prior offense, should be considered as adding
an increased element of aggravation to that which would otherwise result alone
from the commission of the prior offense.
{15} Texas itself is
ambivalent about the use of a probated conviction for purposes of sentencing for
offense committed later. Although an unrevoked probated conviction cannot be
used under that state's habitual-offender statute, such convictions are to be
considered by the judge or jury imposing sentence within the broad ranges
allowed by Texas law.
See Glenn v. State; McLerran v. State;
Mays v.
Estelle, 505 F.2d 116 (5th Cir. 1974). For a first-degree felony the range
of punishment is five years to ninety-nine years, Tex. Penal Code Ann. 12.32
(Vernon 1974); for a second-degree felony the range is two years to twenty
years,
id. 12.33; and for a third-degree felony the range is two years
to ten years.
Id. 12.34. Theoretically, a conviction of a charge that
had been dismissed could result in a sentence being increased from five years
to ninety-nine years, a substantially greater differential than would occur
under New Mexico's habitual-offender statute.
{16} The sole purpose, other
than lenity for the sake of lenity, we can see that could be served by refusing
to use the probated conviction for habitual-offender sentencing is
encouragement of plea bargaining. An accused may be more likely to plead guilty
to an offense if the conviction could not be used for habitual-offender
sentencing in the future. This purpose may be legitimate, but it should not
override New Mexico public policy.
{17} In short, nothing in the
language of the New Mexico habitual-offender statute, no policy implicit in the
statute, not even any substantial policy of the State of Texas, suggests that
defendant's conviction should not be used under New Mexico's habitual-offender
statute. In that circumstance, the rule of lenity has no application.
{18} Finally, a contrary
result is not compelled by the Full Faith and Credit Clause.
{19} It is not at all clear
that the Full Faith and Credit Clause applies to criminal matters.
See
Nelson v. George, 399 U.S. 224 (1970) (state not required to enforce penal
judgment of sister state);
Huntington v. Attrill, 146 U.S. 657 (1892)
(suggesting that state cannot enforce penal judgment of another state,
including one for a monetary penalty).
But see Farmland Dairies v. Barber,
65 N.Y.2d 51, 478 N.E.2d 1314, 489 N.Y.S.2d 713 (1985) (full faith and credit
requires New York to abide by New Jersey criminal judgment stating that it
could not be used in civil proceeding). Even assuming that it does, we believe
that it would rarely, if ever, compel one state to be governed by the law of a
second state regarding the punishment that can be imposed for a crime committed
within the first state's boundaries. As the United States Supreme Court said in
a somewhat difference context, "Full faith and credit does not
automatically compel a forum state to subordinate its own statutory policy to a
conflicting public act of another state; rather, it is for this Court to choose
in each case between the competing public policies involved."
Hughes v.
Fetter, 341 U.S. 609, 611 (1951) (Wisconsin must recognize Illinois cause
of action for wrongful death).
{20} A state cannot express
its public policy more strongly than through its penal code. When a state
defines conduct as criminal and sets the punishment for the offender, it is
conveying in the clearest possible terms its view of public policy. Full faith
and credit ordinarily should not require a
{*660}
state to abandon such fundamental policy in favor of the public policy of
another jurisdiction.
{21} For example, perhaps the
most compelling judgment by another jurisdiction would be a verdict of
acquittal in a criminal trial. Yet full faith and credit does not bar a state
from prosecuting a person for violation of its own statute despite an acquittal
by another jurisdiction on a charge of the identical conduct.
See Turley v.
Wyrick, 554 F.2d 840 (8th Cir. 1977) (state and federal robbery charges),
cert.
denied, 434 U.S. 1033 (1978);
cf. Heath v. Alabama, 474 U.S. 82
(1984) (under dual-sovereignty doctrine, two states can punish defendant for
same offense without violating Double Jeopardy Clause).
{22} Even when a state's
criminal laws are not involved, full faith and credit does not require the
state to recognize expungement of a conviction by the state in which the
conviction was rendered. In
Ballard v. Board of Trustees of Police Pension
Fund, 452 N.E.2d 1023 (Ind. Ct. App. 1983), the police pension fund board
discontinued Ballard's pension pursuant to a statute permitting such action if
the pensioner was convicted of a crime constituting a felony. The felony had
been committed in Arizona. An Arizona court had entered an order setting aside
Ballard's conviction and restoring his civil rights. The Indiana court affirmed
the action of the pension fund board, stating: "It is the declared public
policy of Indiana that police pensioners who are convicted of a felony may have
their pension benefits terminated.... The Full Faith and Credit clause does not
require a state to apply another state's law in violation of its own legitimate
public policy."
Id. at 1026;
see White v. Thomas, 660 F.2d
680, 685 (5th Cir. Nov. 1981) (expungement of California court record did not
prohibit Texas sheriff from firing deputy for failing to disclose California
detention in his employment application),
cert. denied, 455 U.S. 1027
(1982);
Thrall v. Wolfe, 503 F.2d 313 (7th Cir. 1974) (full faith and
credit did not prohibit IRS from denying firearm license to person whose prior
state conviction had been pardoned).
But see Farmland Dairies v. Barber.
{23} Turning to
habitual-offender statutes in particular, the deterrent and punitive purposes
of those statutes argue strongly in favor of upholding their provisions against
any challenge under the Full Faith and Credit Clause. Thus, it is not
surprising that other jurisdictions have determined that the clause does not
prevent a state from using as a predicate offense for its habitual-offender
statute an offense in another state that has been pardoned,
see United
States v. Maroney, 373 F.2d 908 (3d Cir. 1967);
Groseclose v. Plummer,
106 F.2d 311 (9th Cir.),
cert. denied, 308 U.S. 614 (1939), or that
could not be used for habitual-offender sentencing in the other state.
See
State v. Calvin; People v. Dippolito, 88 A.D.2d 211, 452 N.Y.S.2d 655
(1982) (New York could use for habitual-offender sentencing a California
conviction for burglary that would be felony in New York but was misdemeanor in
California).
But cf. People v. Willis, 79 A.D.2d 1036, 435 N.Y.S.2d 38
(1981) (without reference to Full Faith and Credit Clause, New York court
refuses to use for habitual-offender sentencing a Texas offense that, because
charge was dismissed, could not be used for such purposes in Texas). The
policies behind the decision of Texas not to use a probated conviction for
habitual-offender purposes, which have been analyzed above, are not so
compelling that full faith and credit requires that the Texas rule prevail over
New Mexico law.
{24} For the above reasons,
we affirm the habitual-offender enhancements of defendant's sentences.
DONNELLY, Judge (concurring in part; dissenting in part).
{26} I concur in the
majority's opinion, except as to the issue involving the propriety of enhancing
defendant's sentence under the New Mexico habitual criminal statute based upon
a prior criminal proceeding which was ordered dismissed and the conviction set
aside by the Texas court.
{27} Defendant contends that
the trial court improperly enhanced his New Mexico sentence as an habitual
offender relying upon an invalid prior Texas conviction.
See NMSA 1978,
§
31-18-17 (Repl.Pamp.1990). At the habitual criminal proceeding, defendant
introduced an exhibit consisting of an order from a Texas court discharging him
from probation and setting aside the Texas conviction which was relied upon by
New Mexico authorities to enhance his sentence in the present case. The exhibit
shows that the Texas court found that because defendant had "
satisfactorily completed one-third or two years of his probationary period, and
**** complied with all the terms and conditions of said probation":
[T]hat the Judgment of Conviction heretofore
entered against the defendant in this case be, and the same is hereby set
aside, the indictment dismissed, * * * and the defendant is hereby released
from all penalties and disabilities resulting from the Judgment of Conviction
in this cause, and the arrest entry in this offense [shall] hereby be expunged.
[Emphasis added.]
{28} As evidenced by the
language of the order quoted above, the Texas court expressly directed that the
judgment of "conviction" be set aside. Thus, when the New Mexico
court sought to subsequently enhance defendant's sentence under the habitual
criminal statute, the Texas "conviction" relied upon by the
prosecution here had been vacated.
{29} The majority opinion
emphasizes that prior decisions of this state relating to our habitual criminal
statute draw a distinction between final judgment and sentence in a criminal
case and a "conviction" be set aside. Thus, when the New Mexico court
sought to subsequently enhance defendant's sentence under the habitual criminal
statute, the Texas "conviction" relied upon by the prosecution here
had been vacated.
{30} The majority opinion
emphasizes that prior decisions of this state relating to our habitual criminal
statute draw a distinction between a final judgment and sentence in a criminal
case and a "
conviction " adjudicating guilt, reciting that
since defendant was initially adjudged to be guilty of a felony in Texas
nothing "suggests that defendant's conviction should not be used under New
Mexico's habitual-criminal offender statute" to enhance defendant's
sentence in this state. I think this analysis is at odds with the Texas
judgment and ignores the fact that the order of the Texas court had not just
discharged defendant from proobation but expressly set aside defendant's Texas
"conviction" in another state amounts to a binding
"conviction" for purposes of enhancement of his sentence in New
Mexico conviction is inconsistent with
State v. Burk, 101 N.M. 263,
680
P.2d 980 (Ct.App.1984), and leads to an incorgruous application of New Mexico
law and attempts to breathe life into a Texas conviction which Texas courts
have directed be set aside.
{31} Padilla v. State,
90
N.M. 664,
568 P.2d 190 (1977), relied upon by the majority, is distinguishable
from the present case. There, defendant was convicted of a felony in a prior
New
Mexico criminal proceeding and a deferred sentence was imposed. Following
completion of probation the case was dismissed. The court held that the term
"conviction" as used in the deferred sentencing statute was a finding
of guilt and did not include the imposition of a sentence. In the instant case
the finding of guilt was ordered set aside by the Texas court.
{32} In Texas, a prior
probated sentence entered by a Texas court pursuant to an adjudication of guilt
is not available to enhance punishment for a subsequent offense unless the
defendant's probation has been revoked.
Domininque v. State, 787 S.W.2d
107 (Tex.Ct.App.1990) (prior probated sentence entered by Texas court is not a
final conviction and thus is not available to enhance punishment for a
subsequent offense unless probation has been revoked);
Rodgers v. State,
744 S.W.2d 281 (Tex.Ct.App.1987) (burden is on state to make a prima facie
showing that any conviction relied
{*662} upon
for enhancement of punishment became final prior to commission of the present
offense).
{33} This court has
previously recognized that Section 31-18-17(A)(2)(a) requires that a conviction
be rendered by a court of that state.
State v. Burk. In
Burk, a
Texas court issued an order of probation following the entry of a guilty plea.
This court looked to Texas law to determine the effect of the Texas proceeding
for purposes of New Mexico's habitual offender statute and affirmed the trial
court's decision not to enhance the defendant's sentence.
Id. The
Burk
court noted that because no adjudication of guilt was entered by the Texas
court, the court's action in deferring proceedings was not a
"conviction" for purpose of this state's habitual criminal statute.
Id.,
101 N.M. at 265, 680 P.2d at 982.
{34} The record reflects that
the Texas criminal conviction relied upon by the state in the instant case as a
basis for the enhancement of defendant's New Mexico sentence was dismissed by
the Texas court and his arrest record was ordered expunged. Absent a showing
that our state legislature, in adopting the provisions of this state's habitual
criminal statute, Section 31-18-17, intended that a prior conviction incurred
in a sister state and subsequently ordered set aside, may nevertheless serve as
the basis for enhancing a sentence imposed upon defendant in New Mexico, I
would apply the rule of lenity.
See State v. Keith, 102 N.M. 462,
697
P.2d 145(Ct.App.1985) (statutes authorizing a more severe punishment upon
conviction of a subsequent criminal offense are penal in nature and strictly
construed; doubts about the construction of penal statutes are resolved in
favor of the rule of lenity.) Thus, I believe that enhancement of defendant's sentence
in the present case based upon the Texas conviction for purposes of enhancement
of defendant's sentence under the provisions of Section 31-18-17 and exceeds
the scope of our habitual sentencing act.
{35} I would affirm
defendant's convictions but would remand the case for resentencing.
1
The court's order also "set aside" the judgment of conviction,
although the governing Texas statute does not provide for that specific relief.
See Tex. Code Crim. Proc. Ann. art. 42.12 7 (Vernon 1979) (may set aside
verdict or permit withdrawal of plea).
2
If a conviction has been set aside because of a concern about its validity--for
example, because of improper evidentiary rulings at trial--New Mexico could not
legitimately use the conviction for habitual-offender sentencing. See State
v. Moser, 78 N.M. 212, 430 P.2d 106 (1967).