In the Matter of L---- R

Board of Immigration AppealsFeb 18, 1957
7 I&N Dec. 318 (B.I.A. 1957)

A-8769665

Decided by Board September 4, 1956 Decided by Attorney General February 18, 1957

Conviction — Not final in Texas where sentence suspended until final conviction for "any other felony, pending the suspension of sentence" — Section 241 (a) (4), Immigration and Nationality Act.

Under Texas law, neither a verdict of conviction nor the judgment thereon becomes final where sentence is suspended until there has been a final conviction for "any other felony, pending the suspension of sentence." Hence, a conviction in Texas for knowingly attempting to pass a forged instrument lacks finality where sentence was suspended and there is no evidence of a subsequent felony conviction pending suspended sentence. Under the rule of Pino v. Landon, 349 U.S. 901, such a conviction is insufficient to support a charge of deportability under section 241 (a) (4) of the act.

CHARGE:

Order To Show Cause: Act of 1952 — Section 241 (a) (4) ( 8 U.S.C. 1251 (a) (4)) — Convicted of a crime involving moral turpitude (attempting to pass a forged instrument) committed within 5 years of entry and sentenced to confinement for 1 year or more.

BEFORE THE BOARD

(September 4, 1956)

BEFORE THE ATTORNEY GENERAL

(February 18, 1957)


Discussion: This case is before us on appeal from the decision of the special inquiry officer dated April 30, 1956, holding the respondent deportable on the above-stated charge. Respondent, a 20-year-old native and citizen of Mexico, last entered the United States at El Paso, Texas, on February 4, 1955.

Respondent was convicted on February 13, 1956, in the District Court, El Paso County, Texas, of knowingly attempting to pass a forged instrument (a forged check for $55.50) on January 6, 1956. Respondent was sentenced to two years' confinement at the state penitentiary with the sentence being suspended on recommendation of the jury "during good behavior of the defendant and during the period of imprisonment assessed by the court in accordance with the laws of the State of Texas."

The substantive crime involved is defined in the Texas Penal Code as follows:

Article 979. Forgery

He is guilty of forgery who without lawful authority, and with intent to injure or defraud, shall make a false instrument in writing purporting to be the act of another, in such manner that the false instrument so made would (if the same were true) have created, increased, diminished, discharged or defeated any pecuniary obligation, or would have transferred, or in any manner have affected any property whatever. [Emphasis supplied.]

Article 986 defines a written instrument to include a check.

Art. 996. Passing forged instrument

If any person shall knowingly pass as true, or attempt to pass as true, any such forged instrument in writing as is mentioned and defined in the preceding articles of this chapter, he shall be confined in the penitentiary not less than two years nor more than five years.

Since a general intent to defraud was required for a conviction under articles 979, 996, the test set out in Jordan v. DeGeorge, 341 U.S. 223 (1951), is applicable. In that case, the Supreme Court determined that an offense containing an inherent fraud element involves moral turpitude. Consequently, a conviction such as in the present case, is a conviction for a crime involving moral turpitude. Cf., United States ex rel. Robinson v. Day, 51 F. (2d) 1022 (C.C.A. 2, 1931); Baer v. Norene, 79 F. (2d) 340 (C.C.A. 9, 1935); Ponzi v. Ward, 7 F. Supp. 736 (D.C. Mass., 1934). See also Matter of P----, A-3181334, 6 IN Dec. 795 (B.I.A., 1955); Matter of B----, A-8437852, 6 IN Dec. 702 (B.I.A., 1955).

Furthermore, the relevant sections of the Texas Code of Criminal Procedure provide as follows:

Article 766. Judgment

A judgment is the declaration of the court entered of record, showing:

1. The title and number of the case.

2. That the case was called for trial and that the parties appeared.

3. The plea of the defendant.

4. The selection, impaneling and swearing of the jury.

5. The submission of the evidence.

6. That the jury was charged by the court.

7. The return of the verdict.

8. The verdict.

9. In the case of a conviction, that it is considered by the court that the defendant is adjudged to be guilty of the offense as found by the jury; or, in case of acquittal, that the defendant be discharged.

10. That the defendant be punished as has been determined by the jury.

Art. 767. Sentence

A "sentence" is the order of the court, made in the presence of the defendant, and entered of record, pronouncing the judgment, and ordering the same to be carried into execution in the manner prescribed by law.

Art. 778. Procedure as to suspended sentence

The court shall permit testimony as to the general reputation of defendant to enable the jury to determine whether to recommend the suspension of sentence, and submit the question as to whether the defendant has ever before been convicted of a felony; such testimony shall be heard and such question submitted only upon the request in writing by the defendant; provided, that in all cases sentence shall be suspended if the jury recommends it in their verdict. In such cases, neither the verdict of conviction nor the judgment entered thereon shall become final, except in the manner and at the time provided by the succeeding article. (Acts 1913, p. 8.)

Art. 779. Suspended sentence made final

1. Upon the final conviction of the defendant of any other felony, pending the suspension of sentence, the court granting such suspension shall cause a capias to issue for the arrest of the defendant if he is not then in the custody of such court, and during a term of the court, shall pronounce sentence upon the original judgment of conviction, and shall cumulate the punishment of the first with the punishment of any subsequent conviction or convictions, and in such cases no new trial shall be granted in the first conviction, nor shall the validity or finality of the first conviction be attacked by appeal or otherwise, and no right of appeal shall exist to test the validity of the judgment of conviction, sentence upon which was suspended.

2. Upon the final conviction of the defendant of any character or grade of the offenses of theft, embezzlement, swindling, conversion, theft by bailee, or any fraudulent acquisition of personal property, pending the suspension of sentence, the court granting such suspension may cause a capias to issue for the arrest of the defendant, if he is not then in the custody of such court, and during the term of the court may pronounce sentence upon the original judgment of conviction, and may cumulate the punishment of the first with the punishment of any subsequent conviction or convictions, and in such cases no new trial may be granted in the first conviction. The term "may," as herein used, shall not be construed to be mandatory.

Art. 780. Dismissal of charges

In any case of suspended sentence, at any time after the expiration of the time assessed as punishment by the jury, the defendant may make his written sworn motion for a new trial and dismissal of such case, stating therein that since such former trial and conviction he has not been convicted of any felony, which motion shall be heard by the court during the first term time after same is filed. If it appears to the court, upon such hearing, that the defendant has not been convicted of any other felony, the Court shall enter an order reciting the fact, and shall grant the defendant a new trial and shall then dismiss said cause. After the setting aside and dismissal of any judgment of conviction as herein provided for, the fact of such conviction shall not be shown or inquired into for any purpose except in cases where the defendant has been again indicted for a felony and invokes the benefit of this law.

According to the Texas courts, a final judgment of conviction consists of 2 equally essential parts: (1) facts judicially ascertained, together with the manner of ascertaining them, entered in the record; (2) recorded declaration of the court pronouncing the legal consequences of the facts judicially ascertained ( Mayfield v. State, 40 T. 289; Pennington v. State, 11 T. Cr. R. 281). Moreover, there is a strong presumption in favor of the validity of any judgment handed down by a Texas trial court ( Gordon v. State, 29 T. Cr. R. 410, 16 S.W. 337; Brown v. State, 32 T. Cr. R. 119, 22 S.W. 596; Hall v. State, 33 T. Cr. R. 537, 28 S.W. 200; Harris v. State, 39 T. Cr. R. 484, 46 S.W. 647).

Furthermore, the view also prevails that ultimate or final Texas judgments can be collaterally attacked only when void, not merely irregular or voidable ( Johnson v. State, 39 T. Cr. R. 625, 48 S.W. 70; Ex parte Brown, 145 T. Cr. R. 39, 165 S.W. (2d) 718). A judgment which settles the legal question involved is a final decision in a given case ( Terry v. State, 30 T. Cr. R. 409, 17 S.W. 1075).

The Texas courts have also held that the sentence is an order of the court in a felony case, regularly made and entered, ordering the judgment to be carried into execution; that a sentence is a final judgment and should be sufficient on its face to effect its purpose without resort to evidence in aid of it; that there is no fixed form for the sentence, except that it must be pronounced in the presence of the defendant ( Ex parte Hannen, 155 T. Cr. R. 10, 228 S.W. (2d) 864; Garbs v. State, 155 T. Cr. R. 290, 234 S.W. (2d) 869).

Counsel for respondent contends that under Texas law the respondent's 1956 conviction may be set aside and the records cleansed, plus the suspended sentence being revocable. Hence, counsel feels that respondent has not been "convicted" as the word is used under section 241 (a) (4).

Although article 778 states that in cases in which the jury recommends a suspended sentence, suspension of sentence shall occur with "neither the verdict of conviction nor the judgment entered thereon" becoming "final, except in the manner and at the time provided by the succeeding article." The conditions on which the suspended sentence may be avoided are, firstly, if the defendant is subsequently convicted of a felony, the original sentence may be imposed (article 779); secondly, if "at any time after" the specified punishment period has elapsed, the defendant may request a new trial and dismissal of his case (article 780). The latter eventuality may occur only if the defendant has not been convicted of a subsequent felony.

Conditions on which a judgment of the Texas criminal court may be avoided and the sentence set aside are conditions subsequent, which may or may not occur at sometime in the indefinite future. Hence, unless and until such conditions occur, respondent's conviction is a valid, subsisting criminal judgment of conviction and sentence of a duly constituted Texas criminal trial court. In addition, the happening of a prescribed condition subsequent may well worsen respondent's plight, for if he is again convicted, the original sentence may be reimposed. Therefore, respondent's 1956 conviction is in fact a "conviction" as the term is used in section 241 (a) (4).

It is noted in passing that Pino v. Landon, 349 U.S. 901, was a case in which under Massachusetts criminal procedure the defendant pleaded not guilty, was tried and found guilty, sentenced to imprisonment for 1 year, the execution of the sentence suspended, defendant placed on probation for 1 year, probation was served satisfactorily, and the court record then reflected that "sentence revoked. On file." The Supreme Court held "On such a record we are unable to say that the conviction has attained such finality as to support an order of deportation within the contemplation of section 241 of the Immigration and Nationality Act."

It has also been held that confinement is not necessary to satisfy section 241 (a) (4), if a valid sentence is in fact imposed, for the statute is phrased in the alternative ( Matter of M----, E-113322, 6 IN Dec. 346 (B.I.A., 1954)). Moreover, respondent committed the crime in question on January 6, 1956, after his last entry into the United States on February 4, 1955, and his conviction occurred on February 13, 1956. The Board has ruled that the legislative history and the wording of section 241 (a) (4) dictates that only the commission of the crime need be within 5 years after entry, while the conviction may be at any time ( Matter of A----, A-5170719, 6 IN Dec. 684 (B.I.A., 1955)).

For these reasons, respondent's deportation under section 241 (a) (4) is required.

Order: It is ordered that the appeal be and the same is hereby dismissed.

In accordance with the request of the Attorney General and pursuant to 8 CFR 6.1 (h) (1) (i), the decision of the Board in this case is certified to the Attorney General for review.


BEFORE THE ATTORNEY GENERAL (February 18, 1957)

Order: The decision of the Board of Immigration Appeals in the above-captioned case dated September 4, 1956, is hereby reversed and it is ordered that the proceedings herein be terminated.

The petitioner in this case was found guilty of knowingly attempting to pass a forged instrument in violation of the laws of the State of Texas. The jury assessed his punishment at 2 years and recommended that the sentence be suspended. The court so ordered. Under the Texas Suspended Sentence Act neither a verdict of conviction nor the judgment entered thereon becomes final until there has been a final conviction for "any other felony, pending the suspension of sentence."

There is no evidence in this record of a subsequent conviction pending suspended sentence. Under the statute the conviction of record is therefore lacking in finality. In accordance with the decision of the Supreme Court in the case of Pino v. Landon, 349 U.S. 901, such a conviction is insufficient to support an order of deportation within the contemplation of section 241 of the Immigration and Nationality Act.