When using an out of state rape conviction for the imposition of a mandatory life sentence, who makes the finding that the out of state law is substantially similar to Texas law 12.42(c)(2)(B)((i - iv))? If defendant elected the jury for punishment may judge make the finding, then charge the jury if they find the enhancement conviction true, they should sentence him to life?
See Price v. State, 35 S.W.3d 136, 143 (Tex. App. -- Waco 2000, pet. ref'd)which infers the jury made the finding of substantially similar.

There is no decision left for the jury to make if the Defendant is subject to automatic life imprisonment. The court should be the one to determine the degree of similarity of the elements. Surely that is a question of law or something that may be decided as a matter of law. Thus, the only issue for the jury to determine is the identity of the person convicted. They are given a punishment range contingent upon a negative finding. So I would submit the question of whether they find the Defendant to be the same person as the defendant in Cause No. X, without asking them to determine the nature of the prior conviction.

The tension between Apprendi and Almendarez-Torres, 523 U.S. 224 has not been satisfactorily resolved, but if this is not a sentencing consideration as opposed to a conduct element, then nothing would qualify. Do not give the jury the opportunity to avoid a proper sentence.

The elements of an enhancement are to be decided by a jury, if the jury is deciding punishment. Similarity of a statute is a decision that is capable of being made after hearing evidence.

Take a look at Price v. State, 35 SW3d 136 (Tex. App. Waco 2000), in which the DA presented evidence, got judicial notice, and let a jury decide. Why risk a reversal over such an easy issue?

In addition, you should look at the case handed down by the Court of Criminal Appeals from last week, Watts v. State, that got reversed because of problems in a judge taking judicial notice of what should have been a fact for the jury to decide. Go to the Court of Criminal web site to see the case

I am working on the appeal, so we are already faced with the issue of whether the trial court erred in not submitting the question to the jury. Appreciate the input - any suggestions on briefing the issue?

I would be sure to include a strong argument about harmless error.

Apprendi itself specifically excepts "convictions" or recidivism facts from what must be submitted to the jury, and we know our recidivism statutes do not create an offense. E.g., Porier, 591 S.W.2d 482. Apprendi did not overrule McMillan v. Pennsylvania either. Furthermore, the similarity of one statute to another could hardly be other than a question of law. Presumably there was no dispute about what each statute said and no question about what crime was committed in at least the prior case. Thus there is no question of the weight of the evidence, just the legal effect of the evidence. Questions need not, indeed should not, be submitted to the jury where the facts are not in controversy. McGee, 81 S.W.2d at 685. And it is the province of the court to construe the legal effect and meaning of documents. Hoovel, 69 S.W.2d at 108. I do not believe the "sameness" of a prior offense was submitted to the jury under former arts. 61-3 of the 1925 Penal Code. See Harbert, 124 S.W.2d at 1006 ("whether or not they were offenses of like character was question of law for the court to determine rather than a question of fact to be submitted to the jury.").

It would be foolish to extend Apprendi to this type of problem, and I do not believe any court has yet done so. The type of caution suggested by John can give any irrational juror, who suddenly finds out their bargain to vote for guilt by adjusting the punishment cannot be honored or for some other reason, the ability to exaggerate any dissimilarities or difference in wording (which after all does boil down to a matter of opinion or a conclusion). I respectfully disagree with John on this one, and think harmless error will not work since depriving one of his right to trial by jury could hardly ever be harmless. But argue waiver or preservation (specificity of the objection) if that is possible.

John is right that it would be simple enough to just acquiesce to the Defendant's request, but you must ask yourself: if it is so unlikely the jury will fail to find the elements of the foreign offense were substantially similar, why is the Defendant asking for the submission? Furthermore, submission of this question of law will encourage submission of other questions of law. Nothing can get a jury confused easier than asking them to decide a question of law.

[This message was edited by Martin Peterson on 03-17-03 at .]

I agree with Martin that Apprendi has nothing to do with your question. Apprendi does specifically exclude criminal history from the types of factual matters that must be decided by a jury based on the constitutional right to a jury trial.

But that does not mean that our statutes and case law do the same. Clearly, a jury must find that a defendant has been previously convicted of a felony offense to justify enhancing a punishment. Whether a particular prior conviction qualifies as a felony certainly may be subject to judicial notice, but the jury still is instructed on the law and given the ultimate decision regarding the application of the facts to that law.

The fact that a jury might take that opportunity to ignore the law and find for the defendant is no excuse for refusing to submit the issue to a jury. Whether you agree or disagree, Texas has jury-based punishment.

We take that same risk when we submit stipulated evidence. (That's what really gripes me about being forced to accept a stipulation on prior DWI convictions. We still have to cross our fingers and hope a jury follows the judge's instructions.)

As for your harmless error argument, don't leave it out. Plenty of federal prosecutors are making harmless error arguments in response to belated Apprendi claims in drug cases (over the issue of weight), and many of them are winning, particularly when it is obvious that a jury would have made the same decision.

Having said all this, I hope Martin is right. There being no disagreement over the description of another state's sex offense statute, it seems as if a judge ought to be able to decide if that description is sufficiently similar to justify being used in a Texas enhancement. But, as I point out above, at least one prosecutor has so far avoided having to litigate that issue by letting a jury decide it. I like avoiding litigation that I can lose, especially if that loss would create bad law for the rest of the state's prosecutors.

Thanks for all the input, I really appreciate all the advice. I am thinking I might try using Rules of Evidence 202 to support my position that it is a question of law, then use a harmless error analysis. The objection to the charge re: mandatory life was preserved by: 1) not substantially similar; 2) jury has the right to determine if substantially similar; and 3) insufficient information because there is no date when offense was committed (presented 1981, 1988, and 2001 statutes, conviction was in 1989, but judgment did not state date of offense)

Presumably you are referring particularly to the last sentence of Rule 202. I do not think this rule helps at all in deciding whether the issue (of whether the similarity of the other crime meets the requirement of 12.42(c)(2)(B)(v)) is a question of law. But in any event, do not get caught in an argument that Rule 201(b) is involved in deciding whether the matter can be decided as a matter of law. If Rule 202 was used to "prove" the actual content of the law of the other state, then that may be a separate issue, but do not argue the theory of judicial notice must or even can be utilized to make the similarity question a question of law or one within the province of the judge.

The sufficiency of the State's proof should not determine the issue either. It may have been error for the court to rely on the prior conviction for enhancement, but it still would not be error for the court to be the one to make the decision. There must be an actual conflict in the evidence before a question of fact arises.

What difference does it make whether there is a conflict in fact or not? The question is whether proof of the element involves facts or law (likely a mixture of both). We don't take issues away from a jury just because there is no conflict of fact.

Even if a defendant pleads guilty, a jury has to make a finding of guilt.

Now, this could be comparable to article 38.23 CCP questions, which are only submitted to a jury if there is a conflict of fact for them to resolve.

To expand on the facts - the jury did make the finding of whether or not the previous two convictions were true (one for rape, 1st degree in OK, and one for escape in OK) - the charge went on to state if you find the rape conviction true you will assess punishment at life. (Present convictions - found guilty on three counts: burg of hab w/ int to commit agg sex assault, agg sex assault, and agg assault) Also because we have no date the offense was committed and not every single year of statutes inclusive of the statute of limitations was presented (1981, 1988), this presents an additional question which may be construed as a fact issue. Even though it is obvious that the legislative history shows two amendments (1983 and 1986)and by looking at the section numbers they refer to and the two sections where the language is different, these section numbers coincide.

From what I can see this is a case of first impression: whether the jury has the right to decide the similarity. For enhancement purposes the jury gets to decide whether a conviction is true, but once that is decided the law mandates the punishment range. Couldn't it be argued that once the jury finds the conviction true, the sentence is mandated by 12.42(c)(2), although this is really stretching, but just who did the legislature intend to make this decision. do you think a statutory consturction argument might work? I want to make a reasonable argument - especially since I don't want to make it a mandatory jury question if at all possible. Also in Price, 35 SW3d 136, the court took judicial notice of the statutes prior to submitting the statutes to the jury. So wouldn't 201(b) apply?

Yes, the matter is like 38.23, in fact McGee is an early 38.23 opinion. So, if, for example, (as it sounds there may have been in the Abilene case) an issue were raised as to what law of Oklahoma the Defendant was previously convicted of violating, then that issue would be one for the jury. If, despite the lack of proof of the date of the offense, all possible applicable versions of Oklahoma law that could have been referred to in the Oklahoma judgment (or indictment)were shown, then the court could still decide as a matter of law whether under any version there was doubt about the similarity of the elements. If there was such doubt, then I guess you would have to submit to the jury which version of the Oklahoma law it felt the Defendant had been convicted under. You would still not submit the issue of the similarity. That remains a question of law for the court to decide based on the verdict. But the instruction to the jury becomes so complicated at that point maybe the entire issue should be submitted, perhaps with an instruction that if certain choices are made they need not answer other questions (or the court just disregards any portions of the verdict that become irrelevant). I believe I would have searched for some other means of proving the date of the commission of the prior offense!

The issue is probably one of first impression under 12.42(c)(2)(B)(v), but the art. 61-3 cases involved essentially the same issue and should control or at least guide the outcome.

No, Rule 202 is a completely separate rule of judicial notice (for a particular type of fact). The concerns in Rule 201(b), which is much broader in scope, have nothing to do with notice of the law of another state. And, again, just because you may have used 202 as a means of proving the Oklahoma law, whether a question is one of law or fact has no relation to the doctrine of judicial notice (under either Rule 201 or 202 or 203). My point was that if you start referencing judicial notice as an analogy to the court deciding an issue of fact (and instructing the jury that it might want to accept the fact too), do not let anyone imply that before the court can determine something as a matter of law the "thing" must meet the standards in Rule 201(b). It is a question of law because it involves only the application of law (12.42) to undisputed facts (prior conviction under Section so and so of the Okla. Stats.). And that's all I have to say about that. Forrest Gump

[This message was edited by Martin Peterson on 03-19-03 at .]

Thanks for the input on article 61. FUrther research showed article 62 had similar language, which also ws a question of law for the trial court- Stewart v. State, 476 S.W.2d 677. I also included the argument regarding Article 63, and federal convictions needing to be an offense which is also denounced by the laws of Texas. I think the trial court made that determination also.

Just to update - the opinion was just released and holds that statutory interpretation is a question of law for the trial court not the jury. The trial court determines whether the out of state statute is substantially similar. Reviewed de novo the trial court did not error is holding the OK statute was substantially similar to TX statute. Cross v. State, 11-02-00225-CR.

Again thanks for all the help.

Congratulations and thanks for updating us.