Does Theft under $1,500, with 2 prior thefts of any grade, apply when a juvenile has been adjudicated for 2 prior thefts? Sec. 31.03(e)(4)(D) uses the word "conviction" instead of "adjudication."
The first hurdle is whether a "conviction" is final if probation is granted. I could find no cases on point, except under TPC Sec. 38.04, evading arrest/detention. The Fort Worth Court of Appeals recently held that a conviction is final under this statute if probated because it is an element of the offense, instead of an enhancement to a sentence. Throneberry v. State, 109 S.W.3d 52 (Tex.App.-Ft. Worth 2003, pet. dism'd).
But the major hurdle is whether Sec. 51.13 of the Family Code allows me to use a prior adjudication of theft, as a juvenile, for a conviction under 31.03(e)(4)(D)?
If I'm required to send a child to TYC for the theft to be a "conviction," there are rare circumstances in which a child could be enhanced to a felony for repeated thefts or, for that matter, an enhancement to a felony for evading with a prior under 38.04(b).
Anyone successfully prosecuted juveniles under 31.03(e)(4)(D)?
Can't you send him to TYC under 54.04(s)?
My understanding is that there is no such thing as a "conviction" under Texas juvenile law, and that the law is set up so that it is impossible to have a "conviction" until a person commits an offense after their 17th birthday. This has the side effect of preventing us from applying certain enhancements. I see it most often with repeat offenses for family violence.
However if this juvenile has two prior adjudications on separate occasions, in succession, you should be able to act under 54.04(s), as Mr. Curl suggested.
The reason I cannot use Sec. 54.04(s) is because the theft committed was a Class C offense while the previous two had been Class Bs. Also, I couldn�t modify the child�s probation under Sec. 54.05(k) because I need a new misdemeanor adjudication to send the child to TYC. Five courts of appeals have ruled that you cannot modify only the second adjudication to get to TYC. In re J.W., 118 S.W.3d 927, (Tex.App.-Dallas 2003). Of course, this changed after 9/1/03. But I believe, after extensive research, that it would be an ex post facto problem to modify a probation based on the change if both probations were ordered before 9/1/03. There are no cases, of course, on point � am I wrong about this, though?
I did find a case that speaks to using enhancements within a penal offense. In re E.A.R., 548 S.W.2d 454 (Tex.App.-Texarkana 1977) held that the literal meaning of �conviction� in the escape statute controlled and a juvenile could not be found guilty of escape. Sec. 38.07(a) [now, Sec. 38.06 and since has been amended to include juvenile adjudications or orders of a court].
I guess another question (for now, hypothetical) is whether a child who has been convicted of two prior Class C thefts in municipal court can be enhanced to a felony in juvenile? Wouldn�t the two priors be convictions under the Penal Code? If so, the juvenile who commits three Class C could be adjudicated for a felony for the third as enhanced, while the one who commits three Class As would not.
Great hypothetical. It looks legal, but I think that most any judge or jury would throw it out if there were not extremely unusual circumstances.
I think that the juvenile justice code should be ammended to allow us to enhance for prior adjudications as if they were convictions, but not for juvenile convictions at the municipal or jp level.
This is pretty serious because the only time it would make a difference is if the State were seeking to send a juvenile to TYC on an enhancement for repeat offenders. Why should adults be enhanced but juveniles not? Is this the intent of the drafters?
The law doesn't provide for enhancements in juvenile cases, because in a regular juvenile case, disposition (punishment) is always to the court (judge) and he always has the probation report so that he knows about previous adjudications and can take that information into consideration when deciding what to do.
There have been several cases distinguishing between "adjudication of delinquency" and "conviction" and each has held they aren't the same thing. This has resulted in some legislative changes in the statute to use both terms in certain statutes in order to give effect to their intent.
Yes, the law leaves disposition up to the judge. However, by preventing an enhancement from a misdemeanor to a felony, it can restrict the judge's discretion by preventing a judge from using his discretion to send a juvenile to TYC.
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