We have three cases alleging illegal habitual felon sentences were imposed with priors used on offenses committed before September 1, 1994. Two priors involve a second degree felony at the time of the offense (w/six years prison), and another prior involves a third degree at commission. If committed when each instant "regular" felony case on appeal had been (in other words, fast forward two decades), each prior offense would now be a non-aggravated state jail felony. Since the current version of 12.42, enacted in 2011 and reworded in 2013, uses the word "punishable under" rather than "punished under" the argument goes that the prior convictions may not be used in the present cases for enhancement purposes since they are now "punishable under" Section 12.35(a) as state jail felonies. Appellant cites primarily to Samaripas, 454 S.W.3d at 8, n. 5, and asserts the "punishable" versus "punished" wording is significant and thus these priors could not be used since they are now--present tense--each "punishable under" 12.35 as state jail felonies. Has anyone else encountered this particular argument? The defense claims it is a question of first impression.
The relevant consideration is what they were punishable as at the time of the original conviction, not what you would punish them as now. For a case, check out Davalos v. State, Nos. 05-01-01005-CR, 05-01-01007-CR, 2002 WL 31141355 (Dallas 9/27/2002).
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