Opinion link

OK, I finally got around to reading this opinion that is causing so much concern among the feds and those in states with sentencing guidelines/grids and ... it seems to have no effect on Texas' sentencing procedures, as far as I can tell.

Am I missing something? Or has our historic reliance upon jury sentencing proven to be prophetic?

[This message was edited by Shannon Edmonds on 07-07-04 at .]

Everyone laughed at the Texas style of letting juries decide all the important stuff, but now it has turned out to be brilliant.

In addition, TDCAA should take a bow for working over the last few years to educate lawmakers in how to phrase their always expanding special punishment issues. Those issues are given to the jury to decide by the standard of beyond a reasonable doubt, unless the defendant elects judge punishment.

I think you are right, Shannon. Texas can sit back and watch the feds and many states litigate this stuff for years and have countless felons get reduced sentences in the meanwhile. Maybe they would all like to hire you as a consultant?

While Blakely apparently does not have any direct impact on Texas's indeterminate sentencing scheme and expansive judicial discretion, am I right that it could make relying on out-of-state and federal convictions at trial more troublesome? In other words, if we want to use J & S's from jurisdictions having the questionable determinate sentencing schemes, we will need to ensure that Blakely is satisfied.

As John B. mentioned, the feds and others are really pulling out their hair right now over this decision:

WaPost article

John S., I'm not so sure that out-of-state/federal convictions are going to be a problem, for two reasons off the top of my head:

(1) you're using the prior conviction (not the prior sentence) as the enhancement, and Blakely is generally directed only at sentencing decisions in those other jurisdictions; and

(2) remember this little gem from Apprendi: "Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt." One could extrapolate from this rule that the lowered threshold for use of prior convictions can be applied across the board. Or at least it seems so to me at first blush ...

Do you think the decision has any impact on Penal Code sections 12.47 and 12.49 that provides that if "the court" makes the determinations the punishment increases?

Richard, both those sections cross-reference CCP provisions. The hate crimes finding (Art. 42.014) was officially "fixed" after Apprendi, but the drug finding (Art. 42.012) was not. However, that problem can be easily avoided if the parties ensure that the court allows the jury to make that determination and bases its finding upon that jury determination, no?

p.s. - is anyone getting drug findings under 42.012? Just curious ...

If we get a chance to "fix" the drug-free zone enhancement to better match Apprendi, we also should modify the enhancement consequences so that they are simplified and match the rest of the PC. By that, I mean we should use it to increase the punishment range for a single degree rather than the annoying increase in minimum confinement and maximum fine it currently supports.

In addition, back when it was passed, two separate bills attempted the same thing with different formats. Been a mess ever since. One of them should be repealed and both should be simplified.

Of course, I'm also in favor of dumping these kinds of specialized sentence enhancements. I think the general punishment ranges give enough room for punishment.

I think we need to bring the family violence finding into line with hate crimes. We've tried to Apprendi proof ours through procedures, and the use of it in Texas is a little different, but it would probably be best if the statute accurately reflected the Supreme Court case law.

The family violence finding doesn't change the range of punishment in the case it is being made, so why would it need to follow Apprendi? If we submit such a finding to Apprendi, then we are letting the Supreme Court federalize state criminal law unnecessarily.

Weeellll, although the family violence finding doesn't affect punishment in the case where it is made, it may affect future cases (we use it to help prove up prior family violence convictions under 22.01). Also, the finding has some adverse effect in civil proceedings (as regards child custody, I'm told).

Family violence findings can make it much easier to prove the prior because the CW in that first case may be unavailable even if the CW in your present case is. Especially in light of Crawford. In order to use it this way, Apprendi has to be complied with somewhere, doesn't it?

We've had to litigate the validity of family violence findings in a number of cases. We now give notice of intent to seek a finding in our misdmeanor family violence informations, and any fact finding is actually made by the trier of fact.

Arguably, any "finding," be it CS, family violence, hate crime, or deadly weapon, ought to go through the same hoops to end up in the judgment, or, in the alternative, we ought to dispense with it altogether. The finding system represents the creep of sentencing guidelines into our system of jury sentencing. If we want to make this work, we ought to comply with Apprendi. Otherwise, we need to do a better job of preventing new finding requirements during each session of the legislature.

Rolater: How does someone litigate the validity of a finding of fact made in a prior judgment? Seems to be a collateral attack and how do they prove the finding to be false? Are you saying all they need to prove is that the finding was made by the judge (rather than jury, if jury was not waived)on some basis other than beyond a reasonable doubt, or maybe that the fact was not even alleged in the charging instrument? 42.013 certainly doesn't seem to require any of those things, so it is unconstitutional? Does the fact that the statute is mandatory count for anything? Maybe the Supreme Court should just draft a model penal code and criminal procedure code. No, on second thought, that would be worse that litigating the validity of those laws written by Congress or local legislatures.

I am all for consistent procedures. And the Legislature sure could use some education on how findings are actually done in a courtroom, but I don't think the Supreme Court has any better idea on how to do such things than we Texans.

Apprendi imposes a constitutional standard of beyond a reasonable doubt proof before a jury if the factual finding (other than a prior felony conviction) changes the punishment range in that particular case. Apprendi does not say that only a new jury must review the historical finding of fact by a previous fact finder, even if that finding is buried in a prior conviction.

But, all of this is moot in the context of an assault-second offender prosecution, because the prior conviction and family violence finding are elements of the offense. They are elements because the prior conviction elevates the misdemeanor to a felony and establishes the district court jurisdiction. And, of course, unless a defendant waives a jury trial, the jury will be hearing and deciding the weight of the evidence supporting the elements of the offense.

The major media and all the Smart People like stories about how awful the Texas Criminal Justice System is. They also scoff at the idea that their media is anything but balanced. So my question is: has anyone seen any headlines about how advanced and in-front of the issue Texas' jury sentencing is?

Inquiring minds want to know.

BTW, I heard that there are 3 other states with jury sentencing. They are all Southern states, who went to jury sentencing after Recontruction because of their distaste for the justice meted out during that period by the Federal appointed judges of that era. If so, does the very non-PC beginnings of our jury sentencing system make it legally suspect by the same chattering classes that applaud the Supreme's recent moves?