I'm going a little bit crazy trying to chase down something someone else here may already have a detailed explanation for.

We all know that you can't "double dip" by using a prior conviction as both an element of an offense and an enhancement. For example, you can't enhance escape by using the conviction that landed an offender in prison in the first place.

My question is "how come?" And when I've poured over case law, the case law explanation is "We all know you can't do this because precedent."

Then you read the cases those opinions cite, and they say the same thing "We all know you can't do this because someone said you couldn't in a lot of earlier opinions."

But I've followed that rabbit trail all the way back to the 19th century and can't find any judicial explanation for this rule.

I'm sure I'm so deep into the forest I can't find the trees. So who's the park ranger that already knows the answer? It will help me sleep better!

Justice Teague simply stated: "the source of this rule of law is actually this Court's opinion of Garcia v. State, 169 Tex.Crim.R. 487, 335 S.W.2d 381, 383 (1960) (Opinion on rehearing)"

McWilliams v. State, 782 S.W.2d 871, 875 n.2 (Tex. Crim. App. 1990).

I think you are right that the precise basis for the rule has never been identified. There is a similar rule in other states: 217 Cal. Rptr. 700; 476 So.2d 660; 490 N.E.2d 489; 306 S.E.2d 100; 619 S.W.2d 513. But, some states view things differently: 706 P.2d 1190; 717 P.2d 948; 710 P.2d 642; 312 N.W.2d 367; 630 P.2d 904. I believe the underlying basis is either an interpretation of the enhancement statutes or the idea that multiple punishments for the same act are being assessed.

Martin! One of the legal scholars I was hoping to intrigue with this question.

There is significant authority for the idea that a single criminal incident can be used to enhance multiple criminal charges at the same time without putting someone in jeopardy more than once for the same crime. That precedent is the same throughout the states so even if that was once the basis, I don't think it can be anymore.

There is some evidence for the idea that we once had some convoluted and apparently contradictory enhancement schemes, and back when judges were literally reading paper opinions by candlelight, it seems to me that more than one court misread a prior opinions and applied it to their instant case... then a specific rule was created by a game of judicial"telephone." I.E. "Well, looks like another court said you can't do this, so I'm going to broadly apply what was a narrow rule to a whole new set of facts."

I'll update those claims with citations some other time, but what I'm getting at is I'm not totally convinced this is really supposed to be a thing. And in my business of prosecuting people who are in prison when they commit crimes that require me to prove they're in prison as an element, I'm often burning an enhancement on bad guys I think should be habitual.

Stay tuned. I may be mustering an appellate insurgency.

Maybe this statement from Massachusetts helps in understanding why courts have been reluctant to find "double enhancement" is available: "Where the underlying felon[y][is] so defined that the [prior conviction baggage]is made an aggravating circumstance, subjecting the perpetrator to enhanced penalt[y] independently from the effect of a general penalty-enhancement statute, courts have required an explicit statement of legislative intent before allowing the penalties authorized by the general statute "to be pyramided upon a sentence already enhanced under [the statute defining the underlying felony]." Simpson v. United States, 435 U.S. at 14."

The issue also seems to encompass the idea that one must know what penalty attaches to his conduct beforehand. If the law says that if circumstance A accompanies your act and a penalty is prescribed, then circumstance A cannot be used to further enhance the penalty, because then the legislature has not successfully given notice of the applicable penalty and/or the range of punishment cannot be uniformly applied.

Simpson also refers to the rule of lenity.

As a further example of judicial construction of legislative intent in enacting habitual criminal statutes: "In State v. Ware, 201 Kan. 563, 442 P.2d 9 (1968) the Supreme Court of Kansas concluded that the firearms statute specifically directed more serious punishment at one who had prior convicted felon status and possessed a weapon than at one who had not been so convicted previously and that to permit further enhanced punishment under a habitual offender statute would effectively nullify the scheme of the weapons statute. The Arizona intermediate court expressly adopted this reasoning in State v. Smith, 12 Ariz.App. 272, 469 P.2d 838 (1970). The Supreme Court of Louisiana quoted Ware with approval and further found the language of the Louisiana statutes in question indicated the punishment imposed by the weapons statute was to be given effect. "The firearms statute details specific punishment for concealment of a weapon by a felon; its terms do not indicate that a greater penalty can be superimposed by multiple-billing (persistent felony offender status). Since the legislature has specified the specific penalty limits it wishes imposed on convicted felons who carry weapons, and since it has not indicated that further enhancement is to be allowed through the multiple-billing procedure, we are persuaded that the legislature did not intend that a person convicted under R.S. 14:95 be subject to multiple billing." State v. Sanders, La., 337 So.2d 1131, 1135 (1976). Similarly, the Supreme Court of Nebraska held that a misdemeanor enhanced to a felony because of a prior conviction is not a "trigger felony" for purposes of their habitual criminal statute. State v. Chapman, 205 Neb. 368, 287 N.W.2d 697 (1980).

The common thread woven into each of these statutory cloths was isolated by the court in Goodloe v. Parratt, 8th Cir., 605 F.2d 1041 (1979). Simply put, the specific statute controls a more general statute."

Heady v. Commonwealth, 597 S.W.2d 613, 613-14 (Ky. 1980).