Scenario:

12/21/04--Defendant convicted of SJF Evading with motor vehicle and given 90 days under CCP 12.44(a). This occurred in a neighboring county.

Evidently he has quite a bit of jail credit b/c by January 28, 2005, he is on the street and commits the same offense in my county.

He has a prior pen trip in 1999 for Retaliation.

The way I read this, the evading with a motor vehicle becomes a 3rd Degree b/c of the prior (even though he was sentenced under 12.44(a)). Then the prior pen trip brings his range of punishment up to 2nd degree range.

Is there any problem with enhancing the enhanced offense in this manner?

The cca recently had oral argument on a related topic in Calton v. State. http://www.cca.courts.state.tx.us/issues/ISSUES05182005.htm

The issue there was whether the prior conviction was a punishment issue. While oral argument is a dangerous basis for prediction, the Court's questions left the impression that the prior conviction is NOT an enhancement, but rather an element of the offense of 3rd degree evading with a vehicle.

Prior convictions that are used to shift an otherwise misdemeanor offense to a felony, and thereby establish jurisdiction in a district rather than county court, are essentially elements of the offense that are pled and proved at guilt/innocence. Prior convictions that increase a felony punishment range to a higher range are enhancements that are pled and proved at punishment.

So, looking at your case, you don't need the prior evading conviction to establish jurisdiction in a district court because mere evading with a vehicle gets that done as a state jail felony. That would mean your guilt/innocence pleadings and proof should only cover the evading with a vehicle elements.

Then, your prior evading and retaliation convictions come out during punishment to establish the punishment range as a 2nd degree felony.

The courts take this approach to minimize the prejudice to the defendant based on prior convictions. For an example, go read all the stuff on DWI law. Same theory for repeat theft offenders, et al.

So on Voir Dire can you see a problem with speaking to enhancements of punishment ranges to go into whether or not the venireman/woman/person will follow the law regarding the enhanced punishment ranges?

I would think such discussion would be permissible.

No problem addressing punishment range at voir dire. You are entitled to pick a jury that can consider the full range of punishment. But, you can't read the indictment to the jury and tell them the particular defendant has a criminial history. You just speak about a hypothetical case in which certain enhancements are pled and proved, could the jury consider the full range of punishment.

I realize that is a little artificial, but so long as we have jury punishment (forever, I pray), prosecutors should be able to explain the law and affirm the jury's ability to follow it before swearing them in to hear a case.

Calton is out. It holds (5-4) that the prior in 3rd degree evading is an element.

http://www.cca.courts.state.tx.us/OPINIONS/HTMLOPINIONINFO.ASP?OPINIONID=13290

This confirms the result: 2-20, but not the theory behind the result as JB explained, right?

Does this allow discussion of the prior SJF during guilt/innocence?

Answer: yes. The prior is admissible during the guilt phase of trial.

Funny quote: Allen Fitzgerald Calton and his little red Corvette took police officers on the ride of their lives one morning in North Texas.

I think that is right. While I believe the former first assistant from Williamson County (Judge Paul Womack) got it right in his dissent, the court seems to prefer to put anything mentioned in the description of the crime in the guilt stage.

Read the dissent.

Question: What other crimes does this mean we tell the jury about prior convictions at guilt, even though they are not necessary to establish jurisidiction in the court? Aren't there some misdemeanors where that will happen?

[This message was edited by John Bradley on 11-02-05 at .]

If I don't introduce my "enhancements" during the guilt phase, they are lost and not to be considered during the punishment phase.

Here, "enhancement" has to mean elevated punishment due to prior convictions of the same offense when said elevation is listed within the penal code as a part of the offense. The offense seems to need to be specifically stated within the section and listed as a particular conviction.

The opinion differentiates from your standard 'one prior felony conviction' or 'two prior state jail convictions' or 'two prior felony convictions'.

So, how does this affect DWI 2nds?

After rereading the majority opinion several times I don't see how a DWI second can be distinguished. It must be an element. The worst part is that this is a 5-4 decision along the strangest lines I have ever seen. I also worry about Old Cheif Etc. I guess we need to keep paying the appealate divisions across the state.

quote:

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Question: What other crimes does this mean we tell the jury about prior convictions at guilt, even though they are not necessary to establish jurisidiction in the court? Aren't there some misdemeanors where that will happen?

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The two most obvious (and the ones mentioned during oral argument in Calton) are DWI 2nd and prostitution 3rd. ("Mentioned" as in speaking of those crimes and then saying "we promise if you reverse this case we'll drag in every prior conviction during the guilt stage that we can").

As for DWI, the Beaumont court (as has been discussed on this forum) has already held that a prior dwi that raises it to a Class A should be proved at G/I. State v. Morgan, 110 S.W.3d 512.

And here is where the CCA has failed us. They have not made it clear how you apply their reasoning to other similar situations.

For DWI2nd, one could certainly argue that the part making it a Class A versus a Class B misdemeanor is contained in a separate subsection of Chapter 49. Is that the distinction for an element of an offense and an enhancment? Frankly, I'm not sure the CCA opinion makes that clear.

And the fundamental rule of any appellate opinion should be that it doesn't create more problems than it solves.

The dissenting opinion provides a test we can figure out, whether we agree with it or not. The majority opinion leaves much to debate.

Rehearing, anyone?

Well, you have a good point about referring to sec. 49.09 (which coincidentally is called "enhanced offenses and penalties") as support for the proposition that a DWI 2nd prior is not an "element." But here's the counterargument:

(1) Sec. 49.09(a) mandates that a DWI with a prior "is a Class A misdemeanor" (emph added).

(2) Other enhancements (e.g., sec. 12.42) refer to, for example, taking a state jail felony and "punish[ing] for a third degree felony" (emph added).

(3) Once a person is found guilty of an offense, he retains that status (3rd degree felon or whatever) no matter what happens during punishment. (I know I read that somewhere, but can't find the case now. But it makes sense if you think about it -- it certainly jibes with (1) and (2) above).

(4) Accordingly, under normal enhancement rules (ch. 12), you get convicted of something (e.g., sjf) and then, if there is a prior, you are punished for the next higher felony.

(5) But with something like DWI, once you are found guilty of the primary offense (with no priors) you enter punishment as a Class B misdemeanant. 49.09 indicates that a prior dwi will magically transform you into a Class A. But that can't happen after a finding of guilt. Thus, the only place to put a prior (in DWI 2nd) is before the end of the guilt stage.

Does any of that make sense?

What a small world we live in when now as a Defense Attorney I see Mr. Calton's name in this forum. I prosecuted Mr. Calton in 1996 for Agg Asst on Peace Officer. Jury found him guilty of lessor Deadly Conduct, Misdmeanor. This was before felony evading arrest. Mr. Calton while being pulled over by the task force decided to evade in his car through two counties before being spiked. He swerved his car at several officers. I was just surprised to see his name.

SJF Poss C/S w/Intent, Drug Free Zone (enhances to 3rd.)

If this defendant has 12 priors pled in lumps so that you have three consecutive offenses:

2 cases pled in 1988

4 pled in 1992

2 pled in 1993 (offense dates before the 1992 cases)

4 pled in 1997

Is the punishment range 2-20 or 25 to life?

Does the Drug Free Zone alter the nature of the offense or is it an enhancement?

Please look at 481.134(d) "is a felony of the third degree if it is shown on the trial of the offense..."

[This message was edited by Philip D Ray on 11-16-05 at .]

Philip,

Without answering your question, I wonder if one of the previous 12 convictions is an aggravated offense. If yes then you can enhance using 12.35(c) and not worry about drug free zone. You will then have an enhanceable third degree felony with three sets of priors to get the habitual charge. Just a thought to keep you in the penal code enhancements instead of the the health and safety code.

Phil

They're all cocaine possession charges and some forgeries (old 3rd degree kind). Good idea though.

The drug free zone is an element of the offense, which is a third degree felony. If you have two other non-SJF convictions in the proper sequence, it would be 25 to LIFE.

And if you want anything more than Ken's opinion on the matter, read Harris, 125 S.W.3d 45.