Def was convicted in 1987 of two counts of attempted rape in Arkansas. He now stands charged with aggravated sexual assault. I belive that the question of "substantial similarity" to 22.011 TPC is one of stautory constuction and a question for the court. The only case on point I can find is Cross v State, No. 11-02-00225-CR, Eastland CA. This case came down on July 17, 2003 and has not been released for publication. Cross does stand for my notion that the question is one for the Judge. I know there was a previous thread on this and I cannot for the life of me see how or why jurors should be entrusted with such a question. The second issue is whether a previous conviction for attempt can serve to expose a defendant to auto life under 12.42(c)(2)(B)TPC. I cannot find a case on point, but I analogize to Parfait v State, 85 SW3d 829, Houston CA (1). This case came down on July 25, 2002 and PDR was granted March 5, 2003. In Parfait, the defendant was convicted of the lesser offense of attempted agg sex assault and indecency (as charged) against the same child in a single multi-count indictment. The judge stacked the sentences. On appeal, defendant argued that 3.03 TPC does not allow cumulation for an attempt conviction. The CA writes that it is "axiomatic that, when a defendant is found guilty of an attempted offense, he is found guilty not only under section 15.01, but also under the underlying penal code provision as well." If this reasoning holds then upon conviction my defendant should receive life under 12.42.....any ideas, cases or suggestions?

[This message was edited by BLeonard on 08-18-03 at .]

[This message was edited by BLeonard on 08-19-03 at .]

There is another case supporting your attempt-is-the-same-as-offense theory: Leggett v. State, Tex. App. Lexis 3585 (Tex. App. Houston [1st Dist.] 2003) (3g offenses included attempted 3g offenses for purpose of ineligibility for probation).

I do not think the reasoning will hold. If you look at sex offender registration, for example, the list of offenses that trigger such registration includes an express reference to criminal attempts of such offenses. See Tex. Code Crim. Pro. art. 62.01(5)(G). Seems to me that means the Legislature only means to include attempts when it says so expressly.

Considering that Parfait's PDR has been granted, I would not put too much weight on the reasoning of the Court of Appeals in that case. Besides, 15.01(a) does seem to describe a complete offense within itself. The defendant is not being prosecuted for the underlying offense but rather the act that tended to accomplish but failed to constitute the other offense. (My apologies to the Brazos County DA if they are arguing the contrary). So I just do not see where one found guilty only of an attempt has been convicted of one of the specified offenses in (2)(B)(ii).

Martin & John, with all due respect (and I mean it) I cannot see how 15.01(a) describes a complete offense. 15.01 must ALWAYS be conjoined with some other offense in some other section. Even Arkansas courts recognize this because on the judgment the court recites that my defendant was convicted under two sections: attempt and rape. No conviction in Texas may be had under 15.01 alone. Doesn't it follow that the defendant has been convicted under 15.01 and say 22.011 if he has been convicted of attempted sexual assault here? John's argument worries me a bit more but just a bit....has the CCA spoken on Leggett? Any PDR?

I think this is an issue on which two very reasonable arguments can be made -- one for each side of the question. But, the Court of Criminal Appeals has repeatedly been loath to expand a statute beyond its plain language, particularly if the Legislature has shown elsewhere that it knows how to state something more expansively. (You also can use the argument that the Legislature would not pass a useless law, meaning there would be no point to article 62.01 if attempts were already included.)

And, I'm not sure I want the more expansive reading. As a prosecutor, I rely heavily on plea bargaining that includes charge bargaining. And the easiest (and most honest) charge bargain involves agreeing to a conviction for the lesser-included offense of the attempt.

For example, it is a simple method for addressing probation eligibility, parole eligibility, punishment range, etc. I am guessing that many, many prosecutors around the state will be surprised to learn that their pleas have been unlawful, insofar as they did not accomplish the goal of the plea.

If you check with the prisons, I can almost guarantee that they aren't treating attempts of 3g's as 3g offenses, for example. If they start doing it, don't you think there will be a lot of ineffective assistance of counsel or voluntariness of the plea writs?

But if one pleads a sex offender to an attempt because of problems with the case and not because the crime was truly an attempt (or even if it was, for that matter) and the same defendant later completes a sex offense, isn't this precisely the type of sexual predator we want in the pen for life? Personally, if I were on the parole board I would treat those convicted of attempted sex offenses (particularly against children) the same as those who had completed the act. Why should the defendant get a bonus because he stopped or was stopped short of the crime he specifically intended? How would the ineffective writs arise? Because the defense counsel failed to warn the client pleading to an attempt crime that his next sex crime could result in a life sentence? Or because the defense lawyer had made some representation about the acts of a future parole board?

It is not an issue of whether the defendant is or should be treated as a sexual predator or whether the statute ought to include attempted sexual offenses, only whether its current language can be stretched to accomplish that. That seems unlikely to me, so get the jury to assess life, don't ask for auto life.

I agree that the question is, "does the statute cover this situation?" I disagree that it is a stretch, however. I will keep you all posted...the trial began today and before it is over the judge will have to rule on the issue. Will you not agree that we as prosecutors, when we have a good faith argument and belief, should test the limits of the statutes with which we work each day?

As long as you also factor in the cost of a retrial to the victim and family and your office. And, as suggested above, you likely can get a life sentence without using the repeat sex offender enhancement. Finally, you have to factor in the cost of changing the law to incorporate attempted offenses. It may result in changes elsewhere in the Code of Criminal Procedure. It also may result in reactive legislation. Full steam ahead.

You all are much more sanguine about the prospect of a life sentence than I. Although I have had my share, they are not so easy to come by. In skinny guilt cases, I have found that "residual doubt" often results in lower sentences. The family in this case are against us. As is often the case, the only two people in the courtroom mad at the D are my partner and I. Fear not, John; the damage is yet to be done....we have to get a guilty, have a ruling, obtain a finding of substantial simlarity to the Arkansas statute, have the jury find the prior to be true....& etc.

Yesterday the CCA reversed and remanded Parfait in deciding that attempted child sex offenses are not included in 3.03(b)(2)(A) TPC ("stackable" offenses) Here is one more issue to add to our legislative wish list. By the way, I took your sage advice and tried our case without the auto life and the jury gave life anyway.

[This message was edited by BLeonard on 11-21-03 at .]

To read the Parfait case, go to the CCA website. I suspect the Legget case will get the same treatment.

As expected, Leggett more or less got the boot. Here is the vacate and remand language from the Court of Criminal Appeals:

The trial court convicted Appellant of attempted aggravated sexual assault and assessed his punishment at three years. The Court of Appeals affirmed and held that judge ordered community supervision is not available to a defendant convicted of attempted aggravated sexual assault. Leggett v. State, 110 S.W.3d 142 (Tex. App.-Houston [14th Dist.] 2003).

The Court of Appeals reasoned that even though attempted aggravated sexual assault is not listed under Article 42.12, � 3G (a), V.A.C.C.P., as an offense for which judge ordered community supervision is unavailable, aggravated sexual assault is included, and a conviction for an attempted offense constitutes a conviction for the underlying offense as well. To reach this conclusion, the Court of Appeals relied on its opinion in Parfait v. State, 85 S.W.3d 829 (Tex. App.-Houston [14th Dist.] 2002), which applied that same reasoning to Penal Code Section 3.03 (b)(2)(A), allowing�[*2]� cumulation of sentences for certain offenses arising out of the same criminal episode.

However, this Court granted the State's petition in Parfait and reversed. Parfait v. State, 120 S.W. 3d 348 (Tex. Crim. App. 2003). This Court held that attempted sexual assault was not included in the laundry list of offenses in the statute, and we rejected the Court of Appeals' theory that a conviction for an attempted offense is a conviction of the underlying penal code provision as well.

At the time the Court of Appeals handed down its opinion in this case, it did not have the benefit of our opinion in Parfait. Accordingly, we grant ground two of Appellant's petition for discretionary review, vacate the judgment of the Court of Appeals, and remand to that court for reconsideration in light of our opinion in Parfait. Appellant's remaining ground for review is refused.
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