I've got a defense attorney who indicates he's going to object to misdemeanor priors that occurred prior to 1/1/96 under CCP Art. 37.07(i). I've looked up the cases and have found 2 unpublished Dallas cases and one Eastland case that is pending publication. Has anyone heard of anything else? Is anyone else fielding these objections?
It looks like the legislature just messed up when they wrote 37.07(i) as they did and really meant it to apply to juvenile adjudications for misdemeanors. That's what the Eastland appeals court said (Hooks v. State, 2002 WL 227329). The unpublished Dallas cases are divided, but the case that indicates the priors are inadmissible seems not to have put much consideration into the idea. Those cases are 2001 WL 995972 (Hunnicutt v. State) and 1999 WL 793394 (Hamilton v. State).
Is the Defense seeking to exclude the evidence of the prior misdemeanors @ punishment? Looks like the restriction only applies to evidence AFTER a verdict of guilty.
The Hooks opinion sets out the proper statutory analysis. I emailed you my brief, but I don't think it adds anything. The Leg. makes this kind of mistake all the time--that's why there are the construction rules applied in Hooks. I hadn't seen the unpublished Dallas cases, but then we started using Lexis after I wrote the brief.
I am talking about admitting the misdemeanor priors during punishment.
I read Hooks the same way that you do. Thanks for the brief.
I hope that someone does some clean up work on this section in the next session. It would be really easy for a defense attorney to slide this past an unsuspecting judge and an unprepared prosecutor and keep out some perfectly admissible priors.
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