Member
| This is an interesting question, but I don't think the Kitchens rule works for enhancements because there are not alternative manners and means of having a prior conviction. Two separate priors would be analogous to two separate crimes alleged in one indictment, a situation that requires a unanimous verdict on each. |
| |
Member
| Presumably you are referring to the situation where the state has three or more convictions available to prove that a defendant has been twice previously convicted of state jail felonies under sec. 12.42(a)(1) or two or more convictions for 3g offenses under sec. 12.35(c)(2) or two or more convictions available under sec. 12.42(a)(3), 12.42(b)(e), 12.42(c)(1). It would be my position that such multiple convictions are pleaded in the alternative to show a single fact, e.g., "that defendant has been once before convicted of a felony". See Carter, 676 S.W.2d at 355 fn. 3; Read, 955 S.W.2d 435. Hence, it would not be necessary for all jurors to agree on which conviction(s) satisfied the pleaded fact. But, the court should not submit an option not supported by sufficient evidence and if it did, you would run into a Bagheri type problem. Furthermore, Jimenez, 981 S.W.2d at 396 holds that you might have to prove all the convictions as alleged (i.e., that you do not get an alternative submission in the charge). |
| |