Send someone to prison for a sex offense....years later violates the registration statute. common sense tells me you can't indict for the registration offense and enhance with the sex case for which he was supposed to be registering....but we all know where using common sense can get us!!!!! anyone know where the rule is?

Nicole -

I am pretty sure you CAN. I think our office had that come up once about 9 or 10 years ago - unfortunately I don't remember the resolution right now. After all, you could have a failure to register offense even without a "conviction" assuming the Def. successfully completed a deferred. I'll see what else I can find...

[This message was edited by Larry L on 06-02-11 at .]

Case law says you can't use a prior conviction as an element of an offense and as an enhancement in the same charging instrument. See, e.g., Ramirez v. State, 527 S.W.2d 542; Wisdom, 708 S.W.2d 840.

For a case on point, check out Ballard, 149 S.W.3d 693.

Apparently, placing the allegation of the prior conviction in the indictment as an element of the offense sort of "uses up" the conviction. Can't make it serve double duty.

See Barker v. State, 2011 Tex. App. LEXIS 1041 (Tex. App. Houston 14th Dist. Feb. 15, 2011)

The Court said the original sex offense was used as an "element of his failure to register offense and, thus, could not be used again for punishment enhancement." Relying on Ballard v. State, 149 S.W.3d 693, 696-700 (Tex. App.�Austin 2004, pet. ref'd)

Found what I was looking for. Our Def. had 2 cases (2 separate victims, 2, indictments - one plea). We used one for the duty to register, and the other for the enhancement.