Has this ever happened to you?

Defendant has prior felony theft conviction.

We try him on a Agg Sex Asslt-Enhanced.

Defendant takes the stand and admits to the prior felony theft in guilt/innocence; jury convicts of the Agg Sex Asslt.

We prove up the prior theft with our fingerprint expert.

Defendant gets on the stand in punishment and claims although he did 8 years in TDC on the prior felony theft he wasn't "duly & legally convicted". Defendant claims that he had a poor ct appt'd atty in the first felony and it's just not fair that the raw deal he got in the first case be used to enhance him in this case. Defendant never appealed or properly challenged the theft conviction.

On cross of the Defendant we admit certified copies of all the waivers, stipulations and admonishments from the prior theft.

THE JURY BUYS THE DEFENDANT'S SOB STORY! They find the prior "not true" because they think the Defendant got a bad rap on the felony theft.

I'm quite sure that this will be pulled again, HELP?

Defendant's testimony was not relevant and should not have been admitted. Defendant may not attack the legality of his prior conviction except through postconviction writ of habeas corpus.

What was his plea to the enhancement charge when read at the beginning of the punishment phase? Assuming it was "true", why did the court even submit the issue for determination by the jury? I see nothing about "duly and legally" in 12.42(c)(1) to begin with. Did that language get into the charge?

Did I miss something? Even if the defendant pleads true to the enhancement, isn't it still submitted to the jury? Isn't this one of those things the jury has to find? I agree with John on the relevancy question. The approach used against you was a double whammy: it wasn't relevant in the first place, and the argument was an improper appeal for jury nullification. The jury is not allowed, legally that is, to disregard the law. If they believed that the prior conviction was true, they are obligated by their oath to find it so. In the future, I would file a motion in limine if you think this is going to be done. If it's attempted, object. If it's argued, object. And keep reminding the jurors that they are duty-bound to follow the law. They said they would when they raised their hands and were sworn in.

The defendant plead not true after admitting to the prior in guilt/innocence.

Yes, apparently the "duly & legally" language is standard fair in this jurisdiction.

Keep the suggestions coming...

If the guy's 8-year stint in prison was the result of a guilty plea, and he then testified in your trial that his previous conviction wasn't legal and he was really innocent, indict him for Aggravated Perjury. I know that's a stretch, but I know Richard Martindale is going to read your post, and I had to beat him to the punch!

Tim, if the defendant pled true, then the jury charge should instruct the jury to find the allegation true. Same thing if the defendant had pled guilty.

That would make the defendant's testimony even less relevant (but what is less than not relevant?).

Tim, the way I phrased it was misleading. As John points out the issue is still submitted to the jury but basically without any option than to find the allegation to be true and requiring them to assess punishment somewhere within the proper range.

Obviously the jury in question desired to assess punishment at something less than 15 years and found a way to do it. Unfortunately our system gives them the power but not the authority to do such things. I rather doubt anything other than exclusion of the irrelevant, improper evidence would have changed the result in the case and even then the untrue "not true" plea gave them the opportunity to do as they pleased.

Tina, is the "duly and legally" alleged in your indictment, or is it just added by the court?

M, it's in the standard charge prepared by the Court.

I'm gathering that "duly & legally" is not contained in other jurisdictions?

Perhaps it is time for TDCAA to post jury charges on the web site that cover punishment ranges. Where are you John Davis?

Thanks for clearing that up for me, John and Martin. That's what I thought but just wanted to be sure. My advice on this original post is to deal with this during jury selection if you think it may be a problem. Sure the jury can ignore the law but is much less likely to do so if the issue is handled early and often. I think the "duly and legally" is probably just some of that legal language that gets thrown in to make it sound more official. But, on the other hand, this sounds to me like a jury that didn't get hung up on language. They just wanted to cut the guy a break and probably would have done it regardless of the language. It happens.