Defendant is arrested for Less than a Gram of Cocaine in a Drug Free Zone.

3rd degree offense. (enhanced from SJF b/c of DFZ)

Can I use her prior 3 Delivery of Controlled Substance, Cocaine convictions to enhance her punishment range to 2-20? (all three are convictions from 2/26/92)

I think I can just put all the proper enhancement paragraphs on the indictment then ask the jury to find one of the prior judgments and the DFZ true.

I guess I'll be the first to venture a response on this one.

It sure seems that you should be able to "bump" a Possession under 1 gram in a Drug Free Zone like any other third degree felony.

Essentially the exact same thing is done when we bump a DWI-3rd up to 2-20 or 25-99 or life.

The only argument that I could possibly see is a minute difference in the wording of the enhancement in the statute. According to the langauge of the statute, a DWI-3d "is" a felony of the third degree while PCS under 1 gram in a Drug Free Zone "is punishable as a third degree felony." Whether that difference actually means anything is would seem doubtful to me. A State Jail felony that "is punishable" with 2-10 years in the Institutional Division is no longer a State Jail felony because state jail is not an option for punishment. What do you all think?

Steve L.
Hopkins County ADA

I disagree. The offense itself is a state jail felony. HSC 481.115(b). The drug zone enhancement makes it punishable as a 3rd degree, HSC 481.134, but the offense itself is still a state jail felony. See State v. Webb 12 S.W.3d 808, 811 (Tex. Crim. App. 2000). However, it is not punishable under 12.35(a) or 12.35(c) because of your drug free zone enhancement, so none of the other enhancers in 12.42 apply. I think.

The offense may actually be a third degree felony and thus subject to this type of enhancement. Harris, 125 S.W.3d 45.

There are good arguments both ways. But the history of the CCA is to deny this sort of enhancement under the theory that state jail felony enhancements are specifically provided for in Chapter 12. I'm not saying it always makes sense, but that's the risk of pushing forward. But, at most, you would have a retrial on punishment.

I'm going to charge her with the enhancements then possibly come off of it during plea bargaining. If I end up around 7+ years as a deal, I think it's worth it.

What do you think?