Jordan, No. PD-973-06 illogically says that whenever a jury is erroneously instructed that an increased minimum sentence applies, the defendant is harmed. At worst, this case involved charge error. The 1992 conviction was admissible both to show the possible application of 12.42(d) and the prior criminal history of the defendant under 37.07. Since it seems extremely unlikely the jury ever would have considered a sentence between 15 and 25 years, their finding as to 12.42 should simply be disregarded. It is sophistry to say that the mere fact the State mistakenly offered the second conviction under 12.42(d) influenced the jury away from leniency.

But, the lesson to be learned is, while an increased mimimum may be important for plea bargaining purposes, just abandon the enhancement of a first degree if the case goes to trial. The jury will still know the status of the defendant as a repeat offender.

Bravo for at least one judge taking the time to make sense of the issues.

[This message was edited by Martin Peterson on 06-18-08 at .]