Had a theft trial today where defendant was indicted for theft of more than 1500 but less than 20 K. There were two prior FINAL felony convictions alleged (one felony theft and one felony criminal mischief) there by elevating the offense to a 2nd Degree.

DEFENDANT requested and received a lesser included instruction on theft of 500 to 1500 and that's what the jury ultimately found him guilty of.

Question: Defendant has three prior felony theft convictions on his record but only one was plead in the indictment as a 12.42 enhancement. Can I use the unplead prior theft convictions at punishment to elevate my case back to a State Jail felony even though they were not plead in the indictment?

I should probably mention that the defendant is going to the judge for punishment and she has ordered a PSI and subsequent sentencing hearing in March so we haven't gotten around to proving any of the priors in the punishment phase--for enhancement purposes or otherwise.

[This message was edited by Lee Hon on 02-11-05 at .]

Presumably you gave the Defendant notice of the prior convictions pursuant to 37.07 sec. 3 (g), but arguably only as part of his "criminal record" and not for the purpose of enhancing under 31.03(e)(4)(D). I guess it all depends on how you interpret Brooks. While the court says you are no longer required to give the notice of enhanced punishment range in the indictment, I think it may be difficult to say your notice suffices because you did not anticipate the finding as to the value of the property made by the jury and notify accordingly. Then again, I would argue since the proof itself can be no surprise, the Defendant should not be able to claim harm merely because it is used for a different purpose. Shouldn't the defendant have to recognize all possible uses of the evidence? And what if he doesn't object that it is admissible only for a more limited purpose? Can he then complain on appeal contrary to Evid.Rule 105(a)? But see Hackett, where the court treats what you are trying to do as an amendment to the indictment (goofy, but true). In any event, the error will affect only the punishment, so why not go for it? Re-sentencing is no where near as difficult as retrial.

You did not plead a theft-third offender and warn the defendant to defend against that crime. You can't change the charge and expose the defendant to a felony punishment under that theory after the trial has occurred.

Those prior theft convictions are elements of the offense, not enhancements, if you intend to convict the defendant as a theft-third offender.

This is not even a close question, and I have to sharply disagree with Martin's advice to give it the old college try. Beyond all that, we have a higher duty to play fair. A prosecutor should include the allegations he wants to prove in the indictment BEFORE trial.

I have to agree with John, that if you did not ask the jury to find that the defendant committed two prior thefts, then you cannot argue that you have convicted him of a felony. Theft with two priors is a different offense than theft of a particular value range. You might have been better off to have alleged over $1500 and the two prior thefts in your indictment, especially as you apparently had two priors to spare that were not necessary for your habitual enhancement. E.g. Allege theft 1500 to 20000, allege two priors for habitual theft enhancement, then allege your other two prior felonies for habitual felon enhancement. That way, you not only get the state jail even if the jury says the value was under $1500, but (gleefully rubbing hands together) you argue that the two prior felony thefts are elements of your charge, so the jury learns about them in guilt innocence. Unless the defendant stipulates to felony value, he will have a hard time complaining about the State's presenting a valid theory of felony liability to the jury.

Clearly Wes's advice about how to charge the offense would have been the better approach. See McDougal, 105 S.W.3d 119 (where the Class A misdemeanor was still punished as a second degree under facts similar to yours). But I would maintain that the theft priors were not jurisdictional elements of the offense as charged in the indictment. Thus, the logic in Gant and Diamond does not apply so easily. I think it is entirely fair to seek to have the defendant punished as the Legislature prescribed, without conceding he must receive the benefit of some exceedingly technical rule of pleading. The issue is lack of notice, and if you gave notice under 37.07 he should have been prepared for the evidence and all uses of it. That you pled the priors for the wrong purpose should make no decisive difference in my humble opinion. But I query, was the evidence as to the value questionable or did the jury just choose a nullification theory?

Martin,
I started out with the notion that value would not have even been an issue. The police report listed the value of the property as $5000, and I prepared my indictment as such. Get to trial and meet with victim who states that he was mistaken as to the value and that his best guess is that it's worth only $1500.00 and he's not altogether sure about that. At that point, of course, I get that sinking feeling and, sure enough, at trial the defense attorney does a halfway decent job of impeaching my victim on the value.

Of course the defendant testifies (not sure why because the jury didn't believe a word he said) and had to admit that within the last 10 years he'd been convicted of 3rd Degree Felony Theft (pled), Felony Criminal Mischief (pled), Burglary of a Building (not pled) and State Jail Felony Theft (not pled). He also has another Felony Theft that he went to the pen for once that was older than 10 years so I didn't get to impeach him on that.

At any rate, I never had any idea at the commencement of this thing that the value of the property in report would be so far off or I would have certainly plead differently. In the long run, it might not matter because my defendant just picked up a new Retaliation charge stemming from an assault totally unrelated to my case and now he's facing habitual offender punishment. I just hate to see a guy with five prior felonies on his record get a Class "A" misdemeanor punishment on a pleading error. He was the one that wanted the lesser included-- I didn't -- and the record clearly supports he has two prior thefts.

My judge repeatedly comments on how much more valuable property becomes once it is stolen. Tough situation. Fortunately the criminals usually find a way to dispense justice to themselves in the long run. Your example encourages us all to contemplate pleading enhancements with all lesser included offenses also in mind. You just never know when the jury will be given the opportunity to change the range of punishment.