Please advise if it is acceptable and in what form it should be done if so for the following:

Defendant committed theft by check in the amount of $1200 (class A misdemeanor) but he has two prior misdemeanor convictions which make the present case a State Jail Felony. The victim in this case is also elderly so the case is enhanced to a third degree felony. Defendant has an additional prior felony conviction of Theft by Check for which he was sentenced to TDCJ. Can the present case be enhanced from a class A to a State Jail then a third degree and finally a second degree based on these facts?

Yes, I am sure it can. How is Hell? My investigators enjoyed their few days down there---meaning down in hell.

I like it.

I do not find any case law that says you cannot do just what you propose. My feeling is that an appellate court would make up some extension of the 3X theft "special enhancement" business to say that the most you can go is to a 3rd degree, but I don't see any cases that say that now.

Take a look at Freeman v. State, 970 SW2 55, which cites Rawlings, 602 SW2 268, and Ex Parte Firo at 805 SW2 568.

I think the appellate court will probably say that slipping the 'theft from elderly' allegation as an intermediate enhancement will not change the result Rawlings would predict.

I'm not very optimistic that your case would survive scrutiny as a 2nd-degree. The elderly enhancement is a new twist, but it's still a provision of 31.03, and that's problematic.

I was bitten by the Rawlings rule in Brown v. State, 14 S.W.3d 832 (Tex. App.--Austin 2000, pet ref'd) (aka "the only case Shannon ever had reversed", albeit for punishment only). In my case, it meant Mr. Brown's 14-year TDCJ sentence (roughly one year for each prior theft conviction of his that we could find) ended up as a two-year state jail term because he ONLY had thefts on his record.

The courts seem pretty consistent in holding that prior thefts can only enhance future thefts under the special provisions of PC 31.03, and NOT under PC 12.42's general enhancements for repeat offenders, so I don't see you getting anything more than a 3rd-degree felony out of this one.

Edwards,

Hell is fun! Even Barry sent some of his guys down to attend the school. I have had lots of compliments about your investigators.A good use of Fed Forfeiture money!!!!

Thanks for the advise. Guess we'll lower to a 3 degree. No sense in getting too greedy but the guy is a sleeze and it is fun to see them squirm!!! Am I the only prosecutor who likes to recommend 10 years for a first time offender just so they get the idea that it isn't a game?