Question:

we have a guy here who is indicted for a state jail felony. he has two prior state jail convictions. He also has 1 prior trip to the pen for a 2nd degree felony.

Can you enhance a state jail felony up to a 2nd degree felony with 2 prior state jail convictions & 1 prior pen trip?

Jarvis Parsons
Brazos County

Take a look at Table 3-1 on page 36 of The Perfect Plea. You should have received a copy from TDCAA. In addition, see the last sentence from the previous page and its accompanying footnote 57.

John, I looked in the Perfect Plea as you suggested but am not sure the indicated passages answer the question. I know that caselaw prohibits ever enhancing a state jail felony to a 25-life habitual. However, this situation seems distinguishable. Here, the defendant is charged with a state jail felony. The penal code allows a SJF to be enhanced to a third degree if the defendant has twice been previously convicted of SJFs. Once enhanced to a third degree felony, if the defendant has also previously been to the penitentiary (not SJF) on a third, second, or first degree felony, the Penal Code also clearly allows for enhancement of a third to a second with a prior felony (not SJF) conviction which resulted in prison. Where does the law, either statute or case, prohibit this?

The list included in Perfect Plea does not include the combination suggested in the initial posting and thereby excludes it. The basis for the exclusion is not obvious from the statute, I will agree.

But, the Court of Criminal Appeals has generally held that a reference to a prior "felony" within the enhancement statutes does not include a reference to "state jail felony." See Campbell v. State, 49 SW3d 874 (Tex. Crim. App. 2001); Webb v. State, 12 SW3d 808 (Tex. Crim. App. 2000). And, the CCA has generally indicated that the list of enhancements for offenses that begin as SJF is an exclusive list, meaning we can't jump from the SJF enhancement over to the other general enhancements.

I'm not saying I agree with that approach, but that seems to be the statutory construction they are following.

The courts of appeals have not been so strict. For an example that could be used to support the enhancement combination suggested by the above poster, see Bunton v. State, 136 SW3d 355 (Tex. App. -- Austin 2004, pet. refused) (enhancing state jail felony as violent repeat offender to second degree and then as habitual offender to punishment range of 25-99 or life in prison). See also Cupit v. State, 122 SWd 798.

So, I suppose you could give it a try, but it is risky.

For additional discussions on SJF enhancements, check out these links: Discussion 1, Discussion 2, Discussion 3, Discussion 4, Discussion 5, Discussion 6.

[This message was edited by John Bradley on 07-07-05 at .]