We would like to enhance the present charge with two prior burglary of a motor vehicle convictions. At the time these convictions occurred they were 3rd degree felonies, but now they are state jail felonies, judge says we can't use them because they are now state jail felonies and it doesn't matter that they were 3rd degree felonies at the time of conviction. Thought I saw a case on this, but I can't remember what the outcome was and can't find it now? Are the level of the convictions used for enhancements based on the date of occurrence or the date it is being used for enhancement purposes?

Your judge is wrong. The statute that changed UUMV to a state jail has a savings clause that keeps the former law in effect for offenses committed before the effective date of the statute. See Act of May 29, 1993, 73rd Leg., R.S. Ch. 900, Sec. 1.18, 1993 Tex. Sess. Law Serv. 3589, 3708. So, those convictions are always 3rd degree felony convictions unless the Legislature does something really cockeyed (knock on wood).

I'm not aware of a case on point--this probably falls under the category of "too dumb to require a case to say it is dumb."

Thanks for your quick answer. Unfortunately our judge still believes that for enhancement purposes you must look at the degree of the conviction at the time it is used for enhancement not when the conviction occurred.

[This message was edited by pkdyer on 06-18-03 at .]

So, is the judge quashing the enhancement paragraph of the indictment before trial? If so, then appeal the issue. You will win.

I'm still looking for a case. I looked in Texas Sentencing but it wasn't covered in there, JB.

Your judge's interpretation, unsupported by any authority I've found, would run afoul of State ex. rel Smith v. Blackwell, 500 S.W.2d 97 (Tex. Crim. App. 1973)(orig. proceeding). In that case, the Legislature passed a law allowing defendants to petition for resentencing under the new misdemeanor marijuana laws for old felony marijuana convictions. The CCA said no, only the governor can grant a commutation or clemency. Your guy was convicted of a 3rd degree felony. The legislature (and your court) cannot change the fact that the conviction was a 3rd degree felony without intruding on the Governor's power to grant commutation or clemency.

The defendnat has already been convicted of aggravated assault with a deadly weapon. The judge doesn't like the fact that we used a vehicle as a deadly weapon. (he rammed a car with his truck several times). The judge is is trying to avoid the minimum twenty-five years. Judge told us that this should have been a misdemeanor not a felony and feels that we overcharged him. He wants to get him off with as little as possible.

So, I guess the judge would say convictions for third degree felonies could now be used for enhancement under sec. 12.42(a)(1)?

If less than a 25 year sentence is imposed despite your proof that 12.42(d) applied, I guess you might be able to appeal on the ground that the sentence imposed was illegal and get a new punishment hearing (see Banks, 29 S.W.3d at 645), or hope you can raise the issue under art. 44.01 (c).

The dicta in Campbell, 49 S.W.3d at 878 on the correct interpretation of "felony" in 12.42(a)(3) is bad enough, but your judge is really messing with the enhancement provisions. Why not argue that the defendant was not "punished under Section 12.35(a)" (since that section did not exist at the time he was punished). That alone should get you out of 12.42(e).

Be careful, you don't want the judge just to find the paragraphs "not true." If the judge thinks he's right on the law, he needs to either quash the paragraphs or make a specific finding that they are true, but not applicable for enhancement. If the judge just refuses to assess punishment at 25 to life, and is willing to face the political consequences, then y'all need to decide whether to make it a political issue or drop the paragraphs so that they'll be available in the future. Since he's guilty with a DW finding, the judge must give your guy pen time.

I just don't see why the judge is so sympathetic to a guy who's been to the pen twice and is now out committing violent offenses.

Argue 12.41 of the Penal Code. Convictions from former penal codes are third degree felonies if prison was a possible punishment.

Moreno 541 s.w.2d 170

Yuck. I observe that the remedy adopted by the CCA for an improperly enhanced sentence is to set aside the conviction as well. See Uresti. So maybe an appeal might not be such a good idea.

Thanks for all the help. I have several more cases that cite Moreno as well as Moreno's federal writ case that briefly addresses the issue. Hopefully this will satisfy the judge.

We received an opinion on point recently. Castaneda v. State, No. 05-02-01271-CR (Tex. App.--Dallas, June 25, 2003, no pet. h.). Here's a link to the published opinion: opinion

pkdyer: What judge is this? Is it your newest judge?

Judge did not like our cases, even went so far as to say they supported his theory. Def was sentenced to 7 yrs - we are appealing.

There simply is no authority supporting the ruling in your case. I hope the appeal works. Are you sure there is jurisdiction? Even if the other side is appealing, there are some COA's now that require a State's notice of appeal for a cross point.

[This message was edited by John Rolater on 07-10-03 at .]

I don't want to comment on which judge it is. I thought under CCP 44.01(b) we could appeal an illegal sentence. I have not got notice of the defense appealing, but I think they would appeal the conviction, not the sentence. I filed my notice of appeal on the sentence immediately. Does it become a cross-point on appeal if the defense also files an appeal, or do they remain two separate appeals?

It's a cross appeal if the defendant takes the case up and you appeal some other ruling of law under 44.01(c). You just have a regular 'ol State's appeal of an illegal sentence, I guess. That provision is a little squirrely though. See Ross v. State, 953 S.W.2d 748 (Tex. Crim. App. 1997). Update this thread when you get your opinion on the case.

Here's one of the cases that says the State has to file an NOA on a cross appeal. Strong v. State, 87 S.W.3d 206 (Tex. App.--Dallas 2002, pet. ref'd).