We are trying to figure out whether a case which begins as a misdemeanor theft, enhanced with two prior misdemeanor thefts, can subsequently be enhanced to a third or even second degree felony under 12.42 (with either prior state jail felonies or others). Brown v. State 14 S.W.3d 832 out of Austin says that a theft case which begins as a misdemeanor cannot ever be elevated beyond a state jail felony. The Court of Criminal Appeals refused the PDR. Under this rationale, should we be enhancing DWIs to habitual felonies? We do it all the time in Waco, and that doesn't seem to be in question. Is theft somehow different?

There are many offenses that are elevated to a felony punishment level from a misdemeanor by alleging prior convictions for that same offense in the indictment (e.g., theft, DWI, barratry, stalking, family violence assault, cruelty to an animal, violation of protective order).

Further elevation of the punishment range is possible. However, in the absence of a statute expressly authorizing the further use of prior convictions for the same offense, the additional prior convictions have to be for different offenses. See Phifer v. State, 787 SW2d 395. The problem in Brown was the repeated use of theft offenses. The result would have been different if the additional prior convictions were nontheft offenses.

Effective Sept. 1, 1995, a special statute was passed permitting the use of additional felony DWI convictions for enhancement of a DWI beyond the third degree felony level. See Tex. Pen. Code, sec. 49.09(f).

The solution is to expand the authority in 49.09 to the other offenses that have such repeat offense enhancements. A great legislative project, especially for family violence assault and theft cases.

I think that's a good idea, John.

As the trial prosecutor who convinced Mr. Brown's jury to sentence him to 14 TDCJ for shoplifting a loaf of bread, a package of cheese, and a can of malt liquor, I now find myself in a unique position to perhaps do something about the Austin court's reversal of that sentence. Not that I have anything personally against Mr. Brown (despite his dozen-plus previous convictions for theft, including pleas to TDCJ sentences that are now invalid under the appellate court's ruling), even if that was the only case on which I got reversed ...