A question has come up in my office regarding theft enhancements under penal section 31.03. shoud they be treated the same as enhancements under 12.42? The question is must the theft offense used under 31.03 be a final conviction in that the defendant has sereved jail time for the said offense to be used as enhancement.

My thinking is that this is a jurisdictional issue and not the same as an felony enhancement under 12.42

The prior convictions are clearly not the basis for an enhanced penalty, but rather create a "new" felony offense. Gant, 606 S.W.2d 867 and its progeny. While this statute has often been compared to the DWI enhanced penalty provisions, 31.03 has no provision similar to 49.09(d) and the mere fact that "finally" is left out of 31.03(e)(4)(D)is no guarantee that its not there (as in 12.42(a), see Spiers, 552 S.W.2d 851; Langley, 833 S.W.2d 141). See Clark, 751 S.W.2d at 918 ("these provisions require the State to prove two or more theft convictions which became final before commission of the primary offense.") I would certainly prosecute on the basis that a suspended sentence, even if probation was never revoked, was a conviction for the purposes of this statute (even if there is a case on point to the contrary, because you might get it overturned by arguing that if the legislature intended "finally" to be there they would have put it there, plus the courts have specifically said 31.03(e)(4)(D) is not an enhancement statute and thus it may deserve a different interpretation). In any event, since even Class A or B theft may be punished by just a fine, I don't think you necessarily have to show the defendant served time.

I don't think there is a definitive appellate answer. The word final does not appear, but the Court of Criminal Appeals has put it in before in similar circumstances. And, given the detail of the DWI statute making it clear that probations count as final convictions, an argument could be made that in the absence of similar language in the theft statute, probations aren't available.

Our office, to avoid any appellate issues, avoids indicting with probations as convicitions. This is a good subject for a legislative clean up. Of course, someone could spend a lifetime trying to clean up the meaning of conviction in the Penal Code.

For additional support, see State v. Newsom, 64 SW3d 478 (holding that prior probated sentence is not available for elevating stalking offense to felony).

If you are in the Eighth Court of Appeals district, then I guess you would have to assume you would be fighting a losing battle. And maybe, perhaps most likely, that's true wherever you are in the state. But, even the court acknowledges that public policy would be better served by looking to the fact that someone is repeating their conduct not just their court appearances. I guess its ok for the courts to say: "the legislature knows: (1) we have this stupid, irrational rule that we are going to use as often as possible, where an offender is not considered a repeater unless his prior sentence was imposed and (2)that if it wants to overrule our policy of stare decisis to protect the public rather than a criminal it needs to more explicitly say so," but I think I would keep on making them say that. While this will no doubt have to be changed legislatively if it is going to be (and frankly I am surprised the courts didn't find some way to misinterpret the DWI law as well), you never know. E.g. Geesa, deciding after umpteen cases to the contrary that "reasonable doubt" needed explication to be understood. Who knows, maybe the courts would recognize that many thieves receive a suspended sentence for a reason (restitution) that doesn't make them any less a threat to the public or any less in need of a greater deterrent and maybe carve out an exception to the inane Jordan doctrine.

See the new spin out of Ft. Worth. It is an evading case, but the analysis is interesting.

Throneberry v State
2nd Court of Appeals - Fort Worth
May 09, 2002 - 2-01-079-CR

The full-text court opinion is available at:
http://www.texasbarcle.com/publications/GetOpinion.asp?lOpinionID=2353

Not much in the way of reasoning offered by the court of appeals. I imagine that one will get a PDR granted.

Hurray for Fort Worth! There is no doubt a probated sentence counts as a conviction, the only issue is, is it the type of conviction the legislature had in mind. Still, one cannot reconcile Newsom with this case, so maybe it will give the CCA a chance to again decide whether we should base the deterrent on the prior conduct or something else.

The answer is: wait a while. Throneberry's PDR was dismissed as untimely filed today and it does not appear the state filed a PDR in Newsom.

I would think Throneberry has a pretty good case for ineffective assistance of counsel on appeal. Or, he could raise it in a writ if the enhancement is perceived as void.

And, for those of you who get excited over litigation defining the word "final," today the Court of Criminal Appeals issued an opinion discussion the meaning of that word in connection with a DWLS:

http://www.cca.courts.state.tx.us/opinions/176800a.htm

Actually a collateral attack might be the best place for the court to have to decide the meaning of "convicted". They will effectively have to say the legislature drafted the statute so poorly that the defendant was denied due process because merely using "convicted" fails to convey the requisite certainty as to the penalty.

As far as assistance of counsel, I saw nothing to indicate Throneberry got substandard assistance before the court of appeals and he likely had no right to assistance before the CCA. Wilson, 956 S.W.2d 25.

On May 15 the Fort Worth Court once again found that the prior conviction need not have been "final" in the traditional sense to qualify as a prior conviction for evading. While not using the reasoning I suggested, a rather detailed explanation for its ruling is provided this time.

The reasoning in Throneberry II was that the prior conviction was actually an "element" of felony evading, so it didn't have to be final.

Does anyone think it makes sense, as a policy matter, to keep pleading prior evading convictions used to enhance 38.04 as "enhancements" (and proving them at punishment) rather than just proving them at G/I? As the FW Court says, since it's an "element," it doesn't have to be final. Isn't that a bonus we should welcome (that is, relief of the obligation to prove finality)?

(I know I've brought this up in another context, but please bear with me)

The reasoning in Throneberry II was that the prior conviction was actually an "element" of felony evading, so it didn't have to be final.

Does anyone think it makes sense, as a policy matter, to keep pleading prior evading convictions used to enhance 38.04 as "enhancements" (and proving them at punishment) rather than just proving them at G/I? As the FW Court says, since it's an "element," it doesn't have to be final. Isn't that a bonus we should welcome (that is, relief of the obligation to prove finality)?

(I know I've brought this up in another context, but please bear with me)