I know this has probably been asked before but I have a defendant charged with evading arrest in a vehicle. It's a state jail felony with a deadly weapon so it's punished as a third degree felony. He has three priors. Is this new charge an habitual case with a range of 25-99 or life or merely a second degree case with a range of 2-20?

I don't have a current copy of the Perfect Plea, but you'll find a nice chart in there were you to purchase one. Also, if you have Ms. Beckham's Criminal Laws of Texas, page 30 and 31 have a handy chart as well.

Or if you kick it old school and simply read through 12.35(c)(1) and 12.42(a)(3) you'll confirm the chart:

SJF with D/W + one prior= 2nd degree punishment.

In order to 25-life on an evading, you need to prove a prior evading conviction during guilt/innocence(3rd degree conviction because the prior is an element of the offense- 38.04(b)(2)(A), then show two prior consecutive other felonies to enhance to habitual.

The difference is whether the applicable statute states that the offense "is punished as a third degree" versus the offense "is a felony of the third degree" as is the case in 38.04(b)2(A).

But what about TCCP 12.42(d) which says, "If it is shown on the trial of a felony other than a state jail felony punishable under Section 12.35(a)...." which seems to rule in 12.35(c) (the state jail felony with a deadly weapon) and Bunton v. State, 136 S.W.3d 355, 363 (Tex. App.--Austin 2004, pet. ref'd)???

I am afraid that I must disagree with Mr. Ray.

This exact fact pattern was recently addressed by the Austin Court of Appeals. In Bunton v. State, 136 S.W.3d 355, 361-362 (Tex.App.-Austin 2004, pet. ref'd), the Appellant was indicted for evading arrest while using a motor vehicle in flight, a state jail felony, under section 38.04(b)(1). In addition, the indictment also alleged the use of a motor vehicle as a deadly weapon in the commission of evading arrest. The indictment also alleged two prior felony convictions for enhancement of punishment, one for aggravated assault on a correctional officer and another for an attempt to commit a burglary of a habitation. Appellant was convicted of a state jail felony of evading arrest under section 38.04(b)(1)and the jury found that he had used a deadly weapon during the commission of the offense. At the penalty hearing, the part of the indictment alleging the two prior felony convictions was read to the jury. Appellant pled "true" to those allegations. In its jury charge, the trial court authorized the jury to assess punishment for life, or any term of years not more than 99 years or less than 25 years if the jury found beyond a reasonable doubt that appellant had been previously convicted as alleged.

On appeal, the appellant claimed the court's charge was fundamentally defective because section 12.42(d) did not apply to convictions for state jail felonies of any kind. Addressing that argument, the appellate court noted that Section 12.42(d) provides, "If it is shown on the trial of a felony offense other than a state jail felony punishable under section 12.35(a) that the defendant has previously been finally convicted of two felony offenses and the second previous felony conviction is for an offense that occurred subsequent to the first previous conviction having become final, on conviction he shall be punished by imprisonment in the institutional division of the Texas Department of Criminal Justice for life or for any term of not more than 99 years or less than 25 years." The court then stated, "It is clear that the legislature could have exempted all state jail felonies from the habitual criminal status in section 12.42(d). The legislature, however, expressly exempted only those state jail felonies punishable under section 12.35(a), often described by case law as non-aggravated offenses. By doing so, the legislature made aggravated state jail felonies punishable under the provisions of section 12.35(c) subject to the habitual criminal provisions of section 12.42(d)."

Based on the case above, if the priors are for 3rd degree or higher felonies and the are in the proper sequence, the defendant should be habitual.

You might also look at State v. Mancuso, 919 S.W.2d 86, 90 (Tex.Crim.App. 1996) where the Court of Criminal Appeals stated, "The only way a defendant's punishment could be enhanced under the provisions of section 12.42 was if the defendant committed a state jail felony under the circumstances described in section 12.35(c) which mandates the defendant shall be punished for a third degree felony. For example, had appellees used or exhibited a deadly weapon while committing their state jail felonies, such conduct would have been punished as a third degree felony. That third degree felony offense could have been properly enhanced under section 12.42"

[This message was edited by Sammy McCrary on 05-30-06 at .]

I think Philip is right. By virtue of the deadly weapon finding, this is a 3rd degree felony, not a state jail felony. The defendant is subject to habitual punishment.

Having been involved in some of the discussions when those enhancements were written, I can tell you that the general intent was to permit the enhancement statutes to apply to SJF's that involved violent behavior. That's why the DW enhancement was applied to take the punishment outside of the SJF range initially. So, yes, Virginia, you can enhance to habitual status.

My question is: Can the police hold the vehicle that the person was driving when evading arrest? And not allow the wife to go and claim her property, in which she is being denied the request, thru the police department

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