Defendant commits SJF of possession of controlled substance - Cocaine <1g.

Defendant has Multiple prior felony convictions. Your indictment lists the priors as enhancement paragraphs.

(In a DWI you have to establish jurisdiction, but what do you do here? Wait until punishment?)

Can you read the full indictment? If you do, can you call your fingerprint expert and prove up the piror felonies during Guilt/Innocence?

The recent DWI law has our office split on the decision and frantically researching this morning.

Presentation of evidence begins tomorrow.

Thoughts?

Prior convictions are included in the guilt stage of a trial only when necessary to establish that the particular district court has jurisdiction over what would normally be a misdemeanor offense. For example, a DWI (first or second) would normally be prosecuted in a county court at law because a district court normally only has jurisdiction over felony cases.

But, if a DWI includes at least 2 prior DWI convictions, then the offense is a felony and must be heard in a district court. So, in that instance, the prior convictions are "jurisdictional" elements of the offense and must be plead in the indictment, read to the jury, and proved at guilt. For another example, see the theft-third offender statute and Gant v. State, 606 SW2sd 867.

As to enhancements for a state jail felony, those prior convictions are not jurisdictional. The SJF is, by definition, itself a felony and the district court has jurisdiction. You read the indictment and prove the prior convictions only at punishment. Otherwise, you will have influenced the jury to use prior convictions to find the defendant guilty.

Good luck.

In the type case you refer to, the prior convictions are alleged for purposes of enhancement only and are not jurisdictional and thus "that portion of the indictment . . . shall not be read until the hearing on punishment." art. 36.01(1). And the presentation of the evidence is bifurcated in accordance with 37.07.

"Prior convictions are included in the guilt stage of a trial only when necessary to establish that the particular district court has jurisdiction over what would normally be a misdemeanor offense."

This is a quite reasonable statement (and supported by art. 36.01 not to mention scads of old caselaw). But at least a couple of courts have reached the opposite conclusion. See Calton v. State, No. 2-02-245-CR (Fort Worth -- 2/12/04) and Ford v. State, 112 S.W.3d 788, 791 (14th Dist 2003) (both saying that prior conviction enhancing SJF to 3rd deg should be proved at guilt stage).

Jimbeaux, the two cases you cite are different from your case because you are enhancing your state jail felony under either Section 12.35 or Section 12.42, while the particular offense in those cases, evading arrest or detention, contains a provision within the section creating the offense that allows for increased punishment. It appears to me that both opinions distinguish their situation from enhancement under Chapter 12 of the Penal Code.

In other words as long as you are attempting to increase a defendant's punishment under Chapter 12, you need not do that at the guilt phase. If you are attempting to increase a defendant's punishment under the section or chapter containing the definition of the offense, like evading or DWI, then you need to worry about those cases.

The CCA may give us some guidance when it decides State v. Morgan.

John R., I agree that Calton and Ford distinguish their situations from chapter 12 enhancements. I just wanted to qualify John B.'s general point that prior convictions that aren't alleged for jurisdiction should be proved at punishment. So, in that regard, I did stray from Philip's original question about cocaine possession.

In any event, I think the two courts' reliance on the fact that the prior conviction (elevating evading arrest from SJF to 3rd deg) is not a Chapter 12 enhancement represents a distinction without a difference. Article 36.01 (already mentioned) talks about prior convictions alleged for enhancement and prior convictions alleged for jurisdiction. The Fort Worth Court has now carved out a new prior conviction category -- a non-jurisdictional prior that doesn't "feel" like an enhancement (even though enhancing punishment is obviously the purpose).

And I agree that S v. Morgan will (should?) answer these questions.

Sorry Jimbeaux, I misread the thread and thought you were the originator.

That is what I anticipated. We cleared the matter up to the judge on the defendant's motion in limine.

I still got an objection when I voir dire'd the issue of punishment though. I'd specifically asked for a ruling regarding the discussion of enhancement provisions during the motion in Limine. Because the defendant elected to have the jury assess punishment, I was allowed to explain and ask questions regarding the enhancement of a state jail felony to second degree punishments.

Next Question:
I attempted to explain that a first time SJF defendant would be entitled to probation if the defendant was eligible. (Our co-defendant is getting a probation deal on his case in exchange for his testimony against the drug dealer.)

The judge hollered down that we were not to talk any more about probation. I clammed up and didn't argue with him, but do you agree with the ruling?

Should the Prosecution be allowed to voir dire on the subject of probation if it is critically important to the agreement with the co-defendant?

quote:

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The CCA may give us some guidance when it decides State v. Morgan.

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Not. Dismissed for want of jurisdiction. State can't appeal trial court's pretrial (mis)interpretation of a charging instrument.

State v. Morgan

[This message was edited by John Rolater on 05-05-04 at .]

Re Morgan: Well, I had hope.