We have an ongoing debate in our office about this:

Say you have a defendant who has two prior Forgery convictions and later commits a new Forgery offense and is punished as a Third Degree Felony.

If the defendant then gets out of TDC on the enhanced-to-a-third-degree Forgery and commits, say, a Robbery, can that prior TDC sentence for the enhanced Forgery be used as a TDC sentence to enhance the Robbery to a First Degree Felony?

Does anyone have any insights?

I wish you could, but you can't. See Webb v. State, 12 SW3rd 808 and Bunton v. state 136 SW3rd 355.

I understand what those cases say, but they are both about enhancing state jail felonies to 25-life habituals.

What I am wondering is if a Forgery, for example, that is punished as a third degree felony, counts as a TDC trip for purposes of enhancing a later-committed non-SJF offense??

See Ricks v. State, 2005 Tex. App. LEXIS 2988 (Tex. App.--Austin 2005, pet. ref'd)

Did you also see In Re Mack, 2007 Tex. App. Lexis (Ft.Worth2nd Dist. 2007)?

Think about it this way. The Leg didn't want a SJ felon to graduate out of SJF punishment range unless he committed crimes that justified taking him out of that category for low-level, nonviolent crimes. But, if a SJF ends up being enhanced to a nonSJF punishment range, then all bets are off for the use of that prior to enhance future nonSJF crimes. On the other hand, the Leg wanted (according to the CCA) to continue to restrict the enhancement of a new SJF crime.

I agree that after Mack the degree of the offense must be stated to be a "State Jail" in the judgment whether or not it is punished under 12.35(a). But, the decision in Mack does not change the fact that the offense is being punished under 12.42(a)(1) or (2). According to the limitation expressly stated in 12.42(e), that statute does not apply in the posited circumstance. Campbell does not answer the issue. The "enhanced state jail" should be treated as a "felony" under 12.42 (b), (c), (d).

I have been waiting for the SJF mentor to weigh in, so JB yes or no?

2007 Tex. App. LEXIS 4823

Good point Mr. Garza. I would distinguish that by noting that the Fort Worth Court of Appeals addressed only the issue of classification of the offense in the judgment and not enhancements or how the offense was punished. I continue to support the premise that a defendant can be convicted of a state jail felony and if it is punished as a non-state jail felony, that conviction can later be used to enhance as a non-state jail felony conviction.

Any other thoughts from you experts out there?

This has always confused me.

If a crime is Level X but it is "punished as" Level Y....

Was it really a Level X crime, or was it Level Y?

Does the enhancement transform the crime from X to Y or just the punishment?

I say, Yes, you can enhance as discussed above. And, if some appellate court throws it out, well you've only got to redo punishment.

Some day, the Leg needs to go back and clean up its intent on this stuff so that these things don't require a calculator to figure out. Of course, that would just cut short an entire chart in The Perfect Plea.

I've been using this type of case to enhance 'regular' felonies for years without ever being challenged on it. My thinking is that if they go to TDCJ-ID on a case, then you can use it to enhance just like it was a 'regular' felony.

It seems the same as a DWI that turns into a felony because of priors. Then that felony conviction can be used like any other felony.

That's a better explanation than mine.

The distiction from the DWI comparison is that a third DWI is, at trial, a 3rd degree felony. The scenario above is a state jail felony, which is punished as a third degree felony. The underlying offense does not become a third degree, it's just punished as such.

Potato, Potato.

Thank you to Mr. Hilburn for his comments. It now appears that our office feud has officially spilled over into this forum.

I did not mean to cause such a firestorm, but I really appreciate all of the input.

I think that until I see a court case that says I can't use a SJF offense punished as a TDC trip for enhancement of a non-SJF offense, I will continue to do so.

By the way, if it is not clear from the posts already, Cory and I agree with JB. David is clearly the odd man out in our office and was the impetus for this post in the first place.

Are the priors not elements of the the offense of felony DWI?

There was a recent thread discussing a case where the prior DWI conviction dates were wrong in the indictment and the result was that the charged offense was actually not a felony.

So the consensus is the words "punished as" are could be replaced with "enhanced to" and that would preserve the legislative intent?

David, your not alone, I agree with your analysis. in addition there is no specific restriction as stated in 12.42 (e) that applies to a felony DWI. Where a defendant is convicted for a 12.35 (a) SJF that is enhanced under 12.42 (a), it is still a conviction of a 12.35 (a) SJF and can not be used for a later non state jail felony. It does not morph into something else because it is enhanced under 12.42 (a).

[This message was edited by Hg on 08-07-08 at .]

Obviously my DWI analogy was flawed and just muddied the water, but that's what I get for putting 5 seconds of thought into something.

But I read 12.42(e) to say that only those SJ offenses that are "punished under 12.35(a)" are excluded from the enhancement scheme for regular felonies. The basic offense classification may not be morphed, but the punishment is and that seems to be the critical question.

See what you Aggie boys started?