Has the CCA (or any other appeals court for that matter) ever clarified if the two prior thefts are probated that they can be used to "enhance" the third theft to SJF? Here is the last post I found on this issue:

Martin Peterson
Member posted 06-12-02
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Jurisdictional Element

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.

[This message was edited by DeCluitt on 06-16-04 at .]

[This message was edited by DeCluitt on 06-16-04 at .]

OK. I know it's not a "sexy" topic, but will someone....anyone....just post a reply? Please? With sugar on top?

The best case for your position is Throneberry v. State, 109 S.W.3d 52, 55 Tex.App.-Fort Worth 2003, no pet.) (prior "conviction" in evading statute did not mean prior "final conviction").

Other the other hand, normally, unless you have a specific provision saying that nonfinal convictions will do, e.g., 49.09(d), 12.42(g)(1), "convicted" will almost always be construed to mean "finally convicted." See Jordan v. State, 36 S.W.3d 871 (Tex. Crim. App. 2001) ("convicted" in 42.12, sec. 15, means finally convicted). The rationale used in Jordan -- that (1) wouldn't it be awful if a defendant was sent to the pen on the basis of a nonfinal conviction that was subsequently reversed and (2) the Legislatures knows we construe conviction to mean final conviction -- would seem to have equal force for 31.03.

Although it is more or less dicta, several cases have said that 31.03 requires final convictions. Menchaca v. State, 780 S.W.2d 917, 919 (Tex.App.-El Paso Nov 22, 1989, no pet.) ("As long as the prior convictions were final prior to the commission of the instant offense, the temporal relationship between the priors is immaterial.") citing Clark v. State, 751 S.W.2d 917 (Tex.App.--Tyler 1988, no pet.).

The issue has been discussed in a prior thread. Check out the prior discussion for a more detailed answer.

[This message was edited by John Bradley on 06-17-04 at .]