I'm preparing for a trial in which the automatic sex life punishment will be imposed upon conviction and proof of the defendant's prior sex offense conviction (or deferred adjudication probation). I need some input from someone who has prosecuted one of these before. The obvious question: after the guilty verdict, is there simply a short punishment hearing during which I prove up the prior and then have the issue presented to the jury in terms of a special issue. If, by some strange chance, the jury finds that the defendant is not the same person who was not convicted or put on deferred, what next? Do we engage in a "regular" punishment hearing after such a finding? Finally, I would appreciate a punishment charge or special issue that has been battle tested. My fax number is 409-883-9322.

If the defendant pleads true, it will be a short punishment hearing. You instruct the jury to find the allegation true and impose a life sentence. But, if that is going to happen, then why is the defendant even bothering with jury sentencing?

If the defendant pleads not true, then the jury will hear all the punishment evidence and get a jury charge that instructs them on two punishment ranges: (1) the range if they find the enhancement true and(2) the range if they find the enhancement not true.

Then, there are two verdict forms - one for each possibility.

Of course, if the defendant's previous sentence was deferred adjudication, then you also have to include a probation charge (yuck).

John:
We fully expect that he will plead NOT TRUE and force us to prove up the prior. He is, currently, on deferred so he will be probation eligible if the jury finds "not true" on the prior. The prior has good prints and we will get the probation officer in court at the time of sentencing to testify at the punishment hearing, but (as we all know) anything can happen.

I've already gotten a response from Galveston County but the defendant in that case entered a plea of true.

Unfortunately it appears our jury charge bank does not include Chapter 12 enhancement issues. It would be my suggestion that a special issue be submitted inquiring whether the jury finds beyond reasonable doubt that the defendant is the same person who entered a plea of guilty in Cause No. ___ in the District Court of ___ County in return for a grant of deferred adjudication. Conditioned on a negative response to that question, they are asked to assess punishment in the range applicable to the offense. There is no need to inform them of the result of a positive answer to the question or ask or instruct them to assess a life sentence in that situation. While we had a case to which 12.42(c)(2)(A)(i) would have applied, the jury ended up convicting the defendant under 21.11, so I have no experience in how to handle the problem. But, that is how I anticipated dealing with the issue in that case.

What? A special issue?

Why is the life sentence enhancement any different than a repeat offender or habitual offender enhancement?

Creating a special issue is contrary to the case law and established forms for submission of punishment issues.

Surely the jury already knows the consequences of an enhancement from voir dire. Why in the world would you want to keep that information from them? And how long should it take for the jury to determine that this second offender richly deserves the life sentence he is about to get?

Why? Because there is still a range of punishment to be assessed in the repeat offender situation (although at one time under prior law a third time sequential offender got automatic life). This is not true under option 1 in the case we are talking about.

I am not sure you would want the jury to know that even though the defendant would otherwise be eligible for consideration for probation, their decision will result in automatic life. I find juries that do not agree with the Florence Shapiro theory of punishment of sex offenders. Plus, I ask you: what "range of punishment" are you suggesting should be submitted if 12.42(c)(2)(B) applies? This all goes back to the earlier discussion of submission of issues of fact (only) to the jury. Under the older law referred to above neither party had a right "to inform the jury that a finding of true to enhancement paragraphs alleging two prior convictions would result in an automatic life sentence for the defendant" and "upon a finding of two prior convictions the burden of assessing punishment [was] taken from the jury and put in the hands of the trial judge". Garner, 648 S.W.2d at 440.

But, I suppose you could just word the verdict form: "We the jury assess the defendant's punishment at life imprisonment, finding he had previously been convicted of an offense [insert pertinent portion of (c)(2)(B)]". I do not remember exactly how this was handled in the past, but Branch's should have a punishment charge used under the old law.

Two verdict forms:

(1) We the jury find the defendant has previously been convicted of a sex offense (as described in the jury charge and application paragraph) and assess his punishment at life in prison; or

(2) We the jury assess punishment at confinement for ____ (life or 5-99 years) and a fine in the amount of (0-$10,000).

If the sentence is 10 years or less (not gonna happen), we further ___ (find or do not find) that the ___ (confinement or confinement and fine) should be probated.

[This message was edited by John Bradley on 03-26-03 at .]