I'm sure this has been asked before, I searched the forum and came up with nada, probably my lack of computer skills, so I apologize if it has been discussed before but....I think you can enhance a third degree to a second using a state jail prior. It seems so clear, but there's some disagreement in my office so...anyone know for sure? Thanks!

TEX. PENAL CODE sec. 12.42(a)(3) talks about a prior "felony." 12.42(e) says that a prior "state jail felony" cannot be used for enhancement under 12.42(b),(c) or (d).

A state jail felony should be okay for 12.42(a)(3). Cupit v. State, 122 S.W.3d 243, 247-48 (Tex.App.-Houston [1 Dist.] 2003, pet ref'd).

Get a copy of TDCAA's The Perfect Plea, which has a chart on page 36, outlining how all those enhancements work. It includes a footnote and citation to Cupit.

thanks y'all!

I've been in a running disagreement w/
our appellate folks about this. I agree
that Cupit answers the question definitively,
however the appellate folks think Cupit is
in conflict w/ Cambpell 49 SW3D 874 and
especially Smith 2001 WL 958810.

Since the appellate division is always
correct, they have prevailed on this issue
(temporarily).

Any thoughts out there?

They certainly have a point:

"In contrast, by reading �felonies� to exclude state jail felonies throughout subsection 12.42(a), an offender who commits only unaggravated state jail felonies will never face enhancement beyond a third-degree felony, a reasonable result which would seem to be the product of legislative intent. This interpretation is supported by subsection (e). Contrary to the opinion of the court of appeals, subsection (e) does not �specifically allow state jail felonies to be used for enhancement purposes under all of subsection (a).� Rather, it specifically bars the use of unaggravated state jail felony convictions punished under subsection 12.35(a) to enhance second-degree felonies (subsection 12.42(b)), first degree felonies (subsection 12.42(c)), or �a felony offense other than a state jail felony� (subsection 12.42(d)), but permits such enhancement by the use of aggravated state jail felony convictions punished under subsection 12.35(c). This provision indicates the intent to limit use of prior convictions for unaggravated state jail felonies for enhancement to the uses provided by subsection 12.42(a)(1). We will not stretch its unambiguous language to where the statute's plain words do not go."

Campbell v. State, 49 S.W.3d 874, 877

OTOH, Campbell (which doesn't seem all that persuasive in its discussion of 12.42(e)) doesn't expressly deal with (a)(3) and Cupit was pet. refused. Also, keep in mind that 12.42(a)(3) unlike 12.42(a)(1) & (2), covers enhance of BOTH SJFs and third degree felonies. I guess it depends on how horrible the prospect of having to do a new punishment hearing seems to you.

[This message was edited by david curl on 05-30-06 at .]