We have a defendant who has been to prison several times. One of his trips was 8 years for cocaine possession. The other prison trips were for thefts. Defendant is now charged with state jail felony theft with two prior thefts (habitual thief). The law seems pretty clear that a defendant cannot be enhanced past a state jail felony if he is charged with state jail theft and you are attempting to enhance him with prior state jail felony thefts. We would like to enhance our guy to second degree using the cocaine possession conviction and one of his theft priors which was a felony (third) by virtue of the value of the stuff he stole, not as a habitual thief. If this makes sense, the question is: can a person charged with state jail felony theft by virtue of two prior thefts of any grade ever be enhanced beyond a state jail felony using thefts, even if the thefts you propose to use to enhance him with are first degree felonies? See Brown v. State, 14 S.W.3d 832. See also Taylor v. State, 2003 Tex. App. Lexis 3438. I think these cases stand for the proposition that a state jail felony theft (habitual) can never be enhanced beyond a state jail felony using any degree of felony theft convictions. This is very frustrating. Any one have any other opinion?

Until the Legislature overrules case law, you can't use a felony theft to enhance a third offender state jail felony theft to a higher punishment range. You could do it if the state jail felony was achieved by value of the property, strangely, but not if the state jail felony was achieved by theft-third offender law.

There are only two ways to change this:

1) Get 5 votes on the Court of Criminal Appeals to overrule their case law; or

2) Pass a bill that expressly allows it to happen. For a precedent, see section 49.09(g), Penal Code. That's what it took to fix the identical DWI problem.