New offense is a SJF. Has been to SJF twice and to TDC once. Can you enhance the new SJF to a third with the prior SJF trips, and then enhance that third to a second with the TDC trip? What about if you have a new SJF enhanced to a third with two prior SJF trips, can you then make it a habitual with two prior TDC trips? So many possible combinations!!! Or are we limited? I thought I knew this, but now am questioning myself!!!

One enhancement only. A State jail can go up to a 2nd. A "real" felony can go up to the habitual 1st.

The key to this is the general language in 12.425- "if it is shown on the trial of a state jail felony... on conviction the defendant shall be punished for a felony of the 3rd degree."

An enhanced state jail doesn't actually become a second or third degree felony. It *IS* a state jail, just being punished as if it were a higher grade. Compare this to, say, a DWI 3rd. There, the two prior convictions serve to make the offense an actual third degree felony.

Since an enhance SJF isn't actually a third degree felony, the punishment enhancements of 12.42 don't apply. They require "if it is shown on the trial of a third degree felony..." It's not a third, it's a SJF that's being punished as if it's a third.


See State v. Webb, 12 S.W.3d 808

But, watch for the CCA opinion in Samaripas, PD-0135-13, as it may shed more light on the difference an enhanced offense level and an enhanced punishment range.

While it shouldn't affect your guy (unless one of those prior SJ's had a DW finding), a prior 3G may change up the enhancement possibilities for State Jails, too.

I like your post so much