Patricia, please check your private topics for my message about this decision. It will allow flagrant violations of the enhancement law and is a perversion of double jeopardy law (in my humble opinion).

I agree that Harris does not apply to this situation. See reply in private topic.

Why privately say the court of appeals was DEAD WRONG?

Woolridge is a terrible opinion. Having already been reversed by the CCA by refusing to even look at the state's appeal, the CA now faces possible second reversal for their sophistic application of Harris.

For those who have not read, Woolridge: State enhanced felony case under habitual statute. Trial judge, thinking he was smarter than the legislature, decided the enhancements were no good because the prior convictions, if prosecuted under today's law, would have been state jail felonies. So, no enhanced punishment.

State appeals as illegal sentence. CA says they have no jurisdiction. CCA yanks their chain on that one and sends it back.

Then CA acknowledges the trial judge was DEAD WRONG but says they can't do anything about it because:

(1) trial judge didn't find enhancements "true"; and
(2) double jeopardy prevents resentencing.

Hello?

Of course the trial judge didn't find the enhancements true. He would have been a double fool to have done so. He already decided that the prior convictions didn't meet the statutory requirements (that was the legal mistake he made).

As for the double jeopardy issue, that is just silly. Resentencing is ordered all the time after an appellate court discovers legal mistakes made during a punishment hearing. Here, the mistake was that the trial judge mistakenly refused to consider the admissible evidence to support the enhancements. Remanding for resentencing would be an obvious legal remedy.

Now, I suppose that the CA also meant that the sentence was "legal" because it fell within the punishment range for a nonenhanced punishment. But that just begs the question: "DID IT FALL WITHIN THE ENHANCED PUNISHMENT RANGE THAT SHOULD HAVE BEEN APPLIED?

Sorry for all the caps. It makes me want to scream sometime to see the rigid, unthinking going on at the appellate level.

John Bradley
District Attorney
Williamson County, Texas

I did not mean to appear timorous. I just was not sure Patricia would want a public discussion of her case.

If the double jeopardy clause bars the relief requested by the State then it is indeed strange the CCA affirmed the 14th Court in Kersh and that Judge Holcomb was the only member to suggest the trial judge should have authority to disregard evidence as to the proper range of punishment. Furthermore, at least one court has recognized that a finding under sec. 12.42(d) may be implied. Merritt, 643 S.W.2d 448. And in this case when the trial court determined that the prior offenses were not "felony offenses" within the meaning of 12.42(d) it was necessarily finding the convictions existed. Otherwise there was no need for it to make such determination. Finally, one wonders if the Eastland court read (or understood)Mizell, 119 S.W.3d at 806.

Plans are to take it up. Not in line with Monge v. California, and have found several cases since Monge that agree. Discussed Harris as it came down the day Jeffrey argued this at CCA the first time. It is simply not applicable in my humble opinion - as stated apellate courts remand for new sentencing all the time.

Consider a PDR done on this one.

And, the CCA properly corrected the court of appeals. What an embarrassing case for the trial judge and court of appeals. Thank goodness for the state's right to appeal.

To read the CCA opinion, click here.

[Martin, this is the one I was betting on for $25. You must have been confused in the other thread.]

Then I guess you won your bet. You are right about the state's right of appeal. It can be critical.

I shall pay off myself immediately.

Be sure and get a receipt!

Isn't it nice when the CCA realizes a judge cannot violate a mandatory statute! It is about time. Defendant would have been out in May 09, serving his entire sentence, just like his previous sentences he just can't be a good boy in prison. He lost 400 good time days already. It will be nice to have him back and resentence properly finally.

I'm guessing, though, that your judge won't be giving him any more than the minimum 25 years. Is it possible that the judge would realize he probably has already announced a bias and should let someone else sentence?

The judge is now retired, but the new judge expects a request for the previous judge to re-sentence. I have not looked at the case law yet to see if he can require the retired judge to come back (from Mexico) to sentence him. Def atty said that he is filing a mot for reh'g, but did not say anything about the judge.

The defendant is not entitled to have the same judge (any more than the same jury) redo punishment. Perhaps a new judge would approach the case without any bias. Keep us posted on the re-sentencing.