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12.42(a)(2) and 12.42(d)

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April 21, 2008, 09:33
12.42(a)(2) and 12.42(d)
As I understand Webb, 12 SW3d 808, if a def is on trial for a state jail felony and is enhanced with prior felonies under 12.42(a)(2) it cannot be further enhanced by 12.42(d). Def appealed arguing illegal sentence primarily based on Webb and Fite, 60 SW3d 314 (state jail felony punished as misdemeanor cannot not be used under 12.42(d) because the conviction offense controls and offense excluded under 12.42(e))

My case is distinguishable. Def charged with 3d degree felony and one of the prior offenses alleged for enhancement was a state jail felony enhanced under 12.42(a)(2) (judgment form shows 2nd degree instead of state jail enhanced to second degree, but the offense of the conviction was statutorily a state jail offense). Some of the language in Webb would indicate that the offense would still be considered a state jail felony for enhancement purposes. (look at wehther the offense was punishable before enahancement under 12.35(a), then non-aggravated state jail felonies cannot be used for enhancement) But Webb also appears to focus on the fact that this is basically a double enhancement.

My question is does a prior state jail enhanced to a second degree under 12.42(a)(2) preclude it from use under 12.42(d) on a 3d degree felony offense. I have one unpublished case that indicates 12.42(e) would not apply because the prior was a conviction under 12.42(a)(2). Ricks v. State, No. 03-04-00044-CR, 2005 Tex. App. LEXIS 2988 (CoA - Austin April 21, 2005).
May 14, 2012, 16:48
pk--any memory of what happened here and if you had an appeal on the case?
May 16, 2012, 08:39
It was affirmed, PDR ref'd. The case is unpublished. Waggoner v. State, No. 11-07-00335-CR, 2009 Tex. App. LEXIS 4805 (Tex. App. -- Eastland June 5, 2009) Do not know if writ was filed, but the paperwork appellant relied on was outside the record and could not be considered. If you have more questions let me know.
July 25, 2012, 23:17

You might be in trouble. Most offenses enhanced don't change degrees, the code says they are "punished as" a higher degree. The notable exceptions are theft, 3rd DWIs, Evading... Those change offense level with priors.

A State Jail "punished as" something higher doesn't get you there. Ford v. State 334 S.W.3D 230 describes the difference