Section II. Offenses with Specific Enhancement Provisions

ENHANCEMENTS: How To Earn A Free Extended Stay In A Gated Community

Patrick S. Metze1

Section I. Basic Concepts………………………………………………………………………………….…………………………3 Section II. Offenses with Specific Enhancement Provisions…………………………….…………………………..5 Section III. Enhancement of Misdemeanors: Texas Penal Code §12.43………….………………………….11 Section IV. State Jail Felonies: Texas Penal Code §12.35……………………………….…………………………..12 Section V. Enhancement of State Jail Felonies: Texas Penal Code §12.425…….………………………….13 Section VI. Enhancement of Felonies: Texas Penal Code §12.42……….………………………………………18

A CLE paper such as this cannot and should not substitute for your own research. I was asked to speak for 45 minutes on enhancements at the 33rd Annual Rusty Duncan Advanced Criminal Law Course. In addition, I was asked to prepare this paper. This topic could take days to thoroughly cover it. For many years, I have been a fixture at Lubbock Criminal Defense Lawyer Association’s Prairie Dog seminar on this topic and the majority of what I talk about is state jail felonies and the black letter law of enhancements. There are three reasons for this.

First, from my experience, those that benefit the most from CLE’s are the young lawyers trying to be diligent in their criminal preparation. Most of my career I remember spending my time in the books after I got a new case. First, I would read the penal code statute, then I would read every case until I felt I had a firm handle on the law. After that I would research the facts of my case, including my client’s version, and then re-read the law – both statutes, case law and secondary sources. Over the years, I have found getting more experience practicing law is the biggest impediment to my doing a good job. Whenever I think I know the answer without researching, I make a mistake. Our mantra at Texas Tech’s clinical program is to read the statute,

1 Professor of Law and Director of Criminal Clinics at Texas Tech University School of Law; additionally teaches in the areas of Capital Punishment and Texas Juvenile Law. B.A. Texas Tech University 1970; J.D. The University of Houston 1973. Thanks to my colleagues on the faculty of the Tech Law School who graciously gave me the opportunity to do this work, and in particular my friends, Professors Donnie Yandell and Dwight McDonald who, by their example, inspire me and motivate me to continue to do this work. My special appreciation goes to my research assistant, Brianna Weis, for her hard work, cheerful professionalism and brilliant mind. Someone needs to give her a job doing criminal law before the civil firms take her away.

read the statute, read the statute, read the statute, read the statute….got it? Case law is helpful, but only after you have….wait for it…. READ THE STATUTE. Second, in 1993 the legislature created an intermediate crime somewhere between misdemeanors and felonies. These state jail felonies have allowed the politicians to attack the drug wars, petty theft, and other nuisance criminal behavior that takes so much time and money to enforce. During a time of increasing zero tolerance, the creation of the state jail crime resulted in more people in jail than ever without rehabilitation or community supervision and the legislature struggled with how to address their creation. As they always do, they imaged enhancing repeat offenders of these new crimes, with draconian collateral consequences, as the solution. Therefore, punishments, enhancements and collateral consequences for state jail crimes have been in flux ever since creation. I still do not believe all attorneys understand the basic structure of state jails, much less the application of enhancement statutes to all level of crime. I am convinced this applies to most assistant district attorneys and I do not think it is our job to educate them but to take advantage of their lack of knowledge. Therefore, I have prepared this paper and my presentation based on the black letter law of enhancements, supplemented with case law. Use this paper to begin YOUR research. Keep it handy to refresh your memory but grab the books. I promise you, after the next legislative session, much of what is here may well be out of date. Third, I have found most experienced lawyers get lazy. They shoot from the hip, take the path of least resistance, refuse to spend the time reading the law as they did when they were younger, get off court appointment lists, rely on their associates and law clerks to tell them the law, and basically avoid doing the hard work of being a lawyer. I am sure this doesn’t apply to you, but you know about whom I speak. This is not an indictment of the many lawyers that have practiced at the highest level during their entire career, but face it, lawyer jokes and public attitudes about lawyers are based on the public’s experience dealing with those that do our work. So, with my presentation and this paper I emphasize the basics of enhancements so the young lawyer will benefit from a thorough understanding of the constructs of this area of the law and for the older, more experienced lawyer, who can use a quick reference to this basic information. I am not worried about those that practice at the highest level. They will take care of themselves. So, I do not spend much time on enhancements as applied to our clients facing upper level felony charges. Lawyers that represent repeat serious offenders charged with very serious crimes, often facing habitual enhancements including potential mandatory life sentences and the death penalty, do not need my help. Let’s begin.

Section I. Basic Concepts

There are a few basic concepts the attorney must understand about enhancements. Texas Penal Code §12.46. The use of a prior conviction to enhance does not preclude the subsequent use of that conviction for enhancement.2 Often I hear lawyers ask if a conviction can be used over and over again to enhance. The answer is yes. A few other issues have been raised in case law, however. Use of prior conviction to establish jurisdiction and to enhance punishment. The state cannot use the prior conviction to both prove an essential element of the offense charged and for enhancement purposes in the same indictment.3 There is a difference between the use of a prior conviction to establish jurisdiction (offense level) and to increase the punishment. So, first determine if the use of the prior conviction is being used to establish jurisdiction or to enhance the punishment. If the state is trying to use the same prior conviction for both purposes in the same case, this is improper.4 What is the date of a final prior conviction? In White v. State, the court noted that for felonies the sentence is the final judgment and that is what the prosecution must prove in order to show a conviction is final.5 The court noted recently that generally an imposition of a sentence is needed to establish a conviction is final.6 Additionally, a sentence is not final if either the sentence has been suspended and probation granted, or the probation was successfully served.7 But, if the probation is revoked, that sentence can become a final conviction.8 In Martinez v. State, the court acknowledged it had long noted that a sentence generally must be produced “to establish the finality of a conviction” for jurisdictional or enhancement purposes.9 However, the judgment in Martinez was used to revoke the defendant's probation, the defendant introduced the judgment, and failed to timely object, so the trial judge could find the judgment as proof of conviction.10 If the exact dates of the prior offenses are not considered to be elements of the current primary offense, the law/statute of the present offense is the one utilized.11

2 Texas Penal Code §12.46. 3 Wisdom v. State, 708 S.W.2d 840, 845 (Tex. Crim. App. 1986) [The state was barred from using a prior rape conviction to enhance the offense punishment, after the prior conviction had been used to allege an essential element of the new charge.]; See Hernandez v. State, 929 S.W.2d 11, 13 (Tex. Crim. App. 1996). 4 Id. See Rivera v. State, 957 S.W.2d 636 (Tex. App. Corpus Christi 1997), petition for discretionary review refused, (May 6, 1998) [felony DWI]. 5 White v. State, 353 S.W.2d 229, 231 (Tex. Crim. App. 1961). 6 Ex parte Pue, 552 S.W.3d 226, 230–31 (Tex. Crim. App. 2018), reh'g denied (May 23, 2018). 7 Id. at 230. But see Comeaux. v. State, 151 S.W.3d 710, 713 (Tex. App. – Beaumont 2004, no pet.) The Court decided a successfully completed and subsequently discharged “regular” community supervision can be used to enhance punishment for later offenses when the provision permitting such enhancement did not exist at the time the “regular” community supervision was imposed in lieu of incarceration. Id. 8 Id. at 231. 9 Martinez v. State, 531 S.W.2d 343, 345 (Tex. Crim. App. 1976). 10 Id. 11 See Tietz v. State, 256 S.W.3d 377, 378 (Tex. App.—San Antonio 2008, pet. ref'd); State v. Mason, 980 S.W.2d 635, 641 (Tex.Crim.App.1998).

Currently pending in the Court of Criminal Appeals is Ex Parte McMillan. 12 McMillan contends, among other things, that her sentence is illegal because the prior conviction used as an enhancement an un-revoked, probated sentence from federal court. The CCA ordered the application filed and the matter set for submission.13 So, soon the use of such sentences for enhancement purposes may be affected. Or, may not.

Conviction when case appealed. “The longstanding precedent in Texas regarding the finality of convictions is unambiguous. Convictions for enhancement purposes are not final in cases in which the sentence has been suspended and probation granted; a conviction is not final for enhancement purposes unless that probation is revoked.”14 The prior conviction becomes final when the appellate court issues its mandate after affirming a conviction.15

As to Felonies, only trips to prison count. The good news is that usually only trips to the prison count toward enhancement. A probated sentence is not a final conviction for enhancement purposes until the probation is revoked.16 Limitation. There are two limitations to this general rule. A prior foreign conviction for an offense containing elements substantially similar to the elements of the charged offense listed under subsection Texas Penal Code §12.42(c)(2)(B) [sex crimes] may be used to enhance punishment in Texas, even if the sentence for that foreign conviction was probated and the probation was not revoked.17 Second, see discussion below on Texas Penal Code §12.42(g)(1) and the use of prior sex crime “convictions” if the defendant was adjudged guilty or entered a plea of guilty or nolo contendere in return for a grant of deferred adjudication. This enhancement

12 Ex Parte McMillan, WR-88,970-01, 2020 WL 729772 (Tex. Crim. App. Feb. 12, 2020). 13 Id. The matter was ordered submitted “to determine (1) whether Ex parte Pue, 552 S.W.3d 226 (Tex. Crim. App. 2018), announced a new rule for purposes of retroactivity; (2) if Pue announced a new rule, whether it is a substantive or procedural rule; and (3) whether one of the exceptions to the general rule of retroactivity applies. See Teague v. Lane, 489 U.S. 288, 307 (1989). 14 State v. Burnett, Court of Appeals of Texas, El Paso. December 11, 2019 Not Reported in S.W. Rptr.2019 WL 6725999. See Pue v. State, 552 S.W.3d at 235; Ex parte Langley, 833 S.W.2d 141, 143 (Tex. Crim. App. 1992)(citing Ex parte Murchinson, 560 S.W.2d 654, 656 (Tex. Crim. App. 1978)). 15 Beal v. State, 91 S.W.3d 794, 794-95 (Tex. Crim. App. 2002). ) One limitation is in the context of a civil commitment order, a prosecution for non-compliance of the court’s order is effective immediately and is not dependent on the order being final. Such prosecutions may proceed even when the order is on appeal. Bohannan v. State, 546 S.W.3d 166 (Tex. Crim. App. 2017) 16 Jordan v. State, 36 S.W.3d 871, 875 (Tex. Crim. App. 2001); Ex parte Murchison, 560 S.W.2d 654, 656 (Tex. Crim. App. 1978) 17 Texas Penal Code §12.42(g)(2); See Ex parte White, 221 S.W.3d 316, 319 (Tex. Crim. App. 2007); See also the mandatory life provision in Texas Penal Code §12.42(c)(2)(B) or repeat sexual offenders who had deferred or regular probation and completed it. Texas Penal Code §12.42(g)(1). See Crabtree v. State, 389 S.W.3d 820, 828 (Tex. Crim. App. 2012) [re: sex-offender registration].

is allowed regardless of the sentence, whether it was ever imposed, probated or defendant was discharged from probation.18

Use of Misdemeanor convictions. “Rather, it is clear the legislature intended to permit the State to utilize misdemeanor convictions to elevate an otherwise misdemeanor offense to a felony, whether the punishment in the prior cases was probated, suspended, or imposed.”19

Constitutionality. The enhancement statutes are constitutional, even if there is alleged lack of uniformity in application and administration.20 The enhancement statutes were intended to be reformatory in nature, and thus, allows for an increase in punishment for defendants who continue in the perpetration of crime.21 Prosecutorial discretion. Both Texas and federal courts recognize that prosecutors have broad discretion in deciding which cases to prosecute. Thus, “[i]f the prosecutor has probable cause to believe that the accused committed an offense defined by statute, the decision whether to prosecute and what charge to file generally rests entirely within his or her discretion.”22

Don’t forget, use of a prior conviction to enhance is within the prosecutor’s discretion. She never has to use a prior conviction, and if the decision is made to attempt enhancement, that decision can always be waived and is a chip that should be used in the defense strategy. Don’t forget they have to prove enhancements and often this is not easy. Old judgments often do not have readable fingerprints on them and the availability of someone who witnessed the plea is unlikely. When a young DA tells you because of a prior conviction what the punishment must be, remember they must prove that prior. Often it is just a bluff. “[T]he state may allege and prove a previous conviction for the purpose of enhancing the punishment under the applicable enhancement statute.”23

Section II. Offenses with Specific Enhancement Provisions

18 Texas Penal Code §12.42(g)(1). 19 Williamson v. State, 46 S.W.3d 463, 466 (Tex. App.—Dallas 2001, no pet.). 20 See Mackie v. State (Tex. Crim. App. 1963) 367 S.W.2d 697, 699. 21 Linley v. State, 501 S.W.2d 121, 123 (Tex. Crim. App. 1973). 22 State v. Malone Serv. Co., 829 S.W.2d 763, 769 (Tex.1992); Bordenkircher v. Hayes, 434 U.S. 357, 364, 98 S.C. 663, 54 L.Ed.2d 604 (1978); See Roberts v. Louisiana, 428 U.S., at 349, 96 S. Ct. 3001, 3013 (J. White, dissent). As to plea bargaining, Justice White similarly reacted, viz: “... A prosecutor may seek or accept pleas to lesser offenses where he is not confident of his first-degree murder case, but this is merely the proper exercise of the prosecutor's discretion as I have already discussed.... Whatever else the practice may be, it is neither inexplicable, freakish, nor violative of the Eighth Amendment. Nor has it been condemned by this Court under other provisions of the Constitution.” Id. 23 Stephens v. State, 377 S.W.2d 189, 191 (Tex. Crim. App. 1964) [emphasis added].

The general enhancement statutes are located in Texas Penal Code §12.43 for misdemeanors,24 Texas Penal Code §12.425 for state jail felonies,25 and Texas Penal Code §12.42 for other felony offenses.26 As to misdemeanors, offense specific statutory enhancement provisions, that are usually located within a specific Penal Code section, control over the general rule.27 “If the punishment scheme for an offense contains a specific enhancement provision increasing punishment for a defendant who has previously been convicted of the offense, the specific enhancement provision controls over this section.”28 By the insertion of this language at the end of the general misdemeanor enhancement statute, it is clear the legislature intended to apply this specific enhancement provision to misdemeanors only. No such language is in the state jail or felony enhancement statutes.

Examples of specific statutory enhancement provisions. Years ago, I attempted to enumerate all the statutes with specific enhancement provisions. This quickly became a life’s work. For example, 1. drug offense classifications are most often enhanced based upon the quantity and type of drug involved;29 2. manufacture of drug paraphernalia’s punishment is increased with a minimum jail time with a prior conviction;30 3. drug and school zones increase drug31 and weapon charge32 punishments based on the location of the crime; 4. driving while license invalid enhances the level of offense within the statute (not punishments);33 5. no liability insurance tickets remain an undesignated “misdemeanor” but the fine is greatly increased with a prior conviction;34 6. the domestic violence assault statute raises the level of offense from misdemeanor to felony based on a prior conviction;35 7. the level of offense in the violation of a protective order statute is increased to felony level for various reasons including prior convictions;36

24 See discussion infra Section III. 25 See discussion infra Section IV. 26 See discussion infra Section V. 27 See discussion immediately following as to driving while intoxicated, theft and domestic assault. 28 Texas Penal Code §12.43(d). 29 Health and Safety Code, Title 6, Chapter 481. Texas Controlled Substances Act. 30 Texas Health & Safety Code § 481.125(e). Normally a Class A misdemeanor, unless it is shown on the trial of a defendant that the defendant has previously been convicted…, in which event the offense is punishable by confinement in jail for a term of not more than one year or less than 90 days. Id. 31 Health and Safety Code §481.134. 32 Texas Penal Code §46.11. 33 Texas Transportation Code § 521.457. 34 Texas Transportation Code §601.191. 35 Texas Penal Code §22.01(b)(2). 36 Texas Penal Code §25.07.