§ 12.42: Penalties for Repeat & Habitual Felony Offenders on Trial for 1st, 2nd, Or 3rd Degree Felony

§ 12.42. PENALTIES FOR REPEAT & HABITUAL FELONY OFFENDERS ON TRIAL FOR 1ST, 2ND, OR 3RD DEGREE FELONY

(a) Except as provided by Subsection (c)(2) or (c)(4), if it is shown on the trial of a felony of the third degree that the defendant has previously been finally convicted of a felony other than a state jail felony punishable under Section 12.35(a), on conviction the defendant shall be punished for a felony of the second degree.

(b) Except as provided by Subsection (c)(2) or (c)(4),, as amended by Chapter 1119 (H.B. 3), Acts of the 82nd Legislature, Regular Session, 2011, if it is shown on the trial of a felony of the second degree that the defendant has previously been finally convicted of a felony other than a state jail felony punishable under Section 12.35(a), on conviction the defendant shall be punished for a felony of the first degree.

(c) (1) If it is shown on the trial of a felony of the first degree that the defendant has previously been finally convicted of a felony other than a state jail felony punishable under Section 12.35(a), on conviction the defendant shall be punished by imprisonment in the Texas Department of Criminal Justice for life, or for any term of not more than 99 years or less than 15 years. In addition to imprisonment, an individual may be punished by a fine not to exceed $10,000.

(2) Notwithstanding Subdivision (1), a defendant shall be punished by imprisonment in the Texas Department of Criminal Justice for life if:

(A) the defendant is convicted of an offense:

(i) under Section 20A.02(a)(7) or (8), 21.11(a)(1), 22.021, or 22.011, Penal Code;

(ii) under Section 20.04(a)(4), Penal Code, if the defendant committed the offense with the intent to violate or abuse the victim sexually; or

(iii) under Section 30.02, Penal Code, punishable under Subsection (d) of that section, if the defendant committed the offense with the intent to commit a felony described by Subparagraph (i) or (ii) or a felony under Section 21.11, Penal Code; and

(B) the defendant has been previously convicted of an offense:

(i) under Section 43.25 or 43.26, Penal Code, or an offense under Section 43.23, Penal Code, punishable under Subsection (h) of that section;

(ii) under Section 20A.02(a)(7) or (8), 21.02, 21.11, 22.011, 22.021, or 25.02, Penal Code;

(iii) under Section 20.04(a)(4), Penal Code, if the defendant committed the offense with the intent to violate or abuse the victim sexually;

(iv) under Section 30.02, Penal Code, punishable under Subsection (d) of that section, if the defendant committed the offense with the intent to commit a felony described by Subparagraph (ii) or (iii); or

(v) under the laws of another state containing elements that are substantially similar to the elements of an offense listed in Subparagraph (i), (ii), (iii), or (iv).

(3) Notwithstanding Subdivision (1) or (2), a defendant shall be punished for a capital felony if it is shown on the trial of an offense under Section 22.021 otherwise punishable under Subsection (f) of that section that the defendant has previously been finally convicted of:

(A) an offense under Section 22.021 that was committed against a victim described by Section 22.021(f)(1) or was committed against a victim described by Section 22.021(f)(2) and in a manner described by Section 22.021(a)(2)(A); or

(B) an offense that was committed under the laws of another state that:

(i) contains elements that are substantially similar to the elements of an offense under Section 22.021; and

(ii) was committed against a victim described by Section 22.021(f)(1) or was committed against a victim described by Section 22.021(f)(2) and in a manner substantially similar to a manner described by Section 22.021(a)(2)(A).

(4) Notwithstanding Subdivision (1) or (2), and except as provided by Subdivision (3) for the trial of an offense under Section 22.021 as described by that subdivision, a defendant shall be punished by imprisonment in the Texas Department of Criminal Justice for life without parole if it is shown on the trial of an offense under Section 20A.03 or of a sexually violent offense, committed by the defendant on or after the defendant’s 18th birthday, that the defendant has previously been finally convicted of:

(A) an offense under Section 20(A).03, or of a sexually violent offense; or

(B) an offense that was committed under the laws of another state and that contains elements that are substantially similar to the elements of an offense under Section 20A.03 or of a sexually violent offense.

(5) A previous conviction for a state jail felony punishable under Section 12.35(a) may not be used for enhancement purposes under Subdivision (2).

(d) Except as provided by Subsection (c)(2) or c(4), as amended by Chapter 1119 (H.B. 3), Acts of the 82nd Legislature, Regular Session, 2011, if it is shown on the trial of a felony offense other than a state jail felony punishable under Section 12.35(a) that the defendant has previously been finally convicted of two felony offenses, and the second previous felony conviction is for an offense that occurred subsequent to the first previous conviction having become final, on conviction the defendant shall be punished by imprisonment in the Texas Department of Criminal Justice for life, or for any term of not more than 99 years or less than 25 years. A previous conviction for a state jail felony punishable under Section 12.35(a) may not be used for enhancement purposes under this subsection.

(e) Repealed.

(f) For the purposes of Subsections (a), (b), and (c)(1), an adjudication by a juvenile court under Section 54.03, Family Code, that a child engaged in delinquent conduct on or after Jan. 1, 1996, constituting a felony offense for which the child is committed to the Texas Juvenile Justice Department under Section 54.04(d)(2), (d)(3), or (m), Family Code, or Section 54.05(f), Family Code, or to a post-adjudication secure correctional facility under Section 54.04011, Family Code, is a final felony conviction.

(g) For the purposes of Subsection (c)(2):

(1) a defendant has been previously convicted of an offense listed under Subsection (c)(2)(B) if the defendant was adjudged guilty of the offense or entered a plea of guilty or nolo contendere in return for a grant of deferred adjudication, regardless of whether the sentence for the offense was ever imposed or whether the sentence was probated and the defendant was subsequently discharged from community supervision; and

(2) a conviction under the laws of another state for an offense containing elements that are substantially similar to the elements of an offense listed under Subsection (c)(2)(B) is a conviction of an offense listed under Subsection (c)(2)(B).

(h) In this section, “sexually violent offense” means an offense:

(1) described by Article 62.001(6), Code of Criminal Procedure; and

(2) for which an affirmative finding has been entered under Article 42.015(b) or 42A.105(a), Code of Criminal Procedure, for an offense other than an offense under Section 21.02 or 22.021.

Generally

Capuchino v. Estelle, 506 F.2d 440, 443 (5th Cir. 1975). “In recidivist or habitual offender proceedings there is no denial of due process when the jury which decides guilt is informed by the indictment and the evidence that defendant has been convicted of prior offenses.”

Ex parte Vela, 460 S.W.3d 610, 616 (Tex. Crim. App. 2015). “Because the remand for a new punishment hearing in the aggravated-robbery case caused the aggravated-robbery sentence to be removed from the stacking order and because the trial court did not choose to stack the new aggravated-robbery sentence onto the sentence in the heroin case, the sentences in the two cases are running concurrently.” Habeas relief from order stacking sentences granted.

Grado v. State, 445 S.W.3d 736, 740-743, (Tex. Crim. App. 2014). “’[T]he right to be sentenced under the correct statute by sentencing authority who has meaningfully considered the appropriate range of punishment’ falls under Marin v. State’s second category; a right that ‘must be implemented by the [legal] system unless expressly waived; and therefore does not require a contemporaneous objection.” ”We can easily conclude that the right to be punished after consideration of the full range of punishment falls outside of Marin’s first category. This right is not an absolute right because it is waivable or forfeitable by the parties . . . The nature the right Grado seeks to vindicate leads us to conclude that it is one that is a significant feature of our judicial system and should be classified as a Marin category-two right . . .”[W]e hold that Grado’s complaint was not procedurally defaulted. And because the record does not reveal an effective waive of the right at issue, we further hold that the court of appeals properly entertained the merits of Grado’s complaint.”

Samaripas v. State, 454 S.W.3d 1, 7 (Tex. Crim. App. 2014). “Here, Appellant was not punished under Section 12.35(a). His prior state-jail felony had been enhanced, and he was punished for that offense under Section 12.42(a)(2). Therefore, the prior offense was properly used for enhancement purposes, and the court of appeals did not err in overruling this issue.”

Roberson v. State, 420 S.W.3d 832, 838 (Tex. Crim. App. 2013). “A plea of true to an enhancement paragraph relieves the state of its burden to prove a prior conviction alleged for enhancement and forfeits the right to appeal the insufficiency of evidence to prove the prior conviction, but there is an exception when the record affirmatively reflects that the enhancement itself was improper.”

Ex Parte Parrott, 396 S.W.3d 531 (Tex. Crim. App. 2013). Improper Section 12.42(a)(3) Texas Penal Code enhancement was harmless (“fictional harm”) because defendant had other felony convictions that justified the enhancement.

Jordan v. State, 256 S.W.3d 286, 291-92 (Tex. Crim. App. 2008). “[W]hen the State seeks to enhance a defendant’s sentence for the primary offense by alleging that a defendant has a prior conviction [under Tex. Penal Code Ann. §§ 12.42-12.43], and the defendant enters a plea of not true, the factfinder must decide whether the State has sustained its burden by entering a finding that the enhancement allegation is either true or not true. In essence, the assessment of punishment involves two types of deliberations when the State has alleged, and the defendant has entered a plea of not true to, a prior conviction used for enhancement purposes. First, the factfinder engages in a deductive, discrete fact-finding process to determine whether the State has proved that the enhancement allegation is true. And second, considering all of the evidence admitted during the guilt and punishment phases, the factfinder engages in a normative process that is uninhibited by any required, specific fact determination to decide what particular punishment to assess within the range prescribed by law.”

Ex parte Rich, 194 S.W.3d 508, 513 (Tex. Crim. App. 2006). “Despite the general rule that a plea of true to an enhancement paragraph relieves the State of its burden to prove a prior conviction alleged for enhancement and forfeits the defendant’s right to appeal the insufficiency of evidence to prove the prior conviction, there is an exception when the record affirmatively reflects that the enhancement is itself improper.”

Beal v. State, 91 S.W.3d 794, 794-95 (Tex. Crim. App. 2002). “Today we settle the question of which date should be used in determining the finality of a prior conviction alleged in an indictment for enhancement purposes. We hold that it becomes final when the appellate court issues its mandate affirming the conviction.”

Brooks v. State, 957 S.W.2d 30, 33 (Tex. Crim. App. 1997). A “defendant is entitled to notice of prior convictions to be used for enhancement. But alleging an enhancement in an indictment is not the only reasonable method of conveying such notice. At 34: As with deadly weapons findings, prior convictions used as enhancements must be pled in some form, but they need not be pled in the indictmentÐalthough it is permissible and perhaps preferable to do so. In this case, the requisite notice was conveyed by the State’s motion and the trial court’s order.”

Ex parte Sewell, 742 S.W.2d 393, 394-95 (Tex. Crim. App. 1997). “When the state seeks to have a defendant declared to be and punished as an ‘habitual offender,’ by so alleging in the indictment and attempting to establish those allegations during the punishment stage of the trial, and it is later found on appeal that the evidence is insufficient to sustain the enhancement paragraph allegations, or it is found on direct appeal or through post-conviction habeas corpus that one of the prior convictions that was alleged to enhance the punishment was void, the sentence will be set aside and, if the punishment issue was tried to the court, the cause will be remanded to the trial court to reassess punishment, or, if the punishment issue was tried to the jury, both the judgment of conviction and sentence will be set aside and the defendant will be entitled to a new trial on both guilt and punishment.”

Ex parte Langley, 833 S.W.2d 141, 143 (Tex. Crim. App. 1992). A “probated sentence is not a final conviction for enhancement purposes unless it is revoked. . . . A successfully served probation is not available for enhancement purposes. In the case of ‘shock’ probation, the defendant is also convicted, and punishment is assessed. However, sentence is imposed, but later the further execution of the sentence is suspended. . . . In ‘shock’ probation, when further execution of the sentence is suspended, the conviction becomes non-final for purposes of enhancement, and will not become final for such purposes unless revoked.”

Deloney v. Estelle, 713 F.2d 1080, 1084 (Tex. Crim. App. 1983). “Under Texas law, prior convictions can be used only once for the purposes of enhancing punishment. At 1085: At the same time that a prior conviction used successfully cannot be used for enhancement more than once, if the prior prosecution were not successful, then the state is free to use the prior convictions as enhancement in new prosecutions.”

Ex parte Blume, 618 S.W.2d 373, 376 (Tex. Crim. App. 1981). “[T]he Legislature intended to make convictions for felonies in federal courts as well as courts of other states available for enhancement purposes.”

Hudson v. State, 145 S.W.3d 323, 326 (Tex. App.—Fort Worth 2004, pet. ref’d). “An accused has a right to be advised that a greater penalty than is available for the charged offense will be sought. Such notice need not be pled in the indictment itself to be considered proper notice, so long as the State pled its notice of intent to enhance “in some form” prior to trial. ¦ Notice that an enhanced sentence will be sought is presumptively “reasonable” if given at least 10 days before trial.”

Sims v. State, 84 S.W.3d 768, 779-80 (Tex. App.—Dallas 2002, pet. ref’d). “[A]s a matter of law, appellant’s November 1995 juvenile felony adjudication cannot be considered a prior conviction for purposes of enhancement. An order of adjudication is not a conviction of a crime except as provided in §51.13(d) of the family code. Under [that section], only a felony adjudication in which a child engaged in conduct that occurred on or after January 1, 1996 can be a final felony conviction for enhancement purposes.”

Dominque v. State, 787 S.W.2d 107, 108 (Tex. App.—Houston [14th Dist] 1990, pet. ref’d). “Under Texas law, when probation is granted, no sentence is imposed. Therefore, a prior probated sentence entered by a Texas court would not be available to enhance punishment for a subsequent offense unless the probation had been revoked. ¦ However, when probation is granted under Louisiana law, it does constitute a final conviction for purposes of enhancement. At 109: We are satisfied that the State met its burden of proving that the conviction was considered ‘final’ under Louisiana law.”

§12.42(a)

Campbell v. State, 49 S.W.3d 874, 878 (Tex. Crim. App. 2001). “[A]s used in subsection 12.42(a), the terms ‘felony’ and ‘state jail felony’ are mutually exclusive; a defendant charged under subsection 12.35(a) who has previously acquired only state-jail felony convictions, whether sequential or non-sequential, must be punished for a third-degree felony under subsection 12.42(a)(1), rather than a second-degree felony under subsection 12.42(a)(2).”

Brown v. State, 14 S.W.3d 832, 832-33 (Tex. App.—Austin 2000, pet. ref’d). “Section 31.03(e)(4)(D) provides that theft of property having a value of less than $1500 is a state jail felony if the defendant ‘has been previously convicted two or more times of any grade of theft.’ Under this subsection, a defendant’s history of theft convictions, regardless of their number or degree, cannot elevate a subsequent theft of property worth less than $1500 beyond the status of a state jail felony. For this reason, the punishment for third offense theft under §31.03(e)(4)(D) cannot be enhanced pursuant to §12.42(a) by proof of additional felony theft convictions.”

§12.42(c)

Kennedy v. Louisiana, 128 S. Ct. 2641, 530, 540-41 (2008). The Eighth Amendment of the U.S. Constitution bars Louisiana from imposing the death penalty for the rape of a child where the crime did not result, and was not intended to result, in the victim’s death. Louisiana reintroduced the death penalty for rape of a child in 1995. Five States have since followed Louisiana’s lead, including Texas in Penal Code §§ 12.42(c)(3) and 22.021(a). Four of these States’ statutes, including Texas’, are more narrow than Louisiana’s in that only offenders with a previous rape conviction are death eligible.

Griffith v. State, 116 S.W.3d 782, 784 (Tex. Crim. App. 2003). “[W]e are called upon [to] decide whether Penal Code §12.42(c)(2)(B) includes the statutory predecessors to the offenses enumerated therein. We conclude that they do.”

Moore v. State, 54 S.W.3d 529, 541 (Tex. App.—Fort Worth 2001, pet. ref’d). “Because the life sentence required by penal code section 12.42(c)(2) is authorized by statute, its mandatory imposition without regard to mitigation evidence does not per se constitute cruel and unusual punishment within the meaning of the Eighth Amendment. At. 544: By enacting section 12.42(c)(2), the legislature mandated a life sentence for anyone who is convicted of the sexual assault of a child a second time. The legislature has an interest in removing habitual sexual predators of children from society and in protecting the children of this State. This basis is rational and sufficient for the legislature to require a mandatory life sentence for being convicted twice of sexually assaulting a child. Since the legislature created the scheme of indeterminate sentencing in criminal cases, it has the power to mandate a different sentencing scheme, within constitutional strictures, to send a clear signal to sex offenders that their conduct will not be tolerated.”

§12.42(d)

Jordan v. State, 256 S.W.3d 286, 291-92 (Tex. Crim. App. 2008). “The State carries the burden of proving beyond a reasonable doubt that a defendant’s second previous felony conviction was committed after the defendant’s first previous felony conviction became final. And when ‘there is no evidence to show that the offenses were committed and became final in the proper sequence, the defendant’s sentence may not be enhanced under the State’s habitual offender statutes.’ ¦ [E]ven if the State’s failure to prove the chronological sequence of punishment enhancement allegations is subject to a harm analysis, such a deficiency will never be considered harmless.”

State v. Webb, 12 S.W.3d 808, 811 (Tex. Crim. App. 2000). “Section 12.42(d) refers specifically to ‘the trial of a felony offense other than a state jail felony punishable under Section 12.35(a).’ (Emphasis added.). Thus, the enhancement is applied with reference to the offense tried. In the instant case, appellee was tried for a non-aggravated state jail felony, i.e., a state jail felony punishable under §12.35(a). Following his conviction, his punishment was then enhanced, pursuant to §12.42(a)(2), to the equivalent of a second degree felony. Regardless of the enhancement, appellee was tried for a state jail felony punishable under §12.35(a); that his punishment, as opposed to the offense itself; was then subject to enhancement does not change that fact. As such, §12.42(d) is not applicable to appellee.”

Tomlin v. State, 722 S.W.2d 702, 705 (Tex. Crim. App. 1987). Explaining how § 12.42(d) operates, the Court of Criminal Appeals has consistently said the “sequence of events must be proved as follows: (1) the first conviction becomes final; (2) the offense leading to a later conviction is committed; (3) the later conviction becomes final; (4) the offense for which defendant presently stands accused is committed.”

Comments

Acts 1973, 63rd Leg., p. 883, ch. 399, § 1, eff. Jan. 1, 1974. Amended by Acts 1983, 68th Leg., p. 1750, ch. 339, § 1, eff. Sept. 1, 1983; Acts 1985, 69th Leg., ch. 582, § 1, eff. Sept. 1, 1985; Acts 1993, 73rd Leg., ch. 900, § 1.01, eff. Sept. 1, 1994; Acts 1995, 74th Leg., ch. 250, § 1, eff. Sept. 1, 1995; Acts 1995, 74th Leg., ch. 262, § 78, eff. Jan. 1, 1996; Acts 1995, 74th Leg., ch. 318, § 1, eff. Jan. 1, 1996; Acts 1997, 75th Leg., ch. 665, § 1, 2, eff. Sept. 1, 1997; Acts 1997, 75th Leg., ch. 667, § 4, eff. Sept. 1, 1997; Acts 1999, 76th Leg., ch. 62, § 15.01, eff. Sept. 1, 1999; Acts 2003, 78th Leg., ch. 283, § 53, eff. Sept. 1, 2003; Acts 2003, 78th Leg., ch. 1005, § 2, eff. Sept. 1, 2003. amended by: Acts 2007, 80th Leg., Ch. 340, § 1, eff. September 1, 2007. Acts 2007, 80th Leg., Ch. 340, § 2, eff. September 1, 2007. Acts 2007, 80th Leg., Ch. 340, § 3, eff. September 1, 2007. Acts 2007, 80th Leg., Ch. 340, § 4, eff. September 1, 2007. Acts 2007, 80th Leg., Ch. 593, § 1.14, eff. September 1, 2007. Acts 2007, 80th Leg., Ch. 593, § 1.15, eff. September 1, 2007. Acts 2007, 80th Leg., Ch. 593, § 1.16, eff. September 1, 2007. Acts 2009, 81st Leg., H.B. 1969 § 25.150, eff. Sept. 1, 2009; Acts 2011, 82nd Leg., H.B. 3384 § 1, eff. Sept. 1, 2011; Acts 2011, 82nd Leg., H.B. 3 § 3, eff. Sept. 1, 2011; Acts 2011, 82nd Leg., H.B. 3384 § 3, eff. Sept. 1, 2011; Acts 2011, 82nd Leg., H.B. 3 § 4, eff. Sept. 1, 2011; Acts 2011, 82nd Leg., H.B. 3000 § 14, eff. Sept. 1, 2011; Acts 2011, 82nd Leg., H.B. 3384 § 4, eff. Sept. 1, 2011; Acts 2011, 82nd Leg., H.B. 3384 § 6, eff. Sept. 1, 2011. Acts 2013, 83rd Leg., H.B. 1302 § 12.42, eff. Sept. 1, 2013. Acts 2013, 83rd Leg., S.B. 511 § 12.42(f), eff. Dec. 1, 2013. Subsection (h) Amended by Acts 2015, 84th Leg., § 2.82, H.B. 2299, eff. Jan. 1, 2017.