November-December 2016

State jail dungeons and bad judgment dragons

Jon English

Prosecutor with the ­Special Prosecution Unit

How to use a prosecutor’s inherent nerd-magic, attention to detail, and desire to see that justice is done to keep punishment ranges accurate

Let’s be honest. I mean, let’s be totally, totally honest here. We didn’t become prosecutors on account of the fact that we are not nerds. We are nerds.
    All prosecutors eventually assimilate and embrace our nerd-dom; those who don’t will become probate attorneys sometime in the next calendar year. Being that we are nerds, we embrace the trivial and the trifling. We wield them like swords, swords we have named Glamdring and Longclaw—because nerd. You say things like, “The Millenium Falcon made the Kessel Run in less than 12 parsecs.” To which someone else replies, “A parsec is a unit of distance, not time.” Because nerd.
    You lose your mind when someone on Facebook accidentally types “there” instead of “their” or “they’re.” You shame them in the comments section because your [sic] that guy. Because nerd.
    My point is that we are all about the little things. We enjoy knowing the little things and applying them and showing people up when they don’t know the little things. These are skills nerds develop early in life to protect themselves from predators.
    So please, please tell me why so many otherwise nerdy and detail-oriented prosecutors constantly conflate enhanced punishment ranges with enhanced degrees of offenses?
     I’ll wait while you think about it. [Elevator Muzak plays Rush’s “Tom Sawyer” in the background for 30 seconds. Because nerd!]
      Many prosecutors (and judges) who are much smarter than me (or you) have botched this one before. Because it’s one of those things you don’t need to know until you need to know it. So let’s assume you need to know it right now, before you end up reversed on appeal and looking down shamefully at your orthopedic dress shoes through your non-ironic-but-in-fact-medically-necessary-Coke-bottle glasses.

Enhancements vs. enhancements
We deal with two types of enhancements. Sometimes, we are actually enhancing the degree of the crime we are prosecuting, so a DWI goes from a Class B misdemeanor to a Class A misdemeanor to a third-degree felony based on whether it’s a defendant’s first, second, or anything-more-than-second offense. And with each increase in the severity of the crime’s degree, the punishment range becomes more severe. To wit: DWIs in the above example go from a max of 180 days in jail, to 365 days in jail, to 10 years in prison.
    But there’s another type of enhancement: enhancing the punishment range of the offense without enhancing the degree of the offense. And this is actually what happens most of the time in felonies. Under the enhancement schemes in Chapter 12 of the Texas Penal Code, one type of felony can be enhanced and punished as if it were a more severe felony. But the degree of the felony stays the same.
    Let’s say you’re charging someone with assaulting a public servant. It’s a third-degree felony. The punishment range is two to 10 years. Now let’s say the defendant has a prior conviction for possession of cocaine. That makes him a repeat offender, and the defendant may be looking at 20 years instead of only 10.
    But here’s the important thing: Only the punishment range has changed. The enhancement does not mean that upon conviction, this defendant now has a second-degree felony on his record. More specifically—and more importantly for the record—the judgment the court signs should not say that the defendant was convicted of a second-degree felony. Because he was not. He was convicted of a third-degree felony, with an enhanced punishment range of up to 20 years.
    We don’t like the way that looks. Judges and support staff don’t either. Because we know—we know—that a third-degree felony doesn’t have a 20-year punishment range. If you are in a county where you print up your own judgments, your clerk may tell you you’ve made a mistake and insist you change it, or your judge might think there’s an error and cross it out and change it on her own.
    But that clerk and that judge would be wrong. And if you go along with it, you’re wrong too. If the statute says an offense “shall be punished for a felony of the [blank] degree” and not “is a felony of the [blank] degree,” then the offense doesn’t change. Just the punishment.

Why does it matter?
Third-, second-, and first-degree felonies are almost never going to come back to bite you if you mistakenly upgrade them, but they might bite the defendant. A first-degree felony is worse than a second-degree felony. And in the event, however unlikely, that the defendant gets into the free world and has someone pull his criminal history in a way that reflects the more severe offense classification, that defendant could potentially pay a price the legislature has not authorized us to impose on him.
    But there are too many hypotheticals in that situation. Let me give you a real example of how it could cost you a punishment and make you redo a phase of a trial.
    Say a defendant has committed a state jail felony. But you look at his history and see that he has previously committed a third-degree felony and multiple state jail felonies. And upon the conviction for that last state jail felony, he did three years in prison.  
    “A-ha!” you say to yourself. “So that means the last state jail felony was actually a third-degree felony! That means he is now a repeat offender! I can make this offense a second-degree felony and he’s looking at 20 years!”
    And if you find yourself saying this, you have just fallen victim to one of the classic blunders.
    The previous state jail felony conviction, despite the fact the punishment range was enhanced to a third-degree felony range, is still just a state jail felony. You cannot morph it into a third-degree felony like it’s a Pidgey evolving into a Pidegeotto. That also means you cannot enhance the defendant’s new felony with the more severely punished state jail felony.
    And unfortunately, this isn’t a hypothetical scenario. This exact misfortune was suffered by one of our own in the summer of 2015.  

Thomas v. State
Cody Lang Thomas was charged with a state jail felony for theft between $1,500 and $20,000. At both the pre-trial hearing and the sentencing hearing, the court, the State, and the defendant worked carefully together through the enhancement allegations. Thomas had previously served three years on a burglary of a building charge, a state jail felony that was punished as a third-degree felony because Thomas also had two previous state jail felony convictions. The coups de grâce was the conviction for escape Thomas picked up in 2004 (a third-degree felony).
    There was no ambiguity from any of the parties on what these previous convictions meant in the instant case. The judge, the State, and the defense all agreed on the record that because Thomas had been to the pen two separate times, this latest state jail felony could be enhanced to a second-degree felony. Thomas was sentenced to 20 years, a sentence twice as long as the maximum allowed by law.
    The Texarkana Court of Appeals overturned this sentence in one of the most helpful, most clearly written opinions you’re ever likely to see from a lower appeals court in Texas. Relying on precedent from both the Court of Criminal Appeals and its sister courts in Houston, the Sixth Court of Appeals ruled that when it comes to enhancements, there are two types of felonies: state jail felonies and non-state jail felonies. And when it comes to enhancing state jail felonies, there are three subdivisions: standard state jail felonies, aggravated state jail felonies, and enhanced state jail felonies. (See the PDF below for an at-a-glance explanation of the differences.)
    Standard state jail felonies are exactly what they sound like: They are state jail felonies punished by not less than 180 days and not more than two years in a state jail.
    Aggravated state jail felonies are state jail felonies for which there is a punishment range equal to a third-degree felony due to some kind of aggravating factor. These types of state jail felonies can be found in §12.35 of the Penal Code.
    Enhanced state jail felonies are state jail felonies for which there is a punishment range equal to either third- or second-degree felonies based on the defendant’s criminal history. This enhancement scheme is found in §12.425 of the Penal Code.
    The nomenclature is so important in describing these offenses. The underlying noun is still “state jail felony” despite the preceding adjectives. Sticking to this language is what keeps prosecutors out of trouble. If we let ourselves (or the defense or even the judge) start referring to the offense as if it has been enhanced by the punishment (e.g., saying, “it’s a third-degree felony” instead of “it’s an aggravated state jail felony”), someone is going to make a mistake. And mistakes and justice just don’t hang out together very often. The court of appeals remanded Thomas for a new sentencing hearing—but also note that the Court of Criminal Appeals granted a petition for discretionary review on it in May.

The reason God invented nerds is because we are tasked with providing precision to the universes, both DC and Marvel. It’s a burden and no mistake. But for prosecutors, it’s more than just our responsibility: It’s our calling. Our attention to detail is the dilithium crystals that power the warp-drive of justice.
    This responsibility will require us to politely and respectfully explain to the judge, clerks, and maybe even your boss that the judgments and record shouldn’t reflect enhanced offenses just because the punishment has been enhanced. But if you can survive spending all of ninth grade stuffed in your locker, you can survive that conversation.
    The next time you’re thinking about letting something trivial go rather than correct it when you have a chance, just remember this important lesson from The Matrix: “You step onto the road, and if you don’t keep your feet, there’s no knowing where you might be swept off to.” —Hagrid to Agent Scully before they entered the Stargate.


1 See Tex. Penal Code §12.42.

2  The most famous of which is, “Never get involved in a land war in Asia.”

3 See Thomas v. State, 481 S.W.3d 685 (Tex. App.—Texarkana 2015, PDR granted on other grounds).

4  Id. at 689.

5  Id. at 690.

6  Not really. Obviously this is Frodo quoting Bilbo in The Fellowship of the Ring. But if it made you twitch a bit when you read it, you passed the test.