Oooooops. I got this one wrong in my last post. Here’s the incorrect part:

Worst case scenario for stealing merchandise under $10 — Usually the answer would be a Class C misdemeanor, up to a $500 fine and no jail time possible, but… Enhanced with two prior thefts in Texas? State Jail felony, up to two years and a ten thousand dollar fine. Enhance that with two non-theft pen trips, three strikes you’re out, 25 to Life. (If you think I’m exaggerating, ask Leandro Andrade about his $153 theft. You did ask for worst case scenario, right?)

I’m cringing simply from reposting that; it’s just wrong, wrong, wrong. Houston defense lawyer Mark Bennett emailed me a few hours after the post went up:

I think you’re one felony shy of 25-life.

$10 theft
+ 2 prior thefts = SJF.
(+1 prior 3g conviction (per 12.35(c) OR +2 prior sequential pen trips (per 12.42(a)(2)) = 3F
+2 prior pen trips = 25-life (per 12.42(d)).

Yeah, I goofed. Let’s give it another shot. A 12.35(a) “regular state jail felony” can be enhanced to a 3rd degree felony in 3 ways. First, under Texas Penal Code 12.35(c), it is enhanceable to a 2-10 year felony if a deadly weapon is used in the commission of the offense itself, or secondly if the defendant has a prior 3g final conviction – meaning a pen trip, not a probation.

Third under 12.42(a)(1) an instant state jail with two prior state jails (not necessarily in sequence) is a third degree. And 12.42(a)(2) makes the state jail a second degree if there are sequential “real felony” priors, meaning TDC trips.

But I don’t think you can use a state jail felony enhanced with 2 trips, state jail or TDC, to either a third or second degree, and then use 12.42 again under the habitual offender statute, 12.42(d), to get to 25-life. See State v. White, 959 S.W.2d 375, where the state appealed a district court’s quashing of an enhancement on that same theory:

In its sole point, the State contends that state jail felonies enhanced under section 12.42(a)(2) are subject to further enhancement under the habitual offender provision of section 12.42(d). The premise of the State’s argument is that once a state jail felony is enhanced pursuant to section 12.42(a) it is no longer “a state jail felony punishable under Section 12.35(a),” and, therefore, punishment for the felony may be further enhanced under the habitual offender provision of section 12.42(d) because it constitutes “a felony offense other than a state jail felony punishable under Section 12.35(a).” Tex. Penal Code Ann. § 12.42(d).

The state lost that argument, and I think it’s still the law. (Side note: I’m not trying to one-up Mark. I already copped to being wrong, wrong, wrong, and, assuming I didn’t misunderstand him to start off with, he’s right about me being wrong, put it very kindly in his email, and is way less wrong than I was, if he’s even wrong at all… I was, at the very least, either one felony or one deadly weapon shy of “three-strikes-and-you’re-out”.)

One last note: you can’t use theft priors to enhance any misdemeanor theft past the state jail level. 31.03 Theft, that is… you can use burglary, etc., just not 31.03, because it contains a more specific enhancement statute that controls over 12.42. There’s caselaw on that too, but I’m too lazy to look it up right now.

Bottom line: it gets ridiculously complicated. Used to know this stuff a little better when I took court appointments on a regular basis. (Let’s just say that folks with this many priors, looking at this long of a ‘minimum’ sentence, have really high bonds and usually don’t get out of jail to hire a lawyer.)

And prosecutors are wrong about this stuff every day of the week, somewhere in the courthouse. Often on matters that you would think are substantially easier to figure out. One local lawyer – who I will link to, as soon as he reads this and tells me it’s OK – told me he had to reset a case the other day because his gentle attempts to “persuade” a new prosecutor that six years probation was more than the maximum on a first time offense regular state jail felony were unsuccessful. So you gotta mind your P’s and Q’s.

I’ve been writing this “ooooops” post on and off all day. And I could still be wrong on some of the details. As Fort Worth criminal defense lawyer Shawn Matlock likes to say at the end of many of his posts…

“But what the hell do I know?”