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?”

  • BSG

    “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.”

    I agree with that only because I had to look it up yesterday. And I agree it gets way too complicated.

  • Paige Turner

    I got caught stilling and now theft under 50 is on my record is there ever gone be a way of me getting it off? and how much can this effect me from getting a job???? (but trust i learned my lesson)

  • valencia

    what if its your first offence ????

  • Rebecca
  • Rebecca
  • Rebecca
  • AML

    I was ticketed for shoplifting under $50 in Travis County. This is my first offense. I am afraid of this affecting future employment. Will I be able remove this from my criminal record?

  • V

    So I got a ticket, Theft C – under $50, back in late August. Since I want this out of my record, I did all the community service hours, paid the fines, and went to the class that was required. The time limit they gave me to do this was before February, and what I had understood was that during August and February, whilst I did what I needed to in order to get this out of my record, I was in probation. My problem now is, though, that I checked the City of Austin Municipal Court Online Citation/Ticket Information AND IT’S STILL THERE.. even after I did everything!! It says that the status as of late February is Diferred Disposition, so does that mean that all this time I WASN’T in probation yet? I got told that I’d be in probation for 5 months, so do these 5 months start as of February? Is this really coming off my record?! I mean, I also went into the “Deferred Disposition” link and it states that, after I successfully complete my probation, “Nothing will go on [my] record outside of the Austin Municipal Court.” Does this mean that I will still have the theft record IN AUSTIN but not anywhere else!? I’m so confused!

  • Elba
  • elizabeth

    I was arrested at my place of employment for taking used books and dvds, we are allowed to take two books home a day, which sometimes I wouldn’t take any books home and keep those books at my work station and would take them home the next day, the owner had me arrested for taking too many books and dvds over a period of time saying it was a hundred dollars worth. I am 49 years old, never been arrested, also with a clean driving record, what is going to happen to me?

  • Rawly

    If someone can help me out I have a question. I had a Theft (Class A Misdemeanor), that is Enhanced due to 3 prior theft convictions

    Texas Penal Code § 31.03. THEFT (e)(4)
    (D) the value of the property stolen is less than
    $1,500 and the defendant has been previously convicted two or more
    times of any grade of theft;

    My question is, they have offered me 16 months and the maximum is 24, so I am taking it to jury trial. Regardless I would have taken it to jury either way. Will those priors used to facilitate the enhancement or can they be used as evidence in the trial phase.
    I do not plan to take the stand.
    But won’t the jury want to know how or why is this defendant getting charged with an SJF?
    So can the priors be introduced in the trial not punishment phase?
    FYI I only picked up the guys that stole some clothes from the mall, They called me asked if I could pick them up, I said “YES””
    When I got there AS SOON AS I GOT THERE
    They ran out with security running after them, and the Rest …well you can figure it out.
    Can someone PLEASE help me?

  • Mrs. Mills

    Wrong. The worst case scenario is shoplifting ($1.29 item) 36 years ago, having it show up on my record as Class B misdemeanor and never being able to find a decent job.