section 12.35(a) state jail felony punishable in Texas

2023In State v. Webb,1 we explained that there are two types of state-jail felonies: non-aggravated (those punishable under § 12.35(a)), and aggravated (those punishable under § 12.35(c)).2 We held 1 12 S.W.3d 808 (Tex. Crim.

2023Viewing the terms in the context of the complete statutory phrase, the Davis - 16 Court noted that “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).’” Id. (emphasis in original).

2015White, 959 S.W.2d at 377 ; Mancuso, 919 S.W.2d at 88 ; Webb, 980 S.W.2d at 927 . 38 C.

2015State v. Mancuso, 919 S.W.2d 86, 88 (Tex.Crim.App. 1996).

2015See State v. Garza, 298 S.W.3d 837, 844-45 (Tex.App.-Amarillo 2009, no pet.) (“The statute specifies the punishment for regular or non-aggravated state jail felonies in section 12.35(a) arid (b), and for aggravated state jail felonies in section 12.35(c).”); see also State v. Warner, 915 S.W.2d 873, 877 (Tex. App.-Houston [1st Dist.] 1995, pet. ref'd), abrogated on other grounds by Smith v. State, 960 S.W.2d 372 (Tex.App.Houston [1st Dist.] 1998, 'pet. ref'd) (“Subsections (a) and (e) clearly divide state jail felbnies into two distinct categories, and provide separate methods of punishment fo

2010Id. at 363 ; see also Smith, 960 S.W.2d at 374 (holding that “an aggravated state jail felony may be enhanced by two prior convictions in the proper sequence to habitual offender status” under penal code section 12.42(d)).

2023The Texas Court of Criminal Appeals found that, “[r]egardless of the [first] enhancement [paragraph], 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 d[id] not change that fact.”3 Webb, 12 S.W.3d at 811 ; see State v. White, 959 S.W.2d 375 , 377-78 (Tex. App.—Fort Worth 1998, pet. ref’d).

2015The legislature selected and used the language in the statutes in question in a careful and deliberate manner with the intent that they be construed to affect a reasonable result, we hold that the legislature intended to exclude state jail felonies punishable under section 12.35(a), and subject to enhancement under section 12.42 (a) (2), from the class of felony offenses that fall under the habitual offender provisions of section 12.42 (d).” State v. White, 959 S.W.2d 375 (Tex. App. Fort Worth 1998) (rev. on other grounds).

2016Notably, the habitual-offender statute provides only that “[a] previous conviction for a state jail felony offense punishable under Section 12.35(a) may not be used for enhancement purposes.” Id. § 12.42(d) (emphasis added); see also Campbell v. State, 49 S.W.3d 874, 877 (Tex. Crim.

2015See id. § 12.35(c); State v. Webb, 12 S.W.3d 808, 811-12 (Tex.Crim.App.2000) (en banc) (recognizing that subsection 12.35(c) is itself an enhancement of 12.35(a) when the offense is “aggravated” by the use of a deadly weapon and is therefore eligible for further enhancement under section 12.42(d)); see also Campbell v. State, 49 S.W.3d 874, 877 (Tex.Crim.App.2001) (en banc) (recognizing that subsection 12.42(d) permits enhancement for aggravated state jail felony convictions).

2010See generally Gowan v. State, 18 S.W.3d 305 (Tex.App.Beaumont 2000, pet. ref’d).

2010See generally Gowan v. State , 18 S.W.3d 305 (Tex.App.-Beaumont 2000, pet. ref'd).

2023Samaripas, 454 S.W.3d at 8, n. 5 .

2021See Bledsoe v. State, 480 S.W.3d 638, 641 (Tex. App.—Texarkana 2015, pet. ref’d) (an offense remains a state jail felony “punishable under Section 12.35(a)” even if it is actually punished under a habitual-offender enhancement statute (discussing Samaripas v. State, 454 S.W.3d 1 , 7–8 (Tex. Crim.

2010Id. at 363; see also Smith , 960 S.W.2d at 374 (holding that “an aggravated state jail felony may be enhanced by two prior convictions in the proper sequence to habitual offender status” under penal code section 12.42(d)).

2010Id. at 363 ; see also Smith, 960 S.W.2d at 374 (holding that “an aggravated state jail felony may be enhanced by two prior convictions in the proper sequence to habitual offender status” under penal code section 12.42(d)).

2026Such a conviction “may be used for enhancement of punishment pursuant to [section] 12.42,” Trotti v. State, 698 S.W.2d 245, 246 (Tex. App.—Austin 1985, pet. ref’d), which provides in relevant part: [I]f 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 th

2023Such a conviction “may be used for enhancement of punishment pursuant to [section] 12.42,” Trotti v. State, 698 S.W.2d 245, 246 (Tex. App.—Austin 1985, pet. ref’d), which provides in relevant part: Except as provided by Subsection (c)(2), 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.

2013In Jordan v. State, 256 S.W.3d 286, 290-91 (Tex. Crim.

2013In Jordan v. State, 256 S.W.3d 286, 290-91 (Tex.Crim.App.2008), which explained how section 12.42(d) operates, we said that the chronological sequence of events must be proved as: 1) the first conviction becomes final; 2) the offense leading to a later conviction is committed; 3) the later conviction becomes final; and 4) the offense for which the defendant presently stands accused is committed.

2009Code Ann. § 12.33 (Vernon 2003) (A second degree felony is punishable by 2 to 20 years imprisonment and a fine not to exceed $10,000); Boren v. State , 182 S.W.3d 422, 424 (Tex. App.—Fort Worth 2005, pet. ref’d).

2001Code Ann. § 12.33 (Vernon 2003) (A second degree felony is punishable by 2 to 20 years imprisonment and a fine not to exceed $10,000);  Boren v. State , 182 S.W.3d 422, 424 (Tex. App.—Fort Worth 2005, pet. ref’d).             Johnson further contends that paragraph one is improper because the State failed to prove the amount of the controlled substance. However, the State introduced the penitentiary packet into evidence at guilt-innocence. At punishment, the State moved to reintroduce all evidence admitted at guilt-innocence. The pen packet could be used to prove the prior

2006See Tabora v. State, 14 S.W.3d 332, 334 (Tex.App.-Houston [14th Dist.] 2000, no pet.) (stating preprinted boilerplate form containing provisions clearly meaning to apply to a wide variety of situations did not misinform defendant, as not all paragraphs apply to every defendant).

2006See Tabora v. State , 14 S.W.3d 332, 334 (Tex. App. C Houston [14th Dist.] 2000, no pet.) (stating preprinted boilerplate form containing provisions clearly meaning to apply to a wide variety of situations did not misinform defendant, as not all paragraphs apply to every defendant).

2004NOTES [1] "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 he shall be punished by imprisonment in the institutional division of the Texas Department of Criminal Justice for life, or for any term of not more than 99 years or less than 25 years." Tex. Penal Code § 12.42(d). [2] State v. Kersh, 2 S.W.3

2004State v. Kersh, 2 S.W.3d 636, 638 (Tex.App.-Houston [14th Dist.] 1999). . 953 S.W.2d 748, 750 (Tex.Cr.App.1997). .

2004NOTES [1] "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 he shall be punished by imprisonment in the institutional division of the Texas Department of Criminal Justice for life, or for any term of not more than 99 years or less than 25 years." Tex. Penal Code § 12.42(d). [2] State v. Kersh, 2 S.W.3

2004NOTES [1] "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 he shall be punished by imprisonment in the institutional division of the Texas Department of Criminal Justice for life, or for any term of not more than 99 years or less than 25 years." Tex. Penal Code § 12.42(d). [2] State v. Kersh, 2 S.W.3

2026However, that provision clarifies that “[a] previous conviction for a state jail felony punishable under Section 12.35(a) may not be used for enhancement purposes under this subsection.” Id.; see also id. § 12.35(a) (setting out punishment range for state jail felony); Wilkerson v. State, 391 S.W.3d 190, 199 (Tex. App.— Eastland 2012, pet. ref’d) (explaining that it is improper to enhance defendant’s punishment in felony case based on prior conviction for state jail felony).

2023P. 43.2(b); Bigley v. State, 865 S.W.2d 26, 27 (Tex. Crim. App. 1993); Asberry v. State, 813 S.W.2d 526, 529 (Tex. App.—Dallas 1991, pet. ref’d)). 11 The State agrees with Rogers’s request to reform the judgment to reflect the correct degree of felony offense. 12 The relevant enhancement statute states that, “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.” TEX.

2023P. 43.2(b); Bigley v. State, 865 S.W.2d 26, 27 (Tex. Crim. App. 1993); Asberry v. State, 813 S.W.2d 526, 529 (Tex. App.—Dallas 1991, pet. ref’d)). 11 The State agrees with Rogers’s request to reform the judgment to reflect the correct degree of felony offense. 12 The relevant enhancement statute states that, “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.” TEX.

2022“To preserve for appellate review a complaint that a sentence is grossly disproportionate, constituting cruel and unusual punishment, a defendant must present to the trial court a timely request, objection, or motion stating the specific grounds for the ruling desired.” Kim v. State, 283 S.W.3d 473, 475 (Tex. App.—Fort Worth 2009, pet. ref’d); see also Rhoades v. State, 934 S.W.2d 113, 120 (Tex. Crim.

2022See Oliva v. State, 548 S.W.3d 518, 526 (Tex. Crim. App. 2018) (“There is a practical difference between an enhancing provision saying that an offense ‘is’ a certain degree and one saying that an offense is ‘punished as’ a certain degree—the former creates an offense level that can serve as the base offense level for further enhancement . . ., while the latter does not.”). 4 Pratt does not challenge the sufficiency of the evidence linking him to these offenses. 10 Pursuant to enhancement under § 12.425(a), Pratt’s state jail felony conviction was punishable as a third-degree felony, subjecting

2022“To preserve for appellate review a complaint that a sentence is grossly disproportionate, constituting cruel and unusual punishment, a defendant must present to the trial court a timely request, objection, or motion stating the specific grounds for the ruling desired.” Kim v. State, 283 S.W.3d 473, 475 (Tex. App.—Fort Worth 2009, pet. ref’d); see also Rhoades v. State, 934 S.W.2d 113, 120 (Tex. Crim.

2021In issue three, Martinez argues he is entitled to a new punishment hearing because the trial court submitted a charge in which it sequenced his prior convictions in an order that does not require what the order proscribed in the repeat-felony- offender statute to require the jury to assess a sentence accompanied by a mandatory minimum of twenty-five years.28 The twenty-five-year minimum sentence requirement that applies to certain repeat felony offenders, which is set out in section 12.42(d) of the Penal Code, provides with exceptions that are not applicable here as follows: “[I]f it is shown

2021See generally Garcia v. State, 549 S.W.3d 335, 344 (Tex. App.—Eastland 2018, pet. ref’d) (explaining that while problems with the pleading of an enhancement allegation must be preserved, a complaint that the record affirmatively reflects the enhancement was improper does 3 “Shown on the Trial” In his second issue, appellant contends the trial court erred in considering an enhanced punishment range because the prior felony conviction was not “shown on the trial” as required by Penal Code section 12.42(c)(1), which states in full: If it is shown on the trial of a felony of the first degree that

2021See Bledsoe v. State, 480 S.W.3d 638, 641 (Tex. App.—Texarkana 2015, pet. ref’d) (an offense remains a state jail felony “punishable under Section 12.35(a)” even if it is actually punished under a habitual-offender enhancement statute (discussing Samaripas v. State, 454 S.W.3d 1 , 7–8 (Tex. Crim.

2016App. 2001) (section 12.42(d) permits enhancement by use of aggravated state jail felony convictions punished pursuant to section 12.35(c)); Salazar, 474 S.W.3d at 838 (important distinction between whether defendant previously punished for state jail felony offense under section 12.35(a) or 12.35(c) because habitual-offender statute “provides that if the prior conviction was pursuant to 12.35(a), it may not be used for enhancement purposes”).

2016App. 2001) (section 12.42(d) permits enhancement by use of aggravated state jail felony convictions punished pursuant to section 12.35(c)); Salazar, 474 S.W.3d at 838 (important distinction between whether defendant previously punished for state jail felony offense under section 12.35(a) or 12.35(c) because habitual-offender statute “provides that if the prior conviction was pursuant to 12.35(a), it may not be used for enhancement purposes”).