NO. 2031-99







Keller, P.J., filed a dissenting opinion in which WOMACK and KEASLER, JJ., joined.


Because state jail felonies are included within the plain language of Texas Penal Code 12.42(a)(2) and this is not an absurd result, I respectfully dissent.

The relevant portions of the statute provides:(2) If it is shown on the trial of a state jail felony punishable under Section 12.35(a) that the defendant has previously been finally convicted of two felonies, 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 for a second-degree felony. (1)

The question we confront is: do the words "felonies" and "felony" in subsection (a)(2) encompass state jail felonies? The Penal Code expressly includes state jail felonies within the classification of felonies:

(a) Felonies are classified according to the relative seriousness of the offense into five categories:

(1) capital felonies;

(2) felonies of the first degree;

(3) felonies of the second degree;

(4) felonies of the third degree; and

(5) state jail felonies. (2)

A state jail felony is a "felony" in the same way that a third degree felony is a "felony," despite the Court's attempt to argue the contrary. (3)

And 12.42(e) expressly excludes state jail felonies from the purview of subsections (b), (c), and (d) but not from subsection (a)(2):

A previous conviction for a state jail felony punished under Section 12.35(a) may not be used for enhancement purposes under Subsection (b), (c), or (d). (4)

As with subsection (a)(2), subsections (b), (c), and (d) use the general word "felony" to describe offenses used for enhancement. (5) That the Legislature chose to expressly exclude state jail felonies from subsections (b), (c), and (d) shows that the Legislature knew that the general word "felony" encompassed state jail felonies, and if it wanted to exclude state jail felonies from use under these subsections, an express provision to that effect would be required. Likewise, if the Legislature had wanted to exclude state jail felonies from (a)(2), then it could have listed such a exclusion in subsection (e). The significance of the Legislature's failure to list an exclusion for (a)(2) in subsection (e) is especially apparent when one considers that subsections (a)(2) and (e) were enacted in 1995 in the same section of the same bill. (6) There is no ambiguity in the statute; it is strikingly clear from the statutory language that the felonies available for enhancement under (a)(2) include state jail felonies. (7)

The Court contends that interpreting felonies to include state jail felonies produces an absurd result in that sequential state jail felonies would be punished far worse than non-sequential, non-state jail felonies. This conclusion is based upon the language of 12.42(a)(1), which provides:

If it is shown on the trial of a state jail felony punishable under Section 12.35(a) that the defendant has previously been finally convicted of two state jail felonies, on conviction the defendant shall be punished for a third degree felony. (8)

This language would produce the result complained of by the Court, but that result is not an absurd one that could not possibly have been intended. The Legislature could well have intended to punish the sequential commission far more heavily than the non-sequential commission of offenses. They have, in fact, done so in another context. Under 12.42(a)(3), a third degree felony can be enhanced by a single felony conviction to second degree punishment, but cannot be enhanced further by non-sequential convictions. (9) A defendant on trial for a third degree felony could have any number of prior non-sequential first degree felony convictions, and his third-degree offense could still only be enhanced to a second-degree felony. (10) On the other hand, under subsection (d), a defendant could have only two prior third-degree felony convictions, but his third-degree felony could be enhanced to a first-degree felony with a punishment range of 25 years to life if the two prior felony convictions were sequential. (11)

There is one strange effect of subsection (a)(1): a defendant is punished more severely if he has two prior non-sequential state jail felonies than if he had two prior non-sequential non-state jail felonies. That strange result, however, occurs regardless of how subsection (a)(2) is interpreted. Allowing state jail felonies to be used for enhancement under subsection (a)(2) does not produce absurd results.

I respectfully dissent.

KELLER, Presiding Judge.

Date filed: March 7, 2001


1. Texas Penal Code 12.42(a)(2)(emphasis added).

2. Texas Penal Code 12.04(a).

3. And holding that the word "felony" does not include state jail felonies is ironic given the Legislature's decree that, where a degree designation is not specified, an offense designated a "felony" is considered a state jail felony: "An offense designated a felony in this code without specification is a state jail felony."12.04(b).

4. 12.42(e).

5. See 12.42(b), (c), and (d).

6. Acts 1995, 74th Leg., SB 15, Ch. 318, 1.

7. In State v. Mancuso, 919 S.W.2d 86 (Tex. Crim. App. 1996), we held that state jail felonies were not available for enhancement under 12.42(d), despite that provision's inclusion of the general word "felony." Id. at 87-90. But that holding was based upon the interplay of then existing versions of 12.42(a) & (d) of the Penal Code and Article 42.12 15 of the Code of Criminal Procedure. Id. The relevant portion of Article 42.12 15, upon which Mancuso relied, has been deleted. Current subsections (a)(2) and (e) of 12.42 were not part of the version of the statute we analyzed in Mancuso. Given these important statutory differences, Mancuso is readily distinguishable from the present case.

8. 12.42(a)(1).

9. 12.42(a)(3).

10. Enhancements under 12.42 apply only to the offense tried, and therefore, the State cannot "stack" various enhancement provisions upon each other. State v. Webb, 12 S.W.3d 808, 811 (Tex. Crim. App. 2000).

11. See 12.42(d).