Military Sex Crime Conviction May Be Used for Enhancement in Texas

Rushing v. State (Tex.Crim.App. - Oct 5, 2011) - Here's a case that interests me on a couple of levels.  When I was a prosecutor in the Marine Corps, one of the constant questions I received from defense counsel when negotiating a plea on a sex crime case was how, and to what extent, the conviction will affect the service member in his/her home state.  I rarely knew the answer because many of the accused were from different states.  Well, the Texas Court of Criminal Appeals has confirmed that a military conviction for a sex crime, does have collateral consequences in Texas - one of them being that the conviction is able to be used for enhancement purposes in a later prosecution for a separate offense.

In Rushing, the CCA held that a prior sex-offense conviction under the Uniform Code of Military Justice (UCMJ) qualifies as a "conviction under the laws of another state" for enhancement purposes.  Texas Government Code §311.005(7) defines "state" to include any area subject to the legislative authority of the United States.  A UCMJ conviction is deemed to have taken place on United States soil and the defendant's subsequent conviction is properly enhanced under Penal Code §12.42(c)(2)(b)(v) for that conviction.

Beware of the Last-Minute Enhancement!

If your client has a prior conviction, it is more likely than not that the State will attempt to “enhance” the current case if it can.  Typically the State will plead the enhancement provision in the indictment, so that your client is on notice of the possibility that his sentence (if he is ultimately convicted) may be enhanced to a higher level crime.  But what if the jury convicts your client of the lesser-included offense, such that the particular enhancement doesn’t logically apply?  Can the State still seek to enhance the LIO conviction?

The Texas Court of Criminal Appeals recent decision in Pelache v. State indicates that, YES, the State can enhance the LIO conviction with other qualifying convictions (even if it didn’t notify your client in the indictment!).  I’m not going to get into the specifics of enhancements in this post.  You can read the case if you want a high level of detail.  I’m here with the highlights.  

In Pelache, the defendant was charged with the 2^nd degree felony offense of robbery.  In the indictment, the State included an enhancement count alleging that he had been previously convicted of an aggravated robbery.  Thus, if appellant was convicted on the current robbery charge, his sentence could be increased to the range of a 1^st degree felony.  Knowing this, the defendant refused a plea deal and proceeded to trial where he was convicted of the LIO of theft from a person (a state-jail felony).  Because he was convicted of the LIO, the enhancement count that the State included in the indictment did not apply.

However, after the trial concluded and less than a week before the sentencing hearing, the State filed a notice with the Court, indicating that it was seeking to enhance the state-jail felony conviction with two other felony convictions.  The defendant objected to the last-minute enhancement notice, arguing that it violated his right to due process.  The State pointed out that the notice of the enhancement need only be given “prior to sentencing” and the trial court allowed the sentenced to be enhanced to a 2^nd degree felony.  The trial judge then sentenced the defendant to 20 years, the upper end of the enhanced range (2 to 20).

On appeal, the 13^th District Court of Appeals (Corpus Christie) held that the defendant’s federal due process rights were violated by the late notice of the State’s intent to enhance the conviction.  That would be a short-lived victory for the defendant.  Last week the CCA, on State’s petition, reversed the decision of the 13^th Court, holding:

[W]hen a defendant has no defense to the enhancement allegation and has not suggested the need for a continuance in order to prepare one, notice given at the beginning of the punishment phase satisfies the federal constitution…We also note that the applicable statutes did inform appellant, before he rejected the State’s plea-bargain offer and before jeopardy attached to the robbery offense, that he was subject to sentence enhancement with any other prior convictions under section 12.35(c)(2)(A) and under section 12.42(a)(3) in the event that he was convicted of the lesser-included, state-jail felony offense of theft from a person.

Judge Meyers dissented without opinion.

Takeaway:  The State can seek enhancements at any time prior to sentencing.  Enhancements may apply to the charges offense or the LIOs.  Advise your clients accordingly.

Please Drive Safely While Evading Arrest

Section 12.35 of the Texas Penal Code allows a defendant to be punished for a 3rd degree felony if, while in the commission of a state jail felony, he/she uses or exhibits a deadly weapon.

But what if the deadly weapon is part of the underlying offense?  For instance, what if a person evades arrest by fleeing in a vehicle?  Evading arrest is a crime under Section 38.04 of the Texas Penal Code and when someone uses a vehicle to evade arrest, it is a state jail felony.  Can that crime then be punishable as a 3rd degree felony under the Section 12.35 enhancement provision simply because the actor uses a deadly weapon (a vehicle)?

While it may seem illogical to permit a deadly weapon enhancement where the use of the instrumentality characterized as a deadly weapon is an essential element of the underlying offense, Texas allows it.  I know...I couldn't believe it when I read it either.  Did the legislature truly intend that the offense of evading arrest by using a vehicle be enhanced further for proof that the actor used a vehicle?  I would hope not.  Although, the Texas Court of Criminal Appeals has not yet weighed-in on this issue, the 2nd District Court of Appeals (Fort Worth) and, most recently, the 6th District Court of Appeals (Texarkana), have explained:

Section 12.35 of the Texas Penal Code makes no exception to the enhancement requirement where, as here, the instrumentality alleged to be a deadly weapon is also an essential element of the offense to be enhanced.

State v. Brown, ___ S.W.3d ___ (Tex. App.--Texarkana 2010).

This holding, to me, was a bit discouraging.  It essentially means that any offense wherein use of a motor vehicle is a necessary element (e.g. DWI) may be enhanced because the actor used a "vehicle."  I could understand enhancing the punishment if the actor used a different weapon, such as a gun or a knife to evade arrest, but a vehicle? C'mon!  Thankfully, Justice Carter's concurring opinion clarified the issue and tempered the majority opinion with some logical reasoning.  He stated:

The misdemeanor offense of evading arrest or detention is committed if the party flees; it becomes a state jail felony when the party uses a motor vehicle. TEX. PENAL CODE ANN. § 38.04(a), (b)(1).  Theoretically a motor vehicle may be used in many ways—even if it is driven in a safe, uneventful manner, the offense would be a state jail felony.  The allegation that the vehicle was used or exhibited as a deadly weapon requires much more proof.  Since a motor vehicle is not manifestly designed to inflict injury, there must be proof that in the manner of its use or intended use, it was capable of causing death or serious bodily injury.  TEX. PENAL CODE ANN. § 1.07(17) (Vernon Supp. 2009).  As we have recently held, proof that a vehicle is capable of causing serious bodily injury requires a showing of actual danger such as another person being present at the same time and place when the defendant drove in a reckless manner. Drichas v. State, 219 S.W.3d 471, 476 (Tex. App.—Texarkana 2007, pet. ref‘d).

At least we know that enhancement isn't automatic - although I still don't think the hurdle is too high for the State to jump in cases such as these.  Is speeding enough?  What about swerving?  Hopefully the CCA will take this up soon and provide some clarity.  Until then, remember,

If you are going to evade arrest in a vehicle, drive carefully, within the speed limit, and obey all traffic regulations.