Category Archives: Criminal Sentencing

Felony Criminal Enhancements in Texas

Texas law allows for harsher punishments for repeat and habitual offenders. This means that when you have been previously convicted of certain crimes, the State can enhance, or increase your range of punishment on your current charge.

The range of punishment refers to the amount of time and/or fine that a person can receive as punishment, if convicted of a crime. The range starts with the minimum penalty and goes all the way up to the maximum penalty.

Enhancements affect the range of punishment by increasing the minimum range of punishment to a higher classification of crime. Commonly, enhancements can occur simply based on the fact that a person has been previously convicted of certain crimes. The short answer to the question is, yes, the law in Texas mandates that a repeat or habitual offender face a higher range of punishment than they ordinarily would, had there been no prior conviction(s).

To understand how enhancements work, it is important to understand what the ordinary ranges of punishment are for felony offenses. The key to this is first determining what degree of felony you are being charged with.

All felony offenses are broken down into different degrees. Chapter 12 of the Texas Penal Code identifies punishments for all classifications of offenses. For a complete list of punishments, please refer to Chapter 12 of the Texas Penal Code.

 

For example, we will be looking at a few pieces of different felony punishments, and the potential jail time and fines you could face if you are charged with a felony. The degrees of felonies, along with their general ranges of punishment, are in order from least to greatest, and are as follows:

State Jail Felony Punishment (Tex. Pen. Code Ann. § 12.35)

  • Confinement in a state jail for any term of not more than two years or less than 180 days.
  • In addition to confinement, a fine not to exceed $10,000 may be assessed.

Third Degree Felony Punishment (Tex. Pen. Code Ann. § 12.34)

  • Imprisonment in the Texas Department of Criminal Justice for any term of not more than 10 years or less than 2 years.
  • In addition to imprisonment, a fine not to exceed $10,000 may be assessed.

Second Degree Felony Punishment (Tex. Pen. Code Ann. § 12.33)

  • Imprisonment in the Texas Department of Criminal Justice for any term of not more than 20 years or less than 2 years.
  • In addition to imprisonment, a fine not to exceed $10,000 may be assessed.

First Degree Felony Punishment (Tex. Pen. Code Ann. § 12.32)

  • Imprisonment in the Texas Department of Criminal Justice for life or for any term of not more than 99 years or less than 5 years.
  • In addition to imprisonment, a fine not to exceed $10,000 may be assessed.

 

Now that you know what the ordinary punishments are supposed to be, the question becomes, how will I know if my charges have been enhanced?

First, you should look to the indictment, or formal charging document, to see if there is an enhancement paragraph within that document. The enhancement paragraph is often included near the bottom of an indictment.

The paragraph is located below the allegations and will include the reason, or past crime the State is using to enhance the charge. If the reason your charge is being enhanced is a prior conviction, the State must have proof of your past conviction. This is typically done by using a past judgment of conviction. The judgment should state what crime you were found guilty of, where you were convicted, and will most often contain your fingerprint.

Remember, just because the Government or prosecutor is alleging an enhancement (prior conviction) it does not mean that they can prove it or that you have to plead guilty to that enhanced charge. You need to work with your attorney to find out your best options.

 

Though it should be noted that there are exceptions to the general rules, let’s walk through some enhancement scenarios below.

Examples of Enhancements

State Jail Felony → Third Degree Felony

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 under Section 12.35(a), on conviction the defendant shall be punished for a felony of the third degree. (Tex. Pen. Code Ann. § 12.425(a)).

Alternative:

If you are charged with a state jail felony, and you have previously been convicted of two state jail felonies, if convicted, you can be punished as if the state jail felony were a third degree felony.

Third Degree Felony → Second Degree Felony

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. (Tex. Pen. Code Ann. § 12.42(a)).

Alternative:

If you are charged with a third degree felony, and you have previously been convicted of a felony (not including state jail felonies under section 12.35(a)), if convicted, you can be punished as if the third degree felony were a second degree felony.

 

Second Degree Felony → First Degree Felony

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, on conviction the defendant shall be punished for a felony of the first degree. (Tex. Pen. Code Ann. § 12.42(b)).

Alternative:

If you are charged with a second degree felony, and you have previously been convicted of a felony (not including state jail felonies under section 12.35(a)), if convicted, you can be punished as if the second degree felony were a first degree felony.

First Degree Felony

If it is shown on the trial of a felony of the first degree that the defendant has previously been finally convicted of a felony other than a state jail felony, on conviction the defendant shall be punished by imprisonment in the Texas Department of Criminal Justice for life, or for any term of not more than 99 years or less than 15 years. In addition to imprisonment, an individual may be punished by a fine not to exceed $10,000. (Tex. Pen. Code Ann. § 12.42(c)(1)).

Alternative

If you are charged with a first degree felony, and you have previously been convicted of a felony (not including state jail felonies under section 12.35(a)), if convicted, you will be punished by imprisonment in the Texas Department of Criminal Justice for life, or for any term from 15-99 years. In addition to imprisonment, a fine of $10,00 may be assessed.

Ultimately, when you make certain mistakes, those mistakes can come back to haunt you in the form of an enhancement. Do not leave your future to chance. At Goza & Carreras, we are aggressive trial attorneys and will fight for you! 817-369-3838

Stanford Swimmer Sexual Assault Case- Sentence Controversy

Last Thursday, June 2, 2016, Brock Allen Turner, an All American swimmer at prestigious Stanford University was sentenced to six months in jail followed by three years of probation in the sexual assault of an unnamed young women.

Here are the facts:
On January 18, 2015, shortly after midnight, two Stanford graduate students from Sweden witnessed a clothed man on top of a partially nude woman who appeared to be unconscious. The two witnesses took action. The man and woman were on the ground behind a dumpster near a fraternity house where they had both attended a party. Lars Peter Jonsson shouted at the man asking, “What the f—- are you doing? She’s unconscious.” Turner then tried to flee. Jonasson and his friend detained Turner until authorities arrived.

Turner was arrested and charged with three felonies. Assault with intent to commit rape of an intoxicated woman, sexually penetrating an intoxicated woman with a foreign object, and sexually penetrating an unconscious person with a foreign object. He entered a plea of not guilty alleging that the assault was an alcohol fueled consensual encounter. The case was made more difficult for prosecutors by the fact that the victim had no memory of the events due to of an alcohol induced blackout. In March, a jury did not buy Turner’s explanation and Turner was found guilty.

Turner appeared again in court to learn what punishment he would receive. Santa Clara County Superior Court Judge Aaron Persky could have sentenced Turner to up to 14 years in prison for the three convictions. A pre-sentence report from the Santa Clara County probation department recommended a much more lenient outcome, that Turner be given probation with a jail term of not more than a year.

At the sentencing hearing, the 23-year-old unnamed victim read a long, gut wrenching statement to the Judge asking that he send a stern message to Turner and others who might commit such crimes. It outlined what happened to her and the effects it has had on her life. “I am a human who has been irreversibly hurt.” she stated. She also said that Turner’s status as an All American swimmer at Stanford should not be considered as a justification for leniency stating “If I had been sexually assaulted by an un-athletic guy from a community college, what would his sentence be? How fast he swims does not lessen the impact of what happened to me.”

Also submitted to Judge Persky was a letter from the defendant’s father, Dan Turner. In it he talked about the effects and change to his son since the incident. “The verdicts have broken and shattered him and our family in so many ways” said the senior Mr. Turner. However, he also blamed the incident on alcohol consumption and promiscuity, suggesting that his son could educate others and the danger of binge drinking. Most inexplicably he called the encounter “20 minutes of action” and said that prison time was not appropriate for that kind of offense.

Ultimately, Judge Persky followed the recommendation of the probation officer and declined to grant the prosecutors’ request for a six-year prison term for Turner. Turner will be required to register as a sex offender for the rest of his life. Judge Persky reasoned “A prison sentence would have a severe impact on (Turner)…I think he will not be a danger to others.”

There has been widespread outrage over the sentence. The Santa Clara County District Attorney criticized the decision to levy only six months in the county jail, with only three months actually being served, but did not call for Persky’s removal, “While I strongly disagree with the sentence…I do not believe (Persky) should be removed from his judgeship.” He also praised the strength of the victim. “She has given voice to the thousands of sexual assault survivors.”

Others have not been as forgiving of Judge Persky. As of this week alone (June 7, 2016) more than 400,000 people had supported an online petition at www.change.org calling for Persky to be ousted. In a letter to be delivered to the California State, the petition accuses the judge of being lenient due to Mr. Turner’s status as “a white male star athlete at a prestigious university.”

Neither the Attorneys for Turner, nor the unnamed victim have commented since the sentencing.

JOHN EARL NOLLEY MURDER CONVICTION OVERTURNED

For almost 19 years, John Earl Nolley, of Bedford has been in the Texas prison system for the
murder of his friend Sharon McLane. On Tuesday, May 17, he was allowed to walk out of
Tarrant County’s 213th District Court a free man.

Nolley was convicted in 1998 of the stabbing murder of McLane which occurred on December
14, 1996. The jury sentenced him to life in prison. The key evidence leading to his conviction
was the testimony of John O’Brien. O’Brien was a jailhouse informant who had befriended
Nolley while the two worked in the Tarrant County Jail library. He testified that Nolley admitted
to stabbing McLane after an attempted robbery in her apartment. He also testified that Nolley
saw McLane’s blood on his shoes.

O’Brien was no stranger to trouble himself. He was a habitual felon who was in jail awaiting
trial on charges that carried punishment of 25 years to life in prison. After his testimony
assisted prosecutors secure a conviction, he was given a plea bargain allowing him to remain
free on deferred adjudication probation.

Beyond the testimony of O’Brien, the evidence against Nolley was sparse. O’Brien’s testimony
portrayed a robbery gone bad but no other evidence supported that scenario. Nothing was
taken from McLane’s apartment, including cash in McLane’s purse. A bloody palm print was
found at the crime scene but a forensic analysis couldn’t say who left it. Evidence of another
suspect was largely ignored by law enforcement.

In the initial stages of the investigation, Nolley denied being at McLanes on the day of the
murder. He later admitted to having been there to sell McLane marijuana. He later explained
that he initially lied to the police because he was on probation and selling marijuana would be a
violation of that probation.

Following the conviction, O’Brien, now serving time on a new charge, admitted to giving false
testimony against Nolley in an effort to get a better deal on his charges. Also, further forensic
analysis indicated that the bloody palm print did not come from Nolley or McLane.

In a collaborative effort from Nolley’s attorneys and the Tarrant County District Attorney’s
Conviction Integrity Unit, the case was reexamined. Nolley’s defense team included The
Innocence Project founder Barry Scheck and Fort Worth attorney Reagan Wynn. In a
culmination, Tuesday Judge Louis Sturns of the 213th District Court officially vacated the 1998
conviction. While the case is still under investigation and Nolley has not been officially
exonerated, neither the prosecutor nor defense counsel expect the case to be retried. Judge
Sturns granted Nolley release on his own recognizance pending a final resolution of the
charges.

Surrounded by family, friends, and members of his defense team, Nolley called himself
“blessed” to have received so much support during his ordeal.

Bernie Tiede receives life sentence…again.

For the second time, a Panola County, Texas jury has sentenced Bernie Tiede to a term of life in prison for the 1996 murder of 81 year old Marjorie Nugent. The case gained widespread notoriety as a result of the 2011 motion picture “Bernie” in which Tiede was portrayed by actor Jack Black.

In 1999, Tiede was tried and convicted for the murder of Nugent. The jury handed down a life sentence. Tiede confessed to shooting Nugent four times in the back with a 22 caliber rifle. Following the murder, Tiede hid Nugent’s body in a freezer that was sealed with duct tape and remained in the residence the two shared. The body was not found for nine months. Tiede was the long time companion of the wealthy Nugent who was more than 40 years his senior.

Influenced in part by the film, new evidence came to light that Tiede had been sexually abused by an uncle when he was a child. Additionally, Tiede’s attorney argued that Nugent was abusive and controlling towards Tiede and that the killing was the result of a dissociative episode brought on by Nugent’s abuse. In 2014, Tiede was granted a new trial to determine punishment based on this new evidence.

In a surprising development, Tiede was released on $10,000 bond while awaiting a new trial. As a condition of his bond, he was ordered to live in Austin, in the garage apartment of film executive Richard Linklater who co-wrote and directed the movie which had helped effectuate Tiede’s second chance.

For a time, it appeared that Tiede’s release would be permanent. The Panola County District Attorney, Buck Davidson, appeared poised to offer a plea bargain of 17 years in prison, which had already been served. In March of 2015, however, Davidson, under considerable pressure, recused himself from the case. Ironically, the recusal was based on Davidson becoming a potential fact witness in the case due to his work with Linklater on the movie. Judge Diane DeVasto appointed Assistant State Attorney General Adrienne McFarland to represent the State in the retrial. Mcfarland took a much different view of the case. No lenient plea offers would be extended.

Over the last three weeks, a new jury heard evidence in the re-sentencing. Jurors were allowed to hear evidence of the alleged sexual abuse of Tiede by his uncle. They also heard expert testimony that the type of abuse Tiede allegedly received from Nugent could be responsible for him snapping and committing the murder.

In the end, the jury was unmoved by the arguments made on Tiede’s behalf. After deliberating just over four hours, the jury reached the same conclusion as the original jury did in 1999. Bernie Tiede was sentenced Friday night to life in prison…again.