Chapter 12
Punishment Instructions
12.16 Instruction—Any Felony Other Than State Jail Felony—Enhanced (Two Prior Felonies)
You have found the defendant, [name], guilty of [offense]. The state has accused the defendant of having been convicted of a felony twice before.
The defendant has pleaded that this accusation is “not true.”
The range of punishments from which you must assess the defendant’s punishment depends on whether you find the state has proved the prior convictions accusation.
Relevant Statutes—Punishment If Accusation of Prior Convictions “Not True”
If the state does not prove the accusation of prior convictions is true, this offense is punishable by [insert range for charged offense, unenhanced].
Relevant Statutes—Punishment If Accusation of Prior Convictions Proved “True”
If the state proves the accusation of two prior convictions is true, this offense is punishable by any term of imprisonment for no less than twenty-five years and no more than ninety-nine years or for life.
Other Relevant Statutes
[Offense] is a felony offense.
Burden of Proof
The state must prove, beyond a reasonable doubt, the prior convictions accusation.
[Include the following if the offense is one under Texas Code of Criminal Procedure article 37.07, section 4(b).]
Parole
The length of time for which a defendant is imprisoned may be reduced by the award of parole.
Under the law applicable in this case, the defendant, if sentenced to a term of imprisonment, may earn early parole eligibility through the award of good conduct time. Prison authorities may award good conduct time to a prisoner who exhibits good behavior, diligence in carrying out prison work assignments, and attempts at rehabilitation. If a prisoner engages in misconduct, prison authorities may also take away all or part of any good conduct time earned by the prisoner.
Under the law applicable in this case, if the defendant is sentenced to a term of imprisonment, the defendant will not become eligible for parole until the actual time served plus any good conduct time earned equals one-fourth of the sentence imposed or fifteen years, whichever is less. Eligibility for parole does not guarantee that parole will be granted.
It cannot accurately be predicted how the parole law and good conduct time might be applied to this defendant if he is sentenced to a term of imprisonment, because the application of these laws will depend on decisions made by prison and parole authorities.
You may consider the existence of the parole law and good conduct time. However, you are not to consider the extent to which good conduct time may be awarded to or forfeited by this particular defendant. You are not to consider the manner in which the parole law may be applied to this particular defendant.
Application of Law to Facts
You must determine whether the state has proved, beyond a reasonable doubt, six elements of its accusation of prior convictions. The elements are that—
- the defendant was convicted on [date], in Cause No. [number] in the District Court of [county] County, Texas; and
- this conviction was for [offense], a felony; and
- this conviction became final before the commission of the offense for which the defendant was convicted as reflected in the next three elements; and
- the defendant was convicted on [date], in Cause No. [number] in the District Court of [county] County, Texas; and
- this conviction was for [offense], a felony; and
- this conviction became final before the commission of the offense for which the defendant was convicted in this trial.
You must all agree on elements 1, 2, 3, 4, 5, and 6 listed above.
If you all agree the state has failed to prove, beyond a reasonable doubt, one or more of elements 1, 2, 3, 4, 5, and 6 listed above, you must find the prior convictions accusation is “not true.” In this event, you are to determine and state in your verdict [insert range for charged offense, unenhanced].
If you all agree the state has proved, beyond a reasonable doubt, each of the six elements listed above, you must find the prior convictions accusation is “true.” In this event, you are to determine and state in your verdict the term in prison to be imposed on the defendant for no less than twenty-five years and no more than ninety-nine years or for life.
VERDICT—ACCUSATION OF PRIOR CONVICTIONS “NOT TRUE”
We, the jury, having found the defendant, [name], guilty of the offense of [offense], find that the accusation of two prior convictions has not been proved true. We assess the defendant’s punishment at: (select one)
[Insert options appropriate for charged offense, unenhanced. For example—
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VERDICT—ACCUSATION OF PRIOR CONVICTIONS “TRUE”
We, the jury, having found the defendant, [name], guilty of the offense of [offense], find that the accusation of two prior convictions has been proved true. We assess the defendant’s punishment at: (select one)
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Caution: This instruction does not address all possible circumstances under which parole or good conduct time may be restricted. See, e.g., Tex. Code Crim. Proc. art. 37.07, § 4(a). The parties must review the law carefully in light of the facts of the case at hand.
Comment
Punishment for a felony enhanced by two prior felony convictions, other than a state jail felony punishable under Tex. Penal Code § 12.35(a), is set out in Tex. Penal Code § 12.42(d). The plain language of that section does not provide for any fine to be assessed. See Dolph v. State, 440 S.W.3d 898, 908 (Tex. App.—Texarkana 2013, pet. ref’d); Blevins v. State, 74 S.W.3d 125, 132 (Tex. App.—Fort Worth 2002, pet. ref’d).
The parole and good conduct time instruction is taken from Tex. Code Crim. Proc. art. 37.07, § 4(b).