Comment

Mandatory Community Supervision. Generally, the trial judge has discretion in a state jail case whether to suspend imposition of a term of confinement assessed by the jury and place the defendant on community supervision. Community supervision is, however, mandatory upon conviction of certain state jail felonies in the Texas Controlled Substances Act for defendants without prior felony convictions:

• possession of less than one gram of a Penalty Group 1 controlled substance;
• possession of five or fewer abuse units of a Penalty Group 1-A controlled substance;
• possession of marijuana weighing more than four ounces but not more than one pound;
• certain prohibited possessions of prescription forms;
• possession of less than one gram of a Penalty Group 2 controlled substance without a valid prescription or order;
• possession of less than five pounds but more than four ounces of a Penalty Group 2-A controlled substance without a valid prescription order; and
• possession of more than four ounces but no more than one pound of a Penalty Group 2-A controlled substance without a valid prescription order.

Tex. Code Crim. Proc. art. 42A.551(a)–(c).

The Committee concluded that if community supervision is mandatory under the Act’s provisions, the jury should be informed of this.

Unavailability of Parole and Good Conduct Time. A defendant sentenced to confinement in a state jail facility is not entitled to parole or good conduct time. Best v. State, 118 S.W.3d 857, 866 (Tex. App.—Fort Worth 2003, no pet.) (citing Tex. Gov’t Code § 508.141(a) and former Tex. Code Crim. Proc. art. 42.12, § 15(h)(1), now art. 42A.559(b)). The Texas Code of Criminal Procedure is silent regarding whether jury instructions should include this information. Best held that defendants have no right to such a jury instruction and a trial court did not err in refusing it. Accord Rogers v. State, 432 S.W.3d 916, 917 (Tex. App.—Texarkana 2014, no pet.) (no error in refusing to submit jury instructions on parole); Gratten v. State, No. 03-06-00036-CR, 2007 WL 844869, at *1 (Tex. App.—Austin Mar. 20, 2007, no pet.) (not designated for publication) (“Under the circumstances, we . . . find no error in the trial court’s refusal to instruct the jury regarding the absence of parole and good conduct time in state jail cases.”) (citing Best).

In Gratten, Justice Patterson’s opinion noted that before the addition of Tex. Const. art. IV, § 11(a), the court of criminal appeals had held in Luquis v. State, 72 S.W.3d 355 (Tex. Crim. App. 2002), that the constitutional separation-of-powers provision was violated by an instruction that a jury was to consider the possibility that a defendant sentenced to prison might be released on parole. It added that the state jail felony situation, unlike the felony sentencing context, had not been addressed by legislation. See also Rose v. State, 752 S.W.2d 529 (Tex. Crim. App. 1987).

Rose reasoned that jurors permitted to consider good conduct time and parole might assess a longer sentence than they actually thought appropriate in anticipation that the executive’s application of good conduct time and parole law would result in the defendant’s serving what the jurors believed to be the appropriate sentence. This would interfere with the executive’s constitutional right to exercise the clemency power.

In 1989, article IV, section 11(a), of the Texas Constitution was amended to provide that—

Tex. Const. art. IV, § 11 (emphasis added to portion added in 1989). By adding section 4 to article 37.07 of the Code of Criminal Procedure, the legislature exercised its constitutional power under this provision. See Luquis, 72 S.W.3d at 361. Insofar as legislation has not affected particular types of cases, Rose remains good law and bars instructions permitting or requiring sentencing juries to consider the availability of executive clemency.

No legislation addresses jury instructions in state jail felony cases. Nevertheless, the rationale of Rose suggests that separation-of-powers law does not bar telling state jail felony juries that those sentenced to confinement in a state jail do not earn good conduct time and are not eligible for parole. Such an instruction simply informs jurors that the situation before them does not involve the issue of good conduct time and parole. There is no risk that such an instruction will result in juries tailoring punishment assessments in a manner that interferes with executive clemency.

The Committee concluded that an instruction of this sort was both permissible and demanded by the need to inform sentencing juries as fully as possible.

Gratten also held that a trial court did not err in refusing to instruct a jury that “[a] person sentenced to the state jail will serve each day of his sentence in the state jail.” Because a defendant sentenced to a term in a state jail may be granted “shock” community supervision, it noted, this would not be a correct statement of the applicable law. Gratten, 2007 WL 844869, at *1. Also, state jail felons may be eligible to receive a reduction in sentence for diligently participating in rehabilitation programs. Tex. Code Crim. Proc. art. 42A.559. The Committee avoided such inaccurate elaborations on the basic information that parole and good conduct time are not available.

Enhancement—Two Prior Convictions. In 2011, the Texas legislature replaced Tex. Penal Code § 12.42(a) with Tex. Penal Code § 12.425. Under Tex. Penal Code § 12.425, the state has three provisions available for enhancing state jail felonies with prior convictions.

Section 12.425(a), providing for enhancement by two prior state jail felonies, explicitly requires that the defendant must be punished for a third-degree felony. Under the old statute, Tex. Penal Code § 12.42, “the state must prove that there are two prior final convictions for state jail felonies, but does not need to prove that the prior convic-tions occurred sequentially, as it must under subsection (a)(2).” Campbell v. State, 49 S.W.3d 874, 876 (Tex. Crim. App. 2001). No case has addressed whether, under the new statute, the state must prove that the prior state jail convictions occurred sequentially.

Section 12.425(b), providing for enhancement by two prior felonies, requires that the defendant must be punished for a second-degree felony. The new statute kept the language about sequential felonies (i.e., the second enhancement offense must have occurred after the first enhancement conviction became final).

Section 12.425(c) provides that if the defendant was previously convicted of one prior felony and it is shown at trial that the defendant was adjudged guilty under section 12.35(c), then the defendant must be punished for a second-degree felony.

Parole and Good Conduct Time When Enhancement Sought. If the state alleges enhancements that if found true would require a sentence of imprisonment, the jury should be instructed on the parole and good conduct time provisions applicable to such a sentence. Facion v. State, No. 05-04-01536-CR, 2005 WL 1405794, at *1 (Tex. App.—Dallas June 2, 2005, no pet.) (not designated for publication) (when state jail felony conviction was enhanced by two prior felony convictions, “the jury should have been charged in accordance with section 4(c) of article 37.07 of the Texas Code of Criminal Procedure.”). See also Reece v. State, No. 06-13-00082-CR, 2014 WL 1851322, at *1 (Tex. App.—Texarkana May 6, 2014, no pet.) (not designated for publication) (reversing conviction for failing to provide art. 37.07, § 4(c) parole instruction for state jail enhanced by two prior sequential convictions to be punishable as a second-degree offense under Penal Code section 42.425(b)).