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:

1. possession of less than one gram of a Penalty Group 1 controlled substance;
2. possession of five or fewer abuse units of a Penalty Group 1-A controlled substance;
3. possession of marijuana weighing more than four ounces but not more than one pound;
4. certain prohibited possessions of prescription forms;
5. possession of less than one gram of a Penalty Group 2 controlled substance without a valid prescription or order;
6. 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
7. 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)). But defendants may be awarded diligent participation credit. Tex. Code Crim. Proc. art. 42A.559(b)(f)(g). 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. AccordRogers 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 too lenient a punishment. 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, with the possible exception of aggravated state-jail felonies that are aggravated because of a deadly weapon finding, Tex. Penal Code § 12.35(c)(1), which may warrant an instruction under Tex. Code Crim. Proc. art. 37.07, § 4(a). 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, or at least the risk is less than in the opposite situation addressed in Rose.

The Committee concluded that an instruction of this sort was both permissible and responsive to the desire to inform sentencing juries as fully as possible. It is not clear that such an instruction would be required. See generallySimmons v. South Carolina, 512 U.S. 154, 169 (1994) (plurality) (requiring death penalty jurors to be told that, if given a life sentence, the defendant would be ineligible for parole); Sorto v. State, 173 S.W.3d 469, 492 (Tex. Crim. App. 2005) (no requirement to inform death penalty jurors of the effects of their failure to agree on the special issues).

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.

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.) (mem. op., 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 alsoReece v. State, No. 06-13-00082-CR, 2014 WL 1851322, at *1 (Tex. App.—Texarkana May 6, 2014, no pet.) (mem. op., not designated for publication) (requiring punishment retrial for failing to provide article 37.07, section 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)).

“Ordinary” and “Aggravated” State Jail Felonies. The base-level punishment range for a state jail felony is confinement for 180 days to two years. Tex. Penal Code § 12.35(a). This is referred to as an “ordinary state jail felony” or “ordinary SJF.” State v. Kahookele, 640 S.W.3d 221, 223 (Tex. Crim. App. 2021).

If, while committing (or during immediate flight following) the state jail felony, the defendant used or exhibited a deadly weapon or knew a deadly weapon would be used or exhibited, or if the defendant had a prior conviction for certain felony offenses, including article 42A.054(a) offenses, the punishment range increases to a third-degree felony. Tex. Penal Code § 12.35(c). This is referred to as an “aggravated state jail felony” or “aggravated SJF.” Kahookele, 640 S.W.3d at 223.

For enhancement purposes, the categorization of offenses as either “punishable under section 12.35(a)” (i.e., “ordinary SJFs”) or “for which punishment may be enhanced under section 12.35(c)” (i.e., “aggravated SJFs”) becomes important.

Enhancement of Ordinary State Jail Felonies. 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 two ways for enhancing ordinary state jail felonies with prior convictions: section 12.425(a) and (b).

Section 12.425(a), providing for enhancement by two prior ordinary state jail felonies, 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. However, given the inclusion of a sequential requirement in section 12.425(b), its absence from subsection (a) should signal a legislative intent that it is not required.

Section 12.425(b), providing for enhancement by two prior felonies other than ordinary state jail 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).

By its express statutory language, section 12.42(d) cannot be used to enhance an ordinary state jail felony to habitual offender status. SeeTex. Penal Code § 12.42(d) (includes the language “if it is shown on the trial of a felony offense other than a state jail felony punishable under Section 12.35(a)”).

Not only that, an ordinary state jail felony enhanced to a second-degree by two prior sequential felonies (formerly section 12.42(a)(2), now section 12.425(b)) cannot be further enhanced by two additional prior sequential felonies under section 12.42(d) to habitual offender status. State v. Webb, 12 S.W.3d 808 (Tex. Crim. App. 2000).

For commentary on the use of ordinary state jail felonies for enhancement (instead of enhancement of such felonies), see CPJC12.3 under the heading “Use of Ordinary State Jail Felonies for Habitual Felony Enhancement.”

Enhancement of Aggravated State Jail Felonies. Aggravated state jail felonies can be enhanced either under section 12.425(c) or section 12.42(d).

For state jail felonies “for which punishment may be enhanced under Section 12.35(c)…” (i.e., aggravated state jail felony offenses), the defendant is punished for a second-degree felony if the defendant has a prior conviction for a felony other than an ordinary state jail felony. Tex. Penal Code § 12.425(c). This will sometimes require the defendant to have two prior non-state jail felony convictions in total since one of the ways to get to an aggravated state jail felony is through a conviction for certain named offenses. A single prior conviction can’t be used to both make the state jail felony “aggravated” under section 12.35 and enhance the offense under section 12.425(c). Otherwise every such aggravated state jail felony would be a second-degree felony, not a third-degree felony as section 12.35(c)(2) provides. The court of criminal appeals’ statement in Kahookele should not be read otherwise: “Section 12.425(c) allows enhancement of an aggravated SJF to a second-degree punishment range if the defendant has a single previous conviction for a felony other than an ordinary SJF.” Kahookele, 640 S.W.3d at 226 (emphasis added). The court was distinguishing section 12.425(c) enhancements (which require one prior conviction on top of an aggravated SJF) from section 12.42(d) enhancements (which require two prior convictions on top of an aggravated SJF).

Kahookele did clarify that since section 12.42(d) excludes only “state jail felon[ies] punishable under Section 12.35(a)” (i.e., ordinary SJFs) from its ambit, aggravated state jail felonies could qualify for habitual felony enhancement. Kahookele, 640 S.W.3d at 246. Consequently if the defendant has two prior sequential felony convictions for offenses other than ordinary state jail felonies, section 12.42(d) can be used to enhance an aggravated state jail felony to habitual-offender status, thereby making the punishment range twenty-five to ninety-nine years or life. Again, for state jail felonies made aggravated by a prior conviction, section 12.42(d) enhancement will require three total prior convictions.

The possibilities for punishment for state jail felonies can be summarized as follows:

	Enhancement Allegations	Punishment Range	CPJC
Ordinary SJF, Unenhanced	None	State jail felony Tex. Penal Code § 12.35(a), (b)	CPJC12.18
Ordinary SJF, Enhanced with 2 ordinary SJFs	Two prior ordinary SJFs	Third-degree felony Tex. Penal Code § 12.425(a)	CPJC12.19A
Ordinary SJF, Enhanced with 2 sequential felonies	Two prior sequential felonies other than ordinary SJFs	Second-degree felony Tex. Penal Code § 12.425(b)	CPJC12.19B
Aggravated SJF (by deadly weapon)	Deadly weapon used in offense on trial	Third-degree felony Tex. Penal Code § 12.35(c)(1)	Submit deadly weapon issue at guilt and use CPJC12.13
Aggravated SJF (by a certain prior felony)	One of certain prior felonies (continuous trafficking, continuous sexual abuse of young child or disabled individual, article 42A.054(a) offense, or judgment for prior has deadly weapon finding)	Third-degree felony Tex. Penal Code § 12.35(c)(2)	CPJC12.20
Aggravated SJF, Enhanced	Deadly weapon OR certain prior felony; and One prior felony other than an ordinary SJF	Second-degree felony Tex. Penal Code § 12.425(c)	CPJC12.21A
Aggravated SJF, Habitual Offender	Deadly weapon OR certain prior felony; and Two prior sequential felonies	Habitual offender (25-99 years or life) Tex. Penal Code § 12.42(d)	CPJC12.21B

As in other contexts, the Committee recommends submitting the deadly weapon special issue (as it relates to the state jail felony on trial) at the guilt phase. One advantage is that it avoids potential error under Apprendi v. New Jersey, 530 U.S. 466 (2000) (and the challenge of obtaining a waiver of an Apprendi claim) if the defendant ends up going to the trial court for punishment. But even if the jury determines punishment, submitting the issue at guilt will simplify the punishment charge by determining the applicable punishment range ahead of time.