Affirmative Findings and Enhancement

AFFIRMATIVE FINDINGS AND ENHANCEMENT

By

Dana D. Jacobson, Esq.

Presiding Judge, Municipal Court of the City of Fair Oaks Ranch; City Prosecutor, City of Boerne; Assistant City Attorney, City of Grey Forest

1.  Enhancement: What is it? Enhancement is a creature of statute, but is not defined by statute. However, generally when we speak of enhancement, we refer to increasing the punishment for a particular offense because of circumstances existing at the time of the commission of the offense, whether the circumstances are 1) the manner in which the offense was committed, or 2) the defendant’s criminal history at the time the offense was committed. Note that these are not mutually exclusive: prior convictions can be used to enhance punishment in the same proceeding where the offense was committed in a manner or under circumstances which themselves provide for enhanced punishment. Courts have upheld enhancement provisions against all sorts of challenge, including claims of double jeopardy, ex post facto laws, cruel and unusual punishment, due process violation, unequal protection, and infringement of privileges and immunities. Spencer v. Texas, 385 U.S. 554; 87 S. Ct. 648; 17 L. Ed. 2d 606. NOTE: the scope of this paper is intended to address only offenses and situations that would generally require a determination by a municipal court.

a.  Notice. Before trial, the state must notify a defendant that it intends to seek an enhanced penalty…The allegations in the enhancement paragraphs do not have to be as specific as the allegations of the offense for which the defendant is on trial. 1-2 Texas Sentencing § 2.1 Copyright 2007, Matthew Bender & Company, Inc. “In the case of these enhanced offenses, the defendant is entitled to both notice that the enhancement is being sought and a factual determination of the prior conviction.” TMCEC Municipal Judge’s Book, citing Palmer v. State, 229 S.W.2d 174 (Tex. Crim. App. 1950) (sale o’ whisky in a dry county).

b.  Standard of Proof: The state must prove each and every element of an offense beyond a reasonable doubt; however, the United States Supreme Court has held that prior convictions are a sentencing factor, not a crime in themselves, and need only be proved by a preponderance of the evidence. Almendarez-Torres v. United States, 523 U.S. 224.

c.  To what offenses does enhancement apply? Enhancement is intended to both deter and punish. It applies equally to a crime that is a repetition of prior violations by the defendant and to a crime the manner of commission of which is, or the circumstance under which it is committed are, more flagrant or heinous that a “normal” offense of the same type.

2.  Enhanced punishment for subsequent offenses under the Penal Code. The more usual circumstance for enhancement of punishment is that in which the defendant has been convicted previously of the same or a similar offense – i.e., recidivism.

a.  The gift that keeps on giving: Penal Code §12.46 states that a prior conviction can be used, inter alia, over and over again for enhancement of punishment for a subsequent offense.

b.  Disorderly Conduct & Public Intoxication (Art 42.12, §15A and PC §12.43(c) and (d)(Habitual Misdemeanor)) – if the defendant has been previously convicted 3 or more times for any combination of disorderly conduct and public intoxication where the offenses were committed within the previous 24 months, the offense may be punished as a Class B misdemeanor.

3.  Enhanced punishments for particular offenses

a.  Alcohol-related offenses and minors – Under Alcoholic Beverage Code §106.071, a 17-year-old (“a minor who is not a child”) with two prior convictions for listed offenses can be fined $250-$2000 and be jailed for up to 180 days, an increase from the $500 fine and no confinement that the underlying offense carries. The alcohol-related community service and alcohol awareness class are available for a subsequent offense as well, and the community service hours increase with the number of convictions. If the offender is younger than 17 with two prior convictions, there is no enhanced punishment; however, the Municipal Court still has to waive jurisdiction to the juvenile court (Family Code §51.08).

b.  Assault against an elderly or disabled victim (Penal Code §22.01(c)(1)) – If the victim was chosen because he or she was elderly or disabled, the punishment for simple assault is enhanced from Class C misdemeanor to Class A.

c.  Assault against a sports participant by a non-participant (Penal Code §22.01(c)(2)) – the penalty for a spectator or other nonparticipant assaulting a referee, player or staff member is enhanced from Class C misdemeanor to Class B.

4.  Enhanced punishment for subsequent offense outside the Penal Code (Penal Code §12.43(d)) – many offenses that are not crimes per se are punished under separate statutes. If a separate punishment is set forth in a statute, the default provisions of Penal Code §12.43(d) do not apply.

a.  Insurance (Transportation Code §601.051 and §601.191) – on a second or subsequent conviction of operating a vehicle in violation of the financial responsibility requirement, the defendant will be assessed a fine of between $350 and $1000, up from a range of $175 to $350 for a first conviction.

b.  Disabled parking (Transportation Code §681.011 and §684.011) – the most graduated statute:

i.  a first offense gets the violator $200-$500;

ii.  a second offense boosts the fine range to $300-$600;

iii.  a third offense adds to the $300-$600 fine range a requirement for 10 to 20 hours of community service;

iv.  a fourth offense bumps the fine range to $500-$100 and adds 20 to 50 hours of community service;

v.  a fifth offense gets the offender a $1000 fine and 50 hours of community service. Interestingly, there’s no “or more” language on this one, so presumably once you’ve gotten your fifth conviction, either you’re home free or you start over…?

c.  Overweight truck violations (Transportation Code §621.506 and 507)

i.  first-time penalties vary depending on the axle weight, tandem axle weight or gross weight of the vehicle. For a second conviction within a year for the same offense (axle and axle, tandem and tandem, etc.), the fine doubles.

ii.  Extra credit: This statute requires that the municipal judge report every violation promptly to the DPS.

d.  Motor Fuel Theft less than $50 (Transportation Code §521.349) – automatic driver’s license suspension or denial with a second or subsequent offense. Requires affirmative findings (discussed below). Query: whether we’re going to see more Class B misdemeanors with the recent increases in the price of a gallon of gas…

e.  Failure to Attend School (Family Code §54.021(b)) – a subsequent offense actually constitutes violation of a court order (Code of Criminal Procedure Art 45.050; Education Code §25.094(d)), and the court can refer the offender to juvenile court or retain jurisdiction and:

i.  Hold the child in contempt and impose a fine of not more than $500, and/or

ii.  Order DPS to suspend the driver’s license or permit, as appropriate, or deny issuance of a driver’s license or permit until the child discharges his/her obligation to the court.

5.  Municipal Court procedure for dealing with an offense that permits enhancement.

a.  When considered by a jury, enhancement findings are either “true” or “not true”.

6.  Affirmative findings

a.  What are they? Affirmative findings are those specific findings of the finder of fact (whether judge or jury) that support an enhanced punishment or other action by the court or by the state. Without the requisite affirmative finding, the action is not available to the court or the state. Affirmative findings are a creature of statute, instituted by the Legislature to support enhanced punishment or trigger additional administrative steps or consequences. Affirmative finding law emerged as a child of Article 42.12 of the Code of Criminal Procedure. It is solely the result of the insertion of the word "affirmative" in that statute, and has no link to any concept of notice. In fact, nothing in Article 42.12 or in the Polk line of cases prohibits an entry of an affirmative finding without prior notice to the accused. An affirmative finding is just that: a finding that is affirmatively made. This can be accomplished by: (1) A jury's answer to a special issue, or (2) by a finding of "guilty as charged in the indictment". Ex parte Beck, 769 S.W.2d 525 (Tex. Crim. App. 1989)

b.  To what offenses do affirmative findings apply?

i.  Motor Fuel Theft (Code of Criminal Procedure Art. 42.019 and Penal Code §31.03(e)(1), and Transportation Code §521.349). To support future enhancement, the judgment must contain affirmative findings that the person: 1) pumped the gas and 2) drove off without paying. In order to use the prior conviction for enhancement, the subsequent judgment requires an affirmative finding of a previous conviction for the same offense.

ii.  Family Violence (Code of Criminal Procedure Art. 42.01, §5 and Art 42.013)

1.  By enacting Article 42.013, the legislature sought to simplify the enhancement of punishment for family violence repeat offenders. State v. Eakins, 71 S.W.3d 443, 444 (Tex. App.--Austin 2002, no pet.). Before Article 42.013's enactment, extrinsic evidence was the only method of proving that a previous conviction for assault was against a family member. Id. An affirmative Article 42.013 finding of family violence eliminates the need to use extrinsic evidence to enhance a subsequent conviction for family violence. Goodwin v. State, 91 S.W.3d 912, 919 (Tex. App.--Fort Worth 2002, no pet.). This simplifies the enhancement process for possible future assaults against a family member and promotes judicial economy. Id. Rodriguez v. State, 2006 Tex. App. (unpublished opinion)

2.  What about simple assault when committed against a spouse (Penal Code §22.01(a)(2) and (3))? It’s a Class C misdemeanor. Does the judge have a duty to make an affirmative finding of family violence and enter it in the judgment to support a future enhancement under §22.01(b)(2), making a simple assault under §22.01(a)(1) a third degree felony if committed against a family member with a finding of a previous conviction for family violence? Code of Criminal Procedure Art. 42.013 says yes.

iii.  Bias or Prejudice (CCP Art. 42.01, §6 and Art. 42.014) (Pen.C. §12.47). Applies to simple assault under Penal Code §22.01(a) and requires one step enhancement of punishment if an affirmative finding is made “that the defendant intentionally selected the person against whom the offense was committed or intentionally selected property damaged or affected as a result of the offense because of the defendant's bias or prejudice against a group identified by race, color, disability, religion, national origin or ancestry, age, gender, or sexual preference.” CCP Art. 42.014(a).

7.  Elements of a judgment as they relate to affirmative findings and enhanced punishment. The judge must not only make an affirmative finding of an element that justifies enhancement of a sentence, the judge must also enter the affirmative finding as a part of the judgment.

a.  42.01 Judgment statute – Sections 5-8 specifically state that in addition to the previously listed elements of a valid judgment, the judgment “should reflect affirmative findings entered pursuant to Article [42.013/014/015/017] of this code”.

b.  45.041 Judgment provision

8.  Ethical issues involved with using knowledge of prior proceedings to enhance punishment. Many attorneys who serve as municipal court judges also serve in different jurisdictions as municipal prosecutors. The issue of what to do when the judge knows of prior convictions, Deferred Disposition, etc. of a defendant before him, but the prosecutor doesn’t make reference to it, brings up a number of considerations.

a.  Texas Rule of Evidence 201 – Judicial Notice. Governs judicial notice of adjudicative facts. Does this include prior convictions in another court?

i.  Wilson v. State, 677 S.W.2d 518 (Tex.Crim.App. 1984): Of course, a trial court may take judicial notice of its own orders, records, and judgments rendered in cases involving the same subject matter and between practically the same parties. 1 Ray, Texas Practice, Sec. 186. However, one trial court generally lacks the power to take judicial notice of the records or documents that might be on file in another trial court…[no citing reference].
“…If the judge has personal knowledge of a fact not judicially known, the proper way to make use of it is for him to take the stand as a witness and testify to what he knows." McCormick and Ray, Texas Law of Evidence, 2d Ed., Vol. 1, at 172-173.

ii.  Culverhouse v. State, 755 S.W.2d 856 (Tex.Crim.App. 1988) (Dissent): In 1 Texas Practice 195-196, Ray, Law of Evidence (Third Edition), Section 152, the following is pointed out: "It is well settled that the scope of the exercise of the function of judicial notice is not coextensive with the personal knowledge of the individual judge. Personal knowledge is not judicial knowledge. The judge may personally know a fact of which he cannot take judicial notice."

iii.  …so what’s the answer? Is a judgment in another court properly the topic of judicial notice? Or does the prosecutor have to 1)know about it, and 2)get it into evidence?

b.  Prior Convictions – Judge was Prosecutor. Brown v. State, 108 S.W.3d 905 - The trial judge in this case acted as prosecutor in one of the prior convictions used for enhancement of the penalty range in the instant case. 6th Circuit Court of Appeals said acting as a prosecutor in a case introduced for enhancement but not the same case as before the trial judge, “does not establish a disqualification under TEX. CONST. art. V, § 11 or TEX. CODE CRIM. PROC. ANN. art. 30.01 that would render a prior conviction useless for enhancement purposes under McDonald. There is no disqualification under these circumstances.”