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Comments on Criminal Issues

August 26, 2011

PUNISHMENT: TEXAS STYLE

Life Sentences for DWI, Shoplifting for Habitual Offenders

By: Houston Criminal Lawyer John Floyd and Paralegal Billy Sinclair

Two years ago the Houston Chronicle carried report about a Montgomery County jury imposing a life sentence on a criminal defendant who shoplifted five compact discs from a Wal-Mart in Conroe. The defendant, Brian K. Balentine, was understandably stunned by the sentence. We just posted a piece about how a defendant’s criminal history, and even uncharged prior bad conduct, can come back to haunt him during the punishment phase of a trial.

That’s what happened to Balentine. The jury learned about his extensive criminal background and decided he would always pose a threat to society, so they sent him away for life. The evidence the jury considered was a 1984 murder in Freestone County of a man trying to protect his wife from Balentine and his brother, Terry, who wanted to rape the wife during a robbery attempt. Although the brothers were given three life sentences for this crime, Brian Balentine was released on parole in 2006. Besides the murder, the Montgomery County jury heard evidence about prior thefts as well as the fact that he had been linked to at least three additional thefts while on parole.

“They (the jurors) agreed with us that he needed to go away for the rest of his life,” Montgomery County District Attorney Brett Peabody told the Chronicle.

A criminal past never truly goes away. Last August (2010) ABC News carried a report about 54-year-old Randy Stovall who was involved in a drunk driving accident in Round Rock, Texas. A judge sentenced Stovall to life imprisonment for the non-fatal accident because he was a “habitual drunken driver” with eight prior DWI convictions. John Bradley, the former district attorney of Williamson County and the former controversial chairman of the Texas Forensic Science Commission, who was recently booted from the commission by the state legislature, was quoted by ABC News as saying about Stovall: “This is someone who very deliberately has refused to make changes and continued to get drunk and get in a car and before he kills someone we decided to put him away … He basically walked through the penal system for the past twenty years without any regard for safety or society. In every single one of his cases he had an opportunity to change.”

These two cases illustrate, through the comments of DAs Bradley and Patterson, that district attorneys in Texas will seek, and often secure, life sentences based more on a defendant’s prior criminal history, both charged and uncharged, than the current offense for which he was convicted. This is a reality that defense attorneys must explain seriously with repeat and habitual criminal offenders before risking it all at trial.

Punishment in Texas is severe. Make no mistake about that. Following the 2009 legislative session, Texas Attorney General Greg Abbott updated “Penal Code Offenses by Punishment Range” which list the way punishment is imposed in the Lone Star state. Below is a list of the most significant punishments mandated by the Texas Penal Code and the Texas Code of Criminal Procedure:

CAPITAL FELONY [Tex. Penal Code § 12.31]: If the individual is found guilty and the state seeks the death penalty:

Imprisonment in the institutional division for life without the possibility of parole; or
Death

If the individual is found guilty and the state does not seek the death penalty:

Imprisonment in the institutional division for life without the possibility of parole.
However, a certified juvenile is no longer eligible for life without parole.

FIRST DEGREE FELONY [Tex. Penal Code § 12.32]:

Imprisonment in the institutional division for life, or
Imprisonment in the institutional division for not more than 99 years or less than five years with the exception of aggravated sexual assault, which adds a 25-year minimum punishment if the victim is younger than 6, or younger than 14 and the offense contained threats of serious bodily injury or death, or use of a deadly weapon; and/or
In addition to imprisonment, may receive a fine not to exceed $10,000.

SECOND DEGREE FELONY [Tex. Penal Code § 12.33]:

Imprisonment in the institutional division for not more than 20 years or less than two years; and/or
In addition to imprisonment, may receive a fine not to exceed $10,000.

THIRD DEGREE FELONY [Tex. Penal Code § 12.34]:

Imprisonment in the institutional division for not more than 10 years or less than two years; and/or
In additional to imprisonment, may receive a fine not to exceed $10,000.

STATE JAIL FELONY [Tex. Penal Code § 12.35(a),(b)]:

Confinement in a state jail for not more than two years and not less than 180 days; and/or
In addition to imprisonment, may receive a fine not to exceed $10,000.

CLASS A MISDEMEANOR [Tex. Penal Code § 12.21]:

Confinement in jail for a term not to exceed one year;
Fine not to exceed $4,000; and/or
Both such fine and confinement.

CLASS B MISDEMEANOR [Tex. Penal Code § 12.22]:

Confinement in jail for a term not to exceed 180 days;
Fine not to exceed $2,000; and/or
Both such fine and confinement.

CLASS C MISDEMEANOR [Tex. Penal Code § 12.23]:

Fine not to exceed $500.00.

These are “standard punishments.” The life sentences imposed on Brian Balentine and Randy Stovall are called “enhancement punishments” because they are reserved for repeat and habitual offenders. The following is a list of enhancement punishments:

ALL FELONIES [Tex. Penal Code § 12.42(d):

If a person is on trial for any felony (except a state jail felony) and it is shown at the trial that the person has been previously convicted of two felonies, and the second previous felony conviction is for an offense that occurred subsequent to the first previous conviction having become final, on conviction the defendant shall be punished by imprisonment in the institutional division for life, or for not more than 99 years or less than 25 years.

FIRST DEGREE FELONY [Tex. Penal Code § 12:42(c)]:

If a person is on trial for a first degree felony and it is shown at the trial that the person has once been previously convicted of a felony (but not a state jail felony), on conviction the person shall be punished by imprisonment in the institutional division for life, or not more than 99 years or less than 25 years. In addition to imprisonment, an individual may receive a fine not to exceed $10,000.

SECOND DEGREE FELONY: [Tex. Penal Code § 12.42(b)]:

If a person is on trial for a second degree felony and it shown at the trial that the person has once been previously convicted of a felony (but not a state jail felony), on conviction the person shall be punished for a first degree felony.

THIRD DEGREE FELONY [Tex. Penal Code § 12.42(a)(3):

If a person is on trial for a third degree felony and it shown at the trial that the person has once been previously convicted of a felony (but not a state jail felony), on conviction shall be punished for a second degree felony.

STATE JAIL FELONY [Tex. Penal Code § 12.42(a)(1)]:

If a person is on trial for a state jail felony and it is shown at the trial that the person has previously been finally convicted of two state jail felonies, on conviction the person shall be punished for a third degree felony.
[Tex. Penal Code § 12.42(a)(2)]: If a person is on trial for a state jail felony and it is shown at the trial that the person has previously been finally convicted of two felonies, and the second previous felony conviction is for an offense that occurred subsequent to the first previous conviction having become final, on conviction the defendant shall be punished for a second degree felony.
[Tex. Penal Code § 12.42(a)(3)]: If a person is on trial for a state jail felony that is punishable under § 12.35(c) and it is shown that the person has been once previously finally convicted of a felony [but not a state jail felony under § 12.35(a), on conviction the defendant shall be punished for a second degree felony.
[Tex. Penal Code § 12.35(c)]: State Jail Punishment enhanced to third degree felony if: 1) the person used or exhibited a deadly weapon during the crime or while fleeing the crime, the person who used or exhibited the deadly weapon or was a party to the offense knew that the deadly weapon would be used or shown; or 2) the person had previously been convicted of any felony listed in Article 42.12, § 3g(a)(1), Code of Criminal Procedure or for which the judgment contains an affirmative finding under Article 42.12, § 3g(a)(2), Code of Criminal Procedure.

CLASS A MISDEMEANOR [Tex. Penal Code § 12.43]:

If a person is on trial for a Class A offense and it is shown that the person has been previously convicted of any Class A misdemeanor or any degree of felony, on conviction the defendant shall be punished by: 1) Confinement in jail for not more than one year or less than 90 days; 2) A fine not to exceed $4,000.00; and/or 3) Both such fine and confinement.

CLASS B MISDEMEANOR [Tex. Penal Code § 12.43(b)]:

If a person is on trial for a Class B offense and it is shown that the person has been previously convicted of any Class A or a Class B misdemeanor or any degree of felony, on conviction the defendant shall be punished by: 1) Confinement in jail for not more than 180 days or less than 30 days; 2) A fine not to exceed $2,000.00; and/or 3) Both such fine and confinement.

CLASS C MISDEMEANOR [Tex. Penal Code § 12.43(c)]:

If a person is on trial for a Class C offense under Section 42.01 (disorderly conduct) or 49.02 (public intoxication) and it is shown that the person has been convicted under either of those sections three times or three times for any combination of those offenses and each prior offense was committed in the 24 months preceding the date of commission of the instant offense, on conviction the defendant shall be punished by: 1) Confinement in jail for not more than 180 days; 2) A fine not to exceed $2,000.00; and/or 3) Both such fine and confinement.

Article 1.02, Texas Penal Code, offers some legislative guidance as to why crime and its punishment are imposed in this state:

To ensure the public safety through: 1) the deterrent influence of the penalties hereinafter provides; 2) the rehabilitation of those of violations of this code; and 3) such punishment as may be necessary to prevent likely recurrence of criminal behavior;
By definition and grading of offenses to give fair warning of what is prohibited and of the consequences of violation;
To prescribe penalties that are proportionate to the seriousness of offenses and that permit recognition of differences in rehabilitation possibilities among individual offenders;
To safeguard conduct that is without guilt from condemnation as criminal;
To guide and limit the exercise of official discretion in law enforcement to prevent arbitrary or oppressive treatment of persons suspected, accused, and convicted of offenses; and
To define the scope of state interest in law enforcement against specific offenses and to systematize the exercise of state criminal jurisdiction.

There is certainly plenty of wiggle room in those purposes for crime and punishment to encourage hard-line prosecutors to seek life sentences for minor offenses, like the theft of five CDs and driving drunk, when a defendant has a long history of criminal conduct and convictions.

By: Houston Criminal Attorney John Floyd and Paralegal Billy Sinclair

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