PUNISHMENT RANGES, ENHANCEMENT OF PUNISHMENT FOR A STATE JAIL FELONY OFFENSE, REPEAT AND HABITUAL ENHANCEMENT OF PUNISHMENT, STACKING SENTENCES AND CONSOLIDATION OF SENTENCES AND STACKING, LIMITATION ON COURT ORDERED PROBATION, LIMITATION ON JURY GRANTED PROBATION, AND LAW OF PAROLE
BY
RALPH PETTY
ATTORNEY AT LAW
MIDLAND COUNTY, TEXAS
TABLE OF CONTENTS
PUNISHMENT RANGES
Sec. 12.31. Capital Felony.
Sec. 12.31. Capital Felony
(a) An individual adjudged guilty of a capital felony in a case in which the state seeks the death penalty shall be punished by imprisonment in the Texas Department of Criminal Justice for life without parole or by death. An individual adjudged guilty of a capital felony in a case in which the state does not seek the death penalty shall be punished by imprisonment in the Texas Department of Criminal Justice for:
(1) life, if the individual committed the offense when younger than 18 years of age; or
(2) life without parole, if the individual committed the offense when 18 years of age or older.
(b) In a capital felony trial in which the state seeks the death penalty, prospective jurors shall be informed that a sentence of life imprisonment without parole or death is mandatory on conviction of a capital felony. In a capital felony trial in which the state does not seek the death penalty, prospective jurors shall be informed that the state is not seeking the death penalty and that:
(1) a sentence of life imprisonment is mandatory on conviction of the capital felony, if the individual committed the offense when younger than 18 years of age; or
(2) a sentence of life imprisonment without parole is mandatory on conviction of the capital felony, if the individual committed the offense when 18 years of age or older.
Sec. 12.32. First Degree Felony Punishment
Sec. 12.32. First Degree Felony Punishment
(a) An individual adjudged guilty of a felony of the first degree shall be punished by imprisonment in the Texas Department of Criminal Justice for life or for any term of not more than 99 years or less than 5 years.
(b) In addition to imprisonment, an individual adjudged guilty of a felony of the first degree may be punished by a fine not to exceed $10,000.
Sec. 12.33. Second Degree Felony Punishment
Sec. 12.33. Second Degree Felony Punishment.
(a) An individual adjudged guilty of a felony of the second degree shall be punished by imprisonment in the Texas Department of Criminal Justice for any term of not more than 20 years or less than 2 years.
(b) In addition to imprisonment, an individual adjudged guilty of a felony of the second degree may be punished by a fine not to exceed $10,000.
Sec. 12.34. Third Degree Felony Punishment
Sec. 12.34. Third Degree Felony Punishment
(a) An individual adjudged guilty of a felony of the third degree shall be punished by imprisonment in the Texas Department of Criminal Justice for any term of not more than 10 years or less than 2 years.
(b) In addition to imprisonment, an individual adjudged guilty of a felony of the third degree may be punished by a fine not to exceed $10,000.
Sec. 12.35. State Jail Felony Punishment
Sec. 12.35. State Jail Felony Punishment
(a) Except as provided by Subsection (c), an individual adjudged guilty of a state jail felony shall be punished by confinement in a state jail for any term of not more than two years or less than 180 days.
(b) In addition to confinement, an individual adjudged guilty of a state jail felony may be punished by a fine not to exceed $10,000.
(c) An individual adjudged guilty of a state jail felony shall be punished for a third degree felony if it is shown on the trial of the offense that:
(1) a deadly weapon as defined by Section 1.07 was used or exhibited during the commission of the offense or during immediate flight following the commission of the offense, and that the individual used or exhibited the deadly weapon or was a party to the offense and knew that a deadly weapon would be used or exhibited; or
(2) the individual has previously been finally convicted of any felony:
(A) under Section 20A.03 or 21.02 or listed in Article 42A.054(a), Code of Criminal Procedure; or
(B) for which the judgment contains an affirmative finding under Article 42A.054(c) or (d), Code of Criminal Procedure.
SECTION 12.425 PENAL CODE - ENHANCEMENT OF PUNISHMENT FOR A NON-AGGRAVATED STATE JAIL FELONY OFFENSE UNDER SECTION 12.35(a) PENAL CODE TO A THIRD DEGREE FELONY BY TWO PRIOR NON-SEQUENTIAL STATE JAIL FELONIES OR TO A SECOND DEGREE FELONY BY TWO PRIOR SEQUENTIAL FELONY CONVICTIONS
SECTION 12.425 PENAL CODE - Penalties for Repeat and Habitual Felony Offenders on Trial for State Jail Felony
(a) If it is shown on the trial of a state jail felony punishable under Section 12.35(a) that the defendant has previously been finally convicted of two state jail felonies punishable under Section 12.35(a), on conviction the defendant shall be punished for a felony of the third degree. [Note: State jail felony convictions need not be sequential.]
(b) If it is shown on the trial of a state jail felony punishable under Section 12.35(a) that the defendant has previously been finally convicted of two felonies other than a state jail felony punishable under Section 12.35(a), and the second previous felony conviction [middle conviction] is for an offense that occurred subsequent to the first previous conviction [oldest conviction] having become final, on conviction the defendant shall be punished for a felony of the second degree. [Note: The two prior felony convictions must be sequential.]
(c) If it is shown on the trial of a state jail felony for which punishment may be enhanced under Section 12.35(c) that the defendant has previously been finally convicted of a felony other than a state jail felony punishable under Section 12.35(a), on conviction the defendant shall be punished for a felony of the second degree.
Tex. Penal Code § 12.425
Sec. 12.41. Classification of Offenses Outside This Code
Sec. 12.41. Classification of Offenses Outside This Code
For purposes of this subchapter, any conviction not obtained from a prosecution under this code shall be classified as follows:
(1) “felony of the third degree” if imprisonment in the Texas Department of Criminal Justice or another penitentiary is affixed to the offense as a possible punishment;
(2) “Class B misdemeanor” if the offense is not a felony and confinement in a jail is affixed to the offense as a possible punishment;
(3) “Class C misdemeanor” if the offense is punishable by fine only.
SECTION 12.42 PENAL CODE – REPEAT AND HABITUAL OFFENDER PUNISHMENT
Section 12.42 Penal Code - Penalties for Repeat and Habitual Felony Offenders on Trial for First, Second, or Third Degree Felony
Section 12.42 Penal Code
(a) Except as provided by Subsection (c)(2), if it is shown on the trial of a felony of the third degree that the defendant has previously been finally convicted of a felony other than a state jail felony punishable under Section 12.35(a), on conviction the defendant shall be punished for a felony of the second degree.
(b) Except as provided by Subsection (c)(2) or (c)(4), if it is shown on the trial of a felony of the second degree that the defendant has previously been finally convicted of a felony other than a state jail felony punishable under Section 12.35(a), on conviction the defendant shall be punished for a felony of the first degree.
(c)
(1) If it is shown on the trial of a felony of the first degree that the defendant has previously been finally convicted of a felony other than a state jail felony punishable under Section 12.35(a), on conviction the defendant shall be punished by imprisonment in the Texas Department of Criminal Justice for life, or for any term of not more than 99 years or less than 15 years. In addition to imprisonment, an individual may be punished by a fine not to exceed $10,000.
(2) Notwithstanding Subdivision (1), a defendant shall be punished by imprisonment in the Texas Department of Criminal Justice for life if:
(A) the defendant is convicted of an offense:
(i) under Section 20A.02(a)(7) or (8)[trafficking a child], 21.11(a)(1)[indecency with a child by contact], 22.021 [aggravated sexual assault], or 22.011 [sexual assault], Penal Code;
(ii) under Section 20.04(a)(4) [aggravated kidnapping], Penal Code, if the defendant committed the offense with the intent to violate or abuse the victim sexually; or
(iii) under Section 30.02 [burglary], Penal Code, punishable under Subsection (d) of that section [burglary of a habitation with the intent to commit or attempting to commit or committing a felony other than theft], if the defendant committed the offense with the intent to commit a felony described by Subparagraph (i) or (ii) or a felony under Section 21.11 [sexual assault], Penal Code; and
(B) the defendant has been previously convicted of an offense:
(i) under Section 43.25 [sexual performance b a child] or 43.26 [child pornography], Penal Code, or an offense under Section 43.23 [obscenity], Penal Code, punishable under Subsection (h) of that section;
(ii) under Section 20A.02(a)(7) or (8) [trafficking a child], 21.02 [continuous sexual abuse of young child], 21.11 [indecency with a child], 22.011 [sexual assault], 22.021 [aggravated sexual assault], or 25.02 [incest], Penal Code;
(iii) under Section 20.04(a)(4)[aggravated kidnapping], Penal Code, if the defendant committed the offense with the intent to violate or abuse the victim sexually;
(iv) under Section 30.02 [burglary], Penal Code, punishable under Subsection (d) of that section, if the defendant committed the offense with the intent to commit a felony described by Subparagraph (ii) or (iii); or
(v) under the laws of another state containing elements that are substantially similar to the elements of an offense listed in Subparagraph (i), (ii), (iii), or (iv).
(3) Section 3 held unconstitutional in Kennedy v. Louisiana, 554 U.S. 407 (2008). Notwithstanding Subdivision (1) or (2), a defendant shall be punished for a capital felony if it is shown on the trial of an offense under Section 22.021 [aggravated sexual assault] otherwise punishable under Subsection (f) [victim is younger than six or victim is younger than 14 and defendant caused serious bodily injury to victim] of that section that the defendant has previously been finally convicted of:
(A) an offense under Section 22.021 that was committed against a victim described by Section 22.021(f)(1) or was committed against a victim described by Section 22.021(f)(2) and in a manner described by Section 22.021(a)(2)(A); or
(B) an offense that was committed under the laws of another state that:
(i) contains elements that are substantially similar to the elements of an offense under Section 22.021; and
(ii) was committed against a victim described by Section 22.021(f)(1) or was committed against a victim described by Section 22.021(f)(2) and in a manner substantially similar to a manner described by Section 22.021(a)(2)(A).
(4) Notwithstanding Subdivision (1) or (2), and except as provided by Subdivision (3) for the trial of an offense under Section 22.021 as described by that subdivision, a defendant shall be punished by imprisonment in the Texas Department of Criminal Justice for life without parole if it is shown on the trial of an offense under Section 20A.03 [continuous trafficking of persons] or of a sexually violent offense, committed by the defendant on or after the defendant’s 18th birthday, that the defendant has previously been finally convicted of:
(A) an offense under Section 20A.03 or of a sexually violent offense; or
(B) an offense that was committed under the laws of another state and that contains elements that are substantially similar to the elements of an offense under Section 20A.03 or of a sexually violent offense.
(5) A previous conviction for a state jail felony punishable under Section 12.35(a) may not be used for enhancement purposes under Subdivision (2).
(d) Except as provided by Subsection (c)(2) or (c)(4), if it is shown on the trial of a felony offense other than a state jail felony punishable under Section 12.35(a) that the defendant has previously been finally convicted of two felony offenses, 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 Texas Department of Criminal Justice for life, or for any term of not more than 99 years or less than 25 years. A previous conviction for a state jail felony punishable under Section 12.35(a) may not be used for enhancement purposes under this subsection.
(e) [Repealed by Acts 2011, 82nd Leg., ch. 834 (H.B. 3384), § 6, effective September 1, 2011.]
(f) For the purposes of Subsections (a), (b), and (c)(1), an adjudication by a juvenile court under Section 54.03, Family Code, that a child engaged in delinquent conduct on or after January 1, 1996, constituting a felony offense for which the child is committed to the Texas Juvenile Justice Department under Section 54.04(d)(2), (d)(3), or (m), Family Code, or Section 54.05(f), Family Code, or to a post- adjudication secure correctional facility under Section 54.04011, Family Code, is a final felony conviction.
(g) For the purposes of Subsection (c)(2):
(1) a defendant has been previously convicted of an offense listed under Subsection (c)(2)(B) if the defendant was adjudged guilty of the offense or entered a plea of guilty or nolo contendere in return for a grant of deferred adjudication, regardless of whether the sentence for the offense was ever imposed or whether the sentence was probated and the defendant was subsequently discharged from community supervision; and
(2) a conviction under the laws of another state for an offense containing elements that are substantially similar to the elements of an offense listed under Subsection (c)(2)(B) is a conviction of an offense listed under Subsection (c)(2)(B).
(h) In this section, “sexually violent offense” means an offense:
(1) described by Article 62.001(6), Code of Criminal Procedure; and
(2) for which an affirmative finding has been entered under Article 42.015(b) or 42A.105(a), Code of Criminal Procedure, for an offense other than an offense under Section 21.02 or 22.021.
Tex. Penal Code § 12.42
DEADLY WEAPON DURING THE COMMISSION OF A CRIME AND SECTION 42A.054 C.C.P. CRIMINAL OFFENSES
Article 42A.054 C.C.P. - Limitation on Judge-Ordered Community Supervision. [Effective until September 1, 2019]
Article 42A.054 C.C.P. - Limitation on Judge-Ordered Community Supervision. [Effective until September 1, 2019]
(a) Article 42A.053 [authority of the court to grant probation after conviction] does not apply to a defendant adjudged guilty of an offense under:
(1) Section 15.03, Penal Code, if the offense is punishable as a felony of the first degree;
(2) Section 19.02, Penal Code (Murder);
(3) Section 19.03, Penal Code (Capital Murder);
(4) Section 20.04, Penal Code (Aggravated Kidnapping);
(5) Section 20A.02, Penal Code (Trafficking of Persons);
(6) Section 21.11(a)(1), Penal Code (Indecency with a Child);
(7) Section 22.011, Penal Code (Sexual Assault);
(8) Section 22.021, Penal Code (Aggravated Sexual Assault);
(9) Section 22.04(a)(1), Penal Code (Injury to a Child, Elderly Individual, or Disabled Individual), if:
(A) the offense is punishable as a felony of the first degree; and
(B) the victim of the offense is a child;
(10) Section 29.03, Penal Code (Aggravated Robbery);
(11) Section 30.02, Penal Code (Burglary), if:
(A) the offense is punishable under Subsection (d) of that section; and
(B) the actor committed the offense with the intent to commit a felony under Section 21.02, 21.11, 22.011, 22.021, or 25.02, Penal Code;
(12) Section 43.05, Penal Code (Compelling Prostitution);
(13) Section 43.25, Penal Code (Sexual Performance by a Child); or
(14) Chapter 481, Health and Safety Code, for which punishment is increased under:
(A) Section 481.140 of that code (Use of Child in Commission of Offense); or
(B) Section 481.134(c), (d), (e), or (f) of that code (Drug-free Zones) if it is shown that the defendant has been previously convicted of an offense for which punishment was increased under any of those subsections.
(b) Article 42A.053 [authority of the court to grant probation after conviction] does not apply to a defendant when it is shown that:
(1) a deadly weapon as defined by Section 1.07, Penal Code, was used or exhibited during the:
(A) commission of a felony offense; or
(B) immediate flight from the commission of a felony offense; and
(2) the defendant:
(A) used or exhibited the deadly weapon; or
(B) was a party to the offense and knew that a deadly weapon would be used or exhibited.
(c) On an affirmative finding regarding the use or exhibition of a deadly weapon as described by Subsection (b), the trial court shall enter the finding in the judgment of the court.
(d) On an affirmative finding that the deadly weapon under Subsection (c) was a firearm, the court shall enter that finding in its judgment.
Tex. Code Crim. Proc. Art. 42A.054
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DEADLY WEAPON - SECTION 1.07(a)(17) (A) & (B) PENAL CODE (DEFINITIONS)
"Deadly weapon means: (A) a firearm or anything manifestly designed, made, or adapted for the purpose of inflicting death or serious bodily injury; or (B) anything that in the manner of its use or intended use is capable of causing death or serious bodily injury.
FIREARM - SECTION 46.01(3) PENAL CODE (WEAPONS)
The term "deadly weapon" means a firearm. A "firearm" means any device designed, made, or adapted to expel a projectile through a barrel by using the energy generated by an explosion or burning substance or any device readily convertible to that use.
OTHER DEFINITIONS RELEVANT TO DEADLY WEAPON
Section 46.01(3) Penal Code - Firearm
“A "firearm" means any device designed, made, or adapted to expel a projectile through a barrel by using the energy generated by an explosion or burning substance or any device readily convertible to that use.”
Section 107(a) 46) Penal Code - Serious bodily Injury
“"Serious bodily injury" means bodily injury that creates a substantial risk of death or that causes death, serious permanent disfigurement, or protracted loss or impairment of the function of any bodily member or organ.”
Section 107(a)(8) Penal Code - Bodily Injury
“"Bodily injury" means physical pain, illness, or any impairment of physical condition.”
ARTICLE 42.12 Section 3g(a)(2) C.C.P. [now Article 42A.054(b)(2)(c) & (d) C.C.P.] - AFFIRMATIVE FINDING IN THE JUDGMENT OF DEADLY WEAPON DURING COMMISSION OF THE OFFENSE
ARTICLE 42.12 Section 3g(a)(2) C.C.P. [now Article 42A.054(b)(2)(c) & (d) C.C.P.] - AFFIRMATIVE FINDING IN THE JUDGMENT OF DEADLY WEAPON DURING COMMISSION OF THE OFFENSE
(2) to a defendant when it is shown that a deadly weapon as defined in Section 1.07, Penal Code, was used or exhibited during the commission of a felony offense or during immediate flight therefrom, and that the defendant used or exhibited the deadly weapon or was a party to the offense and knew that a deadly weapon would be used or exhibited. [c] On an affirmative finding under this subdivision, the trial court shall enter the finding in the judgment of the Court. [d] On an affirmative finding that the deadly weapon was a firearm, the court shall enter that finding in its judgment.”
CUMULATIVE AND CONCURRENT SENTENCES
Article 21.24 C.C.P. - JOINDER OF OFFENSES OCCURRING IN SAME CRIMINAL EPISODE IN ONE INDICTMENT - PLEADING
Article 21.24 C.C.P.: Joinder of Offenses
(a) Two or more offenses may be joined in a single indictment, information, or complaint with each offense stated in a separate count, if the offenses arise out of the same criminal episode, as defined in Chapter 3 of the Penal Code.
(b) A count may contain as many separate paragraphs charging the same offense as necessary, but no paragraph may charge more than one offense.
(c) A count is sufficient if any one of its paragraphs is sufficient. An indictment, information, or complaint is sufficient if any one of its counts is sufficient.
ARTICLE 42.08 CODE OF CRIMINAL PROCEDURE - CUMULATIVE OR CONCURRENT SENTENCES
Article 42.08 Code of Criminal Procedure - CUMULATIVE OR CONCURRENT SENTENCE
(a) When the same defendant has been convicted in two or more cases, judgment and sentence shall be pronounced in each case in the same manner as if there had been but one conviction. Except as provided by Sections (b) and (c) of this article in the discretion of the Court, the judgment in the second and subsequent convictions may either be that the sentence imposed or suspended shall begin when the judgment and sentence imposed or suspended in the preceding conviction has ceased to operate, or that the sentence imposed or suspended shall run concurrently with the other case or cases, and sentence and execution shall be according; provided however, that the cumulative total of suspended sentences in felony cases shall not exceed 10 years, and the cumulative total of suspended sentences in misdemeanor cases shall not exceed the maximum period of confinement applicable to the misdemeanor offenses, though in no event more than three years, including extensions of periods of community supervision under Section 22, Article 42.12, of this code, if none of the offenses are offenses under Chapter 49, Penal Code, or four years, including extensions, if any of the offenses are offenses under Chapter 49, Penal Code.
(b) If a defendant is sentenced for an offense committed while the defendant was an inmate in the institutional division off the Texas Department of Criminal Justice and the defendant has not completed the sentence he was serving at the time of the offense, the judge shall order the sentence for the subsequent to commence immediately on completion of the sentence for the original offense.
(c) If a defendant has been convicted in two or more cases and the court suspends the imposition of the sentence in one of the cases, the court may not order a sentence of confinement to commence on the completion of a suspended sentence for an offense.
STACKING PRISON SENTENCES TRIED IN A SINGLE CRIMINAL ACTION - SECTION 3.03 PENAL CODE
STACKING OF PRISON SENTENCES TRIED IN A SINGLE CRIMINAL ACTION - SECTION 3.03 PENAL CODE
Section 3.03. Penal Code - Sentences for Offenses Arising out of Same Criminal Episode
(a) When the accused is found guilty of more than one offense arising out of the same criminal episode prosecuted in a single criminal action, a sentence for each offense for which he has been found guilty shall be pronounced. Except as provided by Subsection (b), the sentences shall run concurrently.
(b) [Effective September 1, 1997] If the accused is found guilty of more than one offense arising out of the same criminal episode, the sentences may run concurrently or consecutively if each sentence is for a conviction of:
(1) an offense:
(A) under Section 49.07 [intoxication assault] or 49.08 [intoxication manslaughter]; or
(B) for which a plea agreement was reached in a case in which the accused was charged with more than one offense under Section 49.08 [intoxication manslaughter]; or
(2) an offense:
(A) under Section 33.021 [online solicitation of a minor]or an offense under Section 21.02 [continuous sexual abuse of young child or children], 21.11 [indecency with a child], 22.011 [sexual assault], 22.021 [aggravated sexual assault], 25.02 [prohibited sexual conduct (incest)], or 43.25 [sexual performance by a child] committed against a victim younger than 17 years of age at the time of the commission of the offense regardless of whether the accused is convicted of violations of the same section more than once or is convicted of violations of more than one section; or
(B) for which a plea agreement was reached in a case in which the accused was charged with more than one offense listed in Paragraph (A) committed against a victim younger than 17 years of age at the time of the commission of the offense regardless of whether the accused is charged with violations of the same section more than once or is charged with violations of more than one section.
(3) [Effective Date Unknown] an offense:
(A) under Section 21.15 [Improper Photography or Visual Recording] or 43.26 [Possession or Promotion of Child Pornography], regardless of whether the accused is convicted of violations of the same section more than once or is convicted of violations of both sections; or
(B) for which a plea agreement was reached in a case in which the accused was charged with more than one offense listed in Paragraph (A), regardless of whether the accused is charged with violations of the same section more than once or is charged with violations of both sections;
(4) an offense for which the judgment in the case contains an affirmative finding under Article 42.0197, Code of Criminal Procedure;
(5) [Effective September 1, 2011] an offense:
(A) under Section 20A.02 [Trafficking of Persons] or 43.05 [Compelling Prostitution], regardless of whether the accused is convicted of violations of the same section more than once or is convicted of violations of both sections;
(B) for which a plea agreement was reached in a case in which the accused was charged with more than one offense listed in Paragraph (A), regardless of whether the accused is charged with violations of the same section more than once or is charged with violations of both sections; or
(6) Effective September 1, 2013] an offense:
(A) under Section 22.04(a)(1) [Injury to a Child, elderly Individual or Disabled Individual (causing serious bodily injury] or (2) or Section 22.04(a-1)(1) or (2) that is punishable as a felony of the first degree, regardless of whether the accused is convicted of violations of the same section more than once or is convicted of violations of more than one section; or
(B) for which a plea agreement was reached in a case in which the accused was charged with more than one offense listed in Paragraph (A) and punishable as described by that paragraph, regardless of whether the accused is charged with violations of the same section more than once or is charged with violations of more than one section.
(b-1) Subsection (b)(4) does not apply to a defendant whose case was transferred to the court under Section 54.02, Family
Tex. Penal Code § 3.03
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CONSOLIDATION AND JOINDER OF OFFENSES IN A SINGLE CRIMINAL ACTION AND STACKING OF SENTENCES
Section 3.01 Penal Code - Definitions
In this chapter, "criminal episode" means the commission of two or more offenses, regardless of whether the harm is directed toward or inflicted upon more than one person or item of property, under the following circumstances:
(1) the offenses are committed pursuant to the same transaction or pursuant to two or more transactions that are connected or constitute a common scheme or plan; or
(2) the offenses are the repeated commission of the same or similar offenses.
Section 3.02 Penal Code: Consolidation and Joinder of Prosecutions
(a) A defendant may be prosecuted in a single criminal action for all offenses arising out of the same criminal episode.
(b) When a single criminal action is based on more than one charging instrument within the jurisdiction of the trial court, the state shall file written notice of the action not less than 30 days prior to the trial.
(c) If a judgment of guilt is reversed, set aside, or vacated, and a new trial ordered, the state may not prosecute in a single criminal action in the new trial any offense not joined in the former prosecution unless evidence to establish probable guilt for that offense was not known to the appropriate prosecuting official at the time the first prosecution commenced.
Section 3.03. Penal Code - Sentences for Offenses Arising out of Same Criminal Episode
Section 3.03. Penal Code - Sentences for Offenses Arising out of Same Criminal Episode
(a) When the accused is found guilty of more than one offense arising out of the same criminal episode prosecuted in a single criminal action, a sentence for each offense for which he has been found guilty shall be pronounced. Except as provided by Subsection (b), the sentences shall run concurrently.
(b) [Effective September 1, 1997] If the accused is found guilty of more than one offense arising out of the same criminal episode, the sentences may run concurrently or consecutively if each sentence is for a conviction of:
(1) an offense:
(A) under Section 49.07 [intoxication assault] or 49.08 [intoxication manslaughter]; or
(B) for which a plea agreement was reached in a case in which the accused was charged with more than one offense under Section 49.08 [intoxication manslaughter]; or
(2) an offense:
(A) under Section 33.021 [online solicitation of a minor]or an offense under Section 21.02 [continuous sexual abuse of young child or children], 21.11 [indecency with a child], 22.011 [sexual assault], 22.021 [aggravated sexual assault], 25.02 [prohibited sexual conduct (incest)], or 43.25 [sexual performance by a child] committed against a victim younger than 17 years of age at the time of the commission of the offense regardless of whether the accused is convicted of violations of the same section more than once or is convicted of violations of more than one section; or
(B) for which a plea agreement was reached in a case in which the accused was charged with more than one offense listed in Paragraph (A) committed against a victim younger than 17 years of age at the time of the commission of the offense regardless of whether the accused is charged with violations of the same section more than once or is charged with violations of more than one section.
(3) [Effective Date Unknown] an offense:
(A) under Section 21.15 [Improper Photography or Visual Recording] or 43.26 [Possession or Promotion of Child Pornography], regardless of whether the accused is convicted of violations of the same section more than once or is convicted of violations of both sections; or
(B) for which a plea agreement was reached in a case in which the accused was charged with more than one offense listed in Paragraph (A), regardless of whether the accused is charged with violations of the same section more than once or is charged with violations of both sections;
(4) an offense for which the judgment in the case contains an affirmative finding under Article 42.0197, Code of Criminal Procedure;
(5) [Effective September 1, 2011] an offense:
(A) under Section 20A.02 [Trafficking of Persons] or 43.05 [Compelling Prostitution], regardless of whether the accused is convicted of violations of the same section more than once or is convicted of violations of both sections;
(B) for which a plea agreement was reached in a case in which the accused was charged with more than one offense listed in Paragraph (A), regardless of whether the accused is charged with violations of the same section more than once or is charged with violations of both sections; or
(6) Effective September 1, 2013] an offense:
(A) under Section 22.04(a)(1) [Injury to a Child, elderly Individual or Disabled Individual (causing serious bodily injury] or (2) or Section 22.04(a-1)(1) or (2) that is punishable as a felony of the first degree, regardless of whether the accused is convicted of violations of the same section more than once or is convicted of violations of more than one section; or
(B) for which a plea agreement was reached in a case in which the accused was charged with more than one offense listed in Paragraph (A) and punishable as described by that paragraph, regardless of whether the accused is charged with violations of the same section more than once or is charged with violations of more than one section.
(b-1) Subsection (b)(4) does not apply to a defendant whose case was transferred to the court under Section 54.02, Family
Tex. Penal Code § 3.03
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Section 3.04 Penal Code: Severance
(a) Whenever two or more offenses have been consolidated or joined for trial under Section 3.02, the defendant shall have a right to a severance of the offenses.
(b) In the event of severance under this section, the provisions of Section do not apply, and the court in its discretion may order the sentences to run either concurrently or consecutively.
(c) The right to severance under this section does not apply to a prosecution for offenses described by Section 3.03(b)(2) unless the court determines that the defendant or the state would be unfairly prejudiced by a joinder of offenses, in which event the judge may order the offenses to be tried separately or may order other relief as justice requires.
CONSOLIDATION AND JOINER OF OFFENSES FOR TRIAL AT THE REQUEST OF THE DEFENSE - THE SENTENCES CAN BE STACKED
Where a defendant was charged in two indictments with two separate and distinct offense arising out of one transaction, and the cases were consolidated for trial at the request of the defendant, the court had the authority to run the sentences consecutively. "Appellant moved to consolidate his cases in one trial. The trial court granted his request. Subsequently, a jury convicted appellant of both assaults and assessed punishment for each offense at nine years confinement. The trial court noted in its judgment, and admonished the appellant in open court, the nine year sentence in cause no. 15,315-B would begin after the completion of the sentence in cause no. 15,313-B."
Phillips v. State, 787 S.W.2d 391, 393 (Tex. Crim. App. 1990)
ARTICLE 42A.053 C.C.P. - AUTHORITY OF THE COURT TO GRANT COMMUNITY SUPERVISION AND MAXIMUM AND MINIMUM PERIODS OF COMMUNITY SUPERVISION FOR FELONY OFFENSES
ARTICLE 42A.053 C.C.P. - AUTHORITY OF THE COURT TO GRANT COMMUNITY SUPERVISION - MAXIMUM AND MINIMUM PERIODS OF COMMUNITY SUPERVISION FOR FELONY OFFENSES - LIMITATION ON JUDGE ORDERED COMMUNITY SUPERVISION - NO COMMUNITY SUPERVISION FOR A SENTENCE THAT EXCEEDS 10 YEARS
ARTICLE 42A.053 C.C.P. - JUDGE ORDERED COMMUNITY SUPERVISION
(a) A judge, in the best interest of justice, the public, and the defendant, after conviction or a plea of guilty or nolo contendere, may:
(1) suspend the imposition of the sentence and place the defendant on community supervision; or
(2) impose a fine applicable to the offense and place the defendant on community supervision.
(b) A judge may not deny community supervision to a defendant based solely on the defendant’s inability to speak, read, write, hear, or understand English.
(c) A defendant is not eligible for community supervision under this article if the defendant is sentenced to serve:
(1) a term of imprisonment that exceeds 10 years; or
(2) a term of confinement under Section 12.35 [state jail felony], Penal Code.
(d) In a felony case:
(1) the minimum period of community supervision is the same as the minimum term of imprisonment applicable to the offense; and
(2) the maximum period of community supervision is:
(A) 10 years, for a felony other than a third degree felony described by Paragraph (B); and
(B) five years, for any of the following third degree felonies:
(i) a third degree felony under Title 7, Penal Code [offenses against property]; and
(ii) a third degree felony under Chapter 481, Health and Safety Code.
(e) Notwithstanding Subsection (d), the minimum period of community supervision under this article for a felony described by Article 42A.453(b) is five years. [See list of Article 42A.453(b) offenses stated below].
(f) The maximum period of community supervision in a misdemeanor case is two years.
(g) Notwithstanding Subsection (d)(2) or (f), a judge may extend the maximum period of community supervision in the manner provided by Article 42A.753 or 42A.757.
Tex. Code Crim. Proc. Art. 42A.053
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ARTICLE 42A.054 C.C.P. OFFENSES - FORMER ARTICLE 42.12 SECTION 3g C.C.P.(a)(1) C.C.P. - LIMITATION ON COURT ORDERED (REGULAR) COMMUNITY SUPERVISION FOR THE LISTED OFFENSES & RELEASE ON PAROLE AFTER ONLY AFTER SERVING 1/2 OF SENTENCE DAY FOR DAY
ARTICLE 42A.054 C.C.P. OFFENSES - FORMER ARTICLE 42.12 SECTION 3g C.C.P. (a)(1) C.C.P. OFFENSES - LIMITATION ON JUDGE ORDERED (REGULAR) COMMUNITY SUPERVISION FOR THE LISTED OFFENSES
ARTICLE 42A.054 C.C.P IS THE NEW ARTICLE 42.12 SECTION 3G.
NOTE: The Court does not have the authority to grant probation after conviction for the offenses listed in Article 42A.054 C.C.P. - Limitation on Judge-Ordered Community Supervision. Those offenses include murder, aggravated robbery, aggravated kidnapping, sexual assault, aggravated sexual assault, compelling prostitution, sexual performance of a child and others or any offense in which the defendant used or exhibited a deadly during the commission of the offense or was a party to the offense and knew that a deadly weapon would be used or exhibited. The offenses of intoxication manslaughter, manslaughter and criminally negligent homicide are not included in the list of offenses for which the court cannot grant probation after conviction.
ARTICLE 42A.054 C.C.P. AND FORMER ARTICLE 42.12 SECTION 3g C.C.P. (a)(1) C.C.P. - LIMITATION ON JUDGE ORDERED (REGULAR) COMMUNITY SUPERVISION FOR THE LISTED OFFENSES OR FOR AN OFFENSE IN WHICH THE JUDGEMENT STATES THAT THE DEFENDANT USED OR EXHIBITED A DEADLY WEAPON DURING THE COMMISSION OF THE OFFENSE OR THE DEFENDANT WAS A PARTY TO THE OFFENSE AND KNEW THAT A DEADLY WEAPON WOULD BE USED OR EXHIBITED.
LISTED ARTICLE 42A.054 C.C.P. OFFENSES AND FORMER ARTICLE 42.12 SECTION 3g C.C.P. (a)(1) C.C.P. OFFENSES ARE OFFENSES FOR WHICH THE DEFENDANT MUST SERVE ONE-HALF OF THE DEFENDANT’S SENTENCE DAY FOR DAY BEFORE THE DEFENDANT BECOMES ELIGIBLE FOR PAROLE.
Note: Article 42A.701 (g) C.C.P. provides that judicial clemency does not apply to certain offenses:
(g) This section does not apply to a defendant convicted of:
(1) an offense under Sections 49.04-49.08 [DWI offenses], Penal Code,
(2) an offense for which on conviction registration as a sex offender is required under Chapter 62;
(3) a felony described by Article 42A.054 [Former Article 42.12 Section 3g offenses].
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Article 42A.054 C.C.P. - Limitation on Judge-Ordered Community Supervision.
(a) Article 42A.053 [authority of the court to grant regular probation] does not apply to a defendant adjudged guilty of an offense under:
(1) Section 15.03 [criminal solicitation], Penal Code, if the offense is punishable as a felony of the first degree;
(2) Section 19.02, Penal Code (Murder);
(3) Section 19.03, Penal Code (Capital Murder);
(4) Section 20.04, Penal Code (Aggravated Kidnapping);
(5) Section 20A.02, Penal Code (Trafficking of Persons);
(6) Section 21.11(a)(1), Penal Code (Indecency with a Child by contact);
(7) Section 22.011, Penal Code (Sexual Assault);
(8) Section 22.021, Penal Code (Aggravated Sexual Assault);
(9) Section 22.04(a)(1), Penal Code (Injury to a Child, Elderly Individual, or Disabled Individual), if:
(A) the offense is punishable as a felony of the first degree; and
(B) the victim of the offense is a child;
(10) Section 29.03, Penal Code (Aggravated Robbery);
(11) Section 30.02, Penal Code (Burglary), if:
(A) the offense is punishable under Subsection (d) of that section; and
(B) the actor committed the offense with the intent to commit a felony under Section 21.02, 21.11, 22.011, 22.021, or 25.02, Penal Code;
(12) Section 43.05, Penal Code (Compelling Prostitution);
(13) Section 43.25, Penal Code (Sexual Performance by a Child); or
(14) Chapter 481, Health and Safety Code, for which punishment is increased under:
(A) Section 481.140 of that code (Use of Child in Commission of Offense); or
(B) Section 481.134(c), (d), (e), or (f) of that code (Drug-free Zones) if it is shown that the defendant has been previously convicted of an offense for which punishment was increased under any of those subsections.
(b) Article 42A.053 [court granted community supervision] does not apply to a defendant when it is shown that:
(1) a deadly weapon as defined by Section 1.07, Penal Code, was used or exhibited during the:
(A) commission of a felony offense; or
(B) immediate flight from the commission of a felony offense; and
(2) the defendant:
(A) used or exhibited the deadly weapon; or
(B) was a party to the offense and knew that a deadly weapon would be used or exhibited.
(c) On an affirmative finding regarding the use or exhibition of a deadly weapon as described by Subsection (b), the trial court shall enter the finding in the judgment of the court.
(d) On an affirmative finding that the deadly weapon under Subsection (c) was a firearm, the court shall enter that finding in its judgment.
Tex. Code Crim. Proc. Art. 42A.054
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ARTICLE 42A.055 & 42A.056 C.C.P. - ELIGIBILITY FOR JURY PROBATION AND NO JURY PROBATION FOR CERTAIN OFFENSES - EFFECTIVE JANUARY 1, 2017
ELIGIBILITY FOR PROBATION BY A JURY UNDER ARTICLE 42A.055 C.C.P. - NO JURY PROBATION FOR A A FELONY OFFENSE LISTED BY ARTICLE 42A.056 C.C.P. AND FORMER ARTICLE 42.12 SECTION 4(d) C.C.P.
See Article 42A.056 C.C.P. - Limitation on Jury Recommended Community Supervision effective January 1, 2017 - previously effective September 1, 2007 under Article 42.12 Section 4 C.C.P. - Jury recommended Community Supervision
Article 42A.055 C.C.P. – Jury recommended Community Supervision effective January 1, 2017
(a) A jury that imposes confinement as punishment for an offense may recommend to the judge that the judge suspend the imposition of the sentence and place the defendant on community supervision. A judge shall suspend the imposition of the sentence and place the defendant on community supervision if the jury makes that recommendation in the verdict.
(b) A defendant is eligible for community supervision under this article only if:
(1) before the trial begins, the defendant files a written sworn motion with the judge that the defendant has not previously been convicted of a felony in this or any other state; and
(2) the jury enters in the verdict a finding that the information contained in the defendant’s motion is true.
(c) If the jury recommends to the judge that the judge place the defendant on community supervision, the judge shall place the defendant on community supervision for any period permitted under Articles 42A.053(d) and (f), as appropriate.
(d) A judge may extend the maximum period of community supervision in the manner provided by Article 42A.753 or 42A.757.
Tex. Code Crim. Proc. Art. 42A.055
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ARTICLE 42A.056 C.C.P. - LIMITATION ON JURY RECOMMENDED COMMUNITY SUPERVISION EFFECTIVE JANUARY 1, 2017
Article 42A.056 C.C.P. - Limitation on Jury Recommended Community Supervision effective January 1, 2017
A defendant is not eligible for community supervision under Article 42A.055 [by a jury] if the defendant:
(1) is sentenced to a term of imprisonment that exceeds 10 years;
(2) is convicted of a state jail felony for which suspension of the imposition of the sentence occurs automatically under Article 42A.551 [certain state jail felony offenses];
(3) is adjudged guilty of an offense under Section 19.02, Penal Code [murder];
(4) is convicted of an offense under Section 21.11(a)(1) [indecency with a child by contact], 22.011 [sexual assault], or 22.021 [aggravated sexual assault], Penal Code, if the victim of the offense was younger than 14 years of age at the time the offense was committed;
(5) is convicted of an offense under Section 20.04 [aggravated kidnapping], Penal Code, if:
(A) the victim of the offense was younger than 14 years of age at the time the offense was committed; and
(B) the actor committed the offense with the intent to violate or abuse the victim sexually;
(6) is convicted of an offense under Section 20A.02 [trafficking of persons], 43.05 [compelling prostitution], or 43.25 [sexual performance by a child], Penal Code; or
(7) is convicted of an offense for which punishment is increased under Section 481.134(c), (d), (e), or (f), Health and Safety Code, if it is shown that the defendant has been previously convicted of an offense for which punishment was increased under any of those subsections.
Tex. Code Crim. Proc. Art. 42A.056
SECTION 508.145 GOVERNMENT CODE - ELIGIBILITY FOR RELEASE ON PAROLE; COMPUTATION OF PAROLE ELIGIBILITY DATE - EFFECTIVE JANUARY 1, 2017
SECTION 508.145 GOVERNMENT CODE - ELIGIBILITY FOR RELEASE ON PAROLE; COMPUTATION OF PAROLE ELIGIBILITY DATE - EFFECTIVE JANUARY 1, 2017
Section 508.145 Government Code - Eligibility for Release on Parole; Computation of Parole Eligibility Date - Effective January 1, 2017
(a) An inmate under sentence of death, serving a sentence of life imprisonment without parole, serving a sentence for an offense under Section 21.02 [Continuous Sexual Abuse of Young Child or Children], Penal Code, or serving a sentence for an offense under Section 22.021 [Aggravated Sexual Assault], Penal Code, that is punishable under Subsection (f) of that section is not eligible for release on parole.
(b) An inmate serving a life sentence under Section 12.31(a)(1), Penal Code, for a capital felony is not eligible for release on parole until the actual calendar time the inmate has served, without consideration of good conduct time, equals 40 calendar years.
(c) An inmate serving a sentence under Section 12.42(c)(2) [convictions of certain offenses and prior conviction of certain offense], Penal Code, is not eligible for release on parole until the actual calendar time the inmate has served, without consideration of good conduct time, equals 35 calendar years.
(d)
(1) This subsection applies only to an inmate who is serving a sentence for:
(A) an offense described by Article 42A.054(a), Code of Criminal Procedure, other than an offense under Section 19.03 [Capital Murder], Penal Code;
(B) an offense for which the judgment contains an affirmative finding under Article 42A.054(c) or (d), Code of Criminal Procedure;
(C) an offense under Section 20A.03 [Continuous trafficking of Persons], Penal Code; or
(D) an offense under Section 71.02 [Engaging in Organized Criminal Activity] or 71.023 [Directing activities of Criminal Street gangs], Penal Code.
(2) An inmate described by Subdivision (1) is not eligible for release on parole until the inmate’s actual calendar time served, without consideration of good conduct time, equals one-half of the sentence or 30 calendar years, whichever is less, but in no event is the inmate eligible for release on parole in less than two calendar years.
(3) Notwithstanding Subdivision (2), an inmate who is serving a sentence for an offense under Section 22.021, Penal Code, is not eligible for release on parole if the inmate is serving a sentence for an offense for which punishment was enhanced under Section 12.42(c)(4), Penal Code.
(d-1) Notwithstanding Subsection (d), for every 12 months that elapse between the date an arrest warrant is issued for the inmate following an indictment for the offense and the date the inmate is arrested for the offense, the earliest date on which an inmate is eligible for parole is delayed by three years from the date otherwise provided by Subsection (d), if the inmate is serving a sentence for an offense under Section 19.02 [murder], 22.011 [sexual assault], or 22.021 [aggravated sexual assault], Penal Code.
(e) An inmate serving a sentence for which the punishment is increased under Section 481.134, Health and Safety Code, is not eligible for release on parole until the inmate’s actual calendar time served, without consideration of good conduct time, equals five years or the term to which the inmate was sentenced, whichever is less.
(f) Except as provided by Section 508.146, any other inmate is eligible for release on parole when the inmate’s actual calendar time served plus good conduct time equals one-fourth of the sentence imposed or 15 years, whichever is less.
Tex. Gov’t Code § 508.145
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ELIGIBILITY FOR PROBATION BY THE
COURT OR JURY FOR A SEXUAL OFFENSE, PAROLE AND STACKING
RALPH PETTY
ATTORNEY AT LAW
MIDLAND COUNTY, TEXAS
TABLE OF CONTENTS
PUNISHMENT RANGES FOR COMMON SEXUAL OFFENSES 1
THE REQUIREMENT THAT THE FACTS OF THE OFFENSE THAT EFFECT THE RANGE OF PUNISHMENT OR ELIGIBILITY FOR PROBATION OR DEFERRED ADJUDICATION BE PLEAD IN THE INDICTMENT 2
FAILURE TO ALLEGE FACTS THAT DETERMINE THE GRADE OR PUNISHMENT ATTACHED TO THE OFFENSE 3
SUMMARY OF THE STATUTES REGARDING PROBATION BY THE COURT OR JURY FOR A SEXUAL OFFENSE 6
ELIGIBILITY FOR PAROLE FOR SEXUAL OFFENSES 9
ARTICLE 42A.053 C.C.P. EFFECTIVE SEPTEMBER 1, 2019 - AUTHORITY OF THE COURT TO GRANT REGULAR COMMUNITY SUPERVISION - MAXIMUM AND MINIMUM PERIODS OF COMMUNITY SUPERVISION - LIMITATION ON JUDGE ORDERED COMMUNITY SUPERVISION - NO COMMUNITY SUPERVISION FOR A SENTENCE THAT EXCEEDS 10 YEARS 11
ARTICLE 42A.053 C.C.P. - AUTHORITY OF THE COURT TO GRANT REGULAR COMMUNITY SUPERVISION & MAXIMUM AND MINIMUM PERIODS OF COMMUNITY SUPERVISION EFFECTIVE SEPTEMBER 1, 2019 12
ARTICLE 42A.453(b) C.C.P. LISTED OFFENSES REQUIRING MINIMUM 5 YEAR PERIOD OF COMMUNITY SUPERVISION AND REQUIRING CHILD SAFETY ZONE AS A CONDITION OF COMMUNITY SUPERVISION 13
ARTICLE 42A.453(b) C.C.P. - CLEAR LIST OF OFFENSES REQUIRING MINIMUM 5 YEAR PERIOD OF PROBATION 14
ARTICLE 42A.054 C.C.P. OFFENSES - LIMITATION ON JUDGE ORDERED (REGULAR) COMMUNITY SUPERVISION FOR LISTED OFFENSES EFFECTIVE SEPTEMBER 1, 2019 - FORMER ARTICLE 42.12 SECTION 3g OFFENSES 15
ARTICLE 42A.102 C.C.P. AUTHORITY OF THE COURT TO GRANT A DEFERRED ADJUDICATION OF GUILT - THE COURT CANNOT GRANT DEFERRED ADJUDICATION FOR CERTAIN LISTED OFFENSES - EFFECTIVE SEPTEMBER 1, 2019 18
ARTICLE 42A.101 C.C.P. - AUTHORITY OF THE COURT TO GRANT DEFERRED ADJUDICATION COMMUNITY SUPERVISION - EFFECTIVE SEPTEMBER 1, 2019 18
ARTICLE 42A.102(b) C.C.P. - LIMITATION ON THE AUTHORITY OF THE COURT TO GRANT A DEFERRED ADJUDICATION OF GUILT - EFFECTIVE SEPTEMBER 1, 2019 19
ARTICLE 42A.453(b) C.C.P. LISTED OFFENSES REQUIRING 5 YEAR MINIMUM PERIOD OF COMMUNITY SUPERVISION AND REQUIRING A CHILD SAFETY ZONE AS A CONDITION OF COMMUNITY SUPERVISION 21
ARTICLE 42A.453(b) C.C.P. - CLEAR LIST OF OFFENSES REQUIRING 5 YEAR MINIMUM PERIOD OF COMMUNITY SUPERVISION 22
ARTICLE 42A.055 & 42A.056 C.C.P. EFFECTIVE JANUARY 1, 2019 - ELIGIBILITY FOR JURY PROBATION AND NO JURY PROBATION FOR CERTAIN OFFENSES 23
ARTICLE 42A.055 C.C.P. – JURY RECOMMENDED COMMUNITY SUPERVISION EFFECTIVE JANUARY 1, 2017 AND SEPTEMBER 1, 2019 23
ARTICLE 42A.056 C.C.P. - LIMITATION ON JURY RECOMMENDED COMMUNITY SUPERVISION EFFECTIVE SEPTEMBER 1, 2019 - FORMER ARTICLE 42.12 SECTION 4 C.C.P. 24
FORMER ARTICLE 42.12 SECTION 4 C.C.P. EFFECTIVE SEPTEMBER 1, 2007 - LIMITATION ON JURY RECOMMENDED PROBATION 25
ARTICLE 42.08 C.C.P. - AUTHORITY AND DISCRETION OF THE COURT TO STACK SENTENCES AND PROBATIONS 26
SECTION 3.04 PENAL CODE: SEVERANCE 27
SECTION 3.03. PENAL CODE - SENTENCES FOR OFFENSES ARISING OUT OF SAME CRIMINAL EPISODE PROSECUTED IN A SINGLE CRIMINAL ACTION – STACKING – EFFECTIVE FOR SEPTEMBER 1, 2019 28
THE COURT MAY STACK SENTENCES FOR OFFENSES CONSOLIDATED FOR TRIAL AT THE REQUEST OF DEFENDANT 31
NO. ______________
THE STATE OF TEXAS * IN THE DISTRICT COURT
*
V. * _______ JUDICIAL DISTRICT
*
_________________________ * MIDLAND COUNTY, TEXAS
ELIGIBILITY FOR PROBATION BY THE COURT OR JURY
FOR A SEXUAL OFFENSE, PAROLE AND STACKING
PUNISHMENT RANGES FOR COMMON SEXUAL OFFENSES
Continuous sexual abuse of a young child or children under Section 21.02 Penal Code – life, or for any term of not more than 99 years or less than 25 years. No parole.
Aggravated sexual assault under Section 22.021 Penal Code – First Degree Felony Offense. Parole after serving one-half of the sentence day for day.
Supper aggravated sexual assault under Section 22.021 Penal Code, (victim was younger than six years of age at the time of the offense or the victim was younger than 14 years of age at the time of the offense and the defendant caused serious bodily injury to the victim or attempted to cause the death of the victim or another in the course of the same criminal episode). See Section 22.021(f) and Section 22.021(a)(2)(A) Penal Code. Life, or for any term of not more than 99 years or less than 25 years. No parole.
Sexual Assault under Section 22,011 Penal Code. Second Degree Felony offense under Section 22.011(f) Penal Code. Section 22.011(f) Penal Code: “22.011(f) An offense under this section is a felony of the second degree, except that an offense under this section is: (1) A felony of the first degree if the victim was a person whom the actor was prohibited from marrying or purporting to marry or with whom the actor was prohibited from living under the appearance of being married under Section 25.01 or; (2) a person with whom the actor was prohibited from engaging in sexual or deviate sexual intercourse under Section 25.02 [Prohibited Sexual Conduct].” Parole after serving one-half of the sentence day for day.
Indecency with a child by sexual contact under Section 21.11(a)(1) Penal Code: “engages in sexual contact with the child or causes the child to engage in sexual contact.” Second Degree Felony Offense. Section 21.11 (d) Penal Code: “(d) An offense under Subsection (a)(1) is a felony of the second degree and an offense under Subsection (a)(2) is a felony of the third degree.” Parole after serving one-half of the sentence day for day.
Indecency with a child by exposure under Section 21.11(a)(2) Penal Code: “(A) exposes the person’s anus or any part of the person’s genitals, knowing the child is present; or (B) causes the child to expose the child’s anus or any part of the child’s genitals.” Third Degree Felony. Section 21.11 (d) Penal Code: “(d) An offense under Subsection (a)(1) is a felony of the second degree and an offense under Subsection (a)(2) is a felony of the third degree.” Parole after serving one-half of the sentence day for day.
THE REQUIREMENT THAT THE FACTS OF THE OFFENSE THAT EFFECT THE RANGE OF PUNISHMENT OR ELIGIBILITY FOR PROBATION OR DEFERRED ADJUDICATION BE PLEAD IN THE INDICTMENT
“The indictment specifically alleged that Anthony intentionally and knowingly penetrated the sexual organ of S.S., a child who was younger than fourteen years old.n12 The record contains no notice or any indication that the State intended to invoke § 22.021(f)'s twenty-five-year statutory minimum for sexual assault of a child under six. Anthony's Felony Plea of Guilty, Admonishments, Waivers, Stipulations and Judicial Confession shows that he pleaded guilty and judicially confessed to sexually assaulting a child younger than fourteen years old as alleged in the indictment. He pleaded guilty to a first-degree felony with a punishment range of five to ninety-nine years or life, n13 and was admonished on that range of punishment both orally and in writing at the time he received deferred adjudication. Other than the notation that the victim was three years old—a finding, we add, that could be accurate under the indictment alleging a victim younger than fourteen years old—the record contains no other indication that any of the parties or the judge intended to punish the aggravated sexual assault under § 22.021(f). Furthermore, the presumption of regularity requires that we indulge every presumption in favor of the regularity of the plea proceedings and trial court's documents in connection to Anthony's deferred adjudication and judgment.n14 Even if the finding is accurate, it has no support in the record.n15 There is no confession, stipulation, admission, or evidence in the record permitting the judge to find that the victim was three years old at the time of the assault. ¶ We reverse the court of appeals' judgment. Our conclusion on the deferred-adjudication order's propriety resolves Anthony's complaints asserted below. We strike from the trial court's judgment the finding that the victim was three years old and reform the judgment to reflect a finding that the victim "was younger than 14 years of age at the time of the offense." n19 We reinstate the trial court's judgment, as reformed.”
Anthony v. State, 494 S.W.3d 106 (Tex. Crim. App. 2016); published; No. PD-0290-15; 2016 Tex. Crim. App. LEXIS 94, 4-7 (Tex. Crim. App. June 15, 2016)
FAILURE TO ALLEGE FACTS THAT DETERMINE THE GRADE OR PUNISHMENT ATTACHED TO THE OFFENSE
"It is fundamental that a felony theft conviction cannot be sustained unless the value of the item alleged in the indictment is proved to be over $50.00. Ballinger v. State, Tex.Cr.App., 481 S.W.2d 421; McKnight v. State, Tex.Cr.App., 387 S.W.2d 662; [PAGE 423] Price v. State, 165 Tex. Crim. 326, 308 S.W.2d 47 (1957)."
Martin v. State, 491 S.W.2d 421, 422-423 (Tex. Crim. App. 1973).
An indictment is fundamentally defective if the indictment fails to allege sufficient facts so that the range of punishment for the offense can be determined upon conviction for the offense.
Benoit v. State, 561 S.W.2d 810, 814-815 (Tex. Crim. App. 1977)
Benoit v. State, 561 S.W.2d 810, 814-815 (Tex. Crim. App. 1977). "Reliance was had in the Wilson decision upon the case of Standley v. State, 517 S.W.2d 538 (Tex.Cr.App.1975). In Standley an indictment failed to allege whether the offense of conversion by bailee was under the value of $ 50, or $ 50 and over. The effect of not alleging the value was to place the appellant in the position of not having notice as to whether he was being charged with a felony or misdemeanor. ¶ In Standley this court stated: "It is well established that the value of the property must be alleged if it affects penalty. 5 Branch's Ann.P.C., 2d ed., Sec. 2674, p. 120."In 30 Tex.Jur.2d, Indictment and Information, Sec. 38, p. 604, it is written: "'An indictment or information should allege every fact which may affect the degree or kind of punishment. A prior conviction must be alleged where a higher penalty is sought by reason of such conviction; the value of property must be stated where it is made the basis of punishment; and the injury done to the owner of property must be averred where the amount of injury is an essential element in the punishment.' (Emphasis Supplied) ¶ "In Hawkins v. State, 383 S.W.2d 416 (Tex.Cr.App.1964), this court said in a prosecution under Article 1429, Sec. 1, Vernon's Ann.P.C.: "'Without such an allegation the punishment cannot be determined.' See also Price v. State, 165 Tex.Cr.R. 326, 308 S.W.2d 47 (1957), and cases cited."It is clear from what has been said that the indictment in the instant case is fundamentally defective for the failure to allege value. The indictment omits a necessary element of the offense attempted to be alleged, does not show whether it was a misdemeanor or felony, and there is no way to determine from the face of the indictment if the District Court of Lippscomb (sic) County had jurisdiction of the offense sought to be alleged. We conclude that the judgment of the conviction based thereupon is void, rather than voidable." ¶ In Tave v. State, 546 S.W.2d 317 (Tex.Cr.App.1977), it was held that information charging the offense of driving while license suspended was fatally defective for failing to allege whether the operator's license was suspended under the provisions of Article 6701h (Safety Responsibility Act) or under Article 6687b, § 22(b), providing for suspension of an operator's license for numerous reasons. It was essential that the proper statute be pled because the statutes carried different penalties. ¶ A similar contention was raised by the defendant in Bailey v. State, 543 S.W.2d 653 (Tex.Cr.App.1976), where he asserted that the indictment charging him with possession of a controlled substance was defective for failure to state an offense over which the trial court had jurisdiction. His premise was based on the fact that the indictment did not state what penalty group the alleged controlled substance was listed under in § 4.04 of Article 4476-15, supra. ¶ The defendant in Bailey was charged with possession of lysergic acid diethylimide, which was only one penalty grade and one punishment. We observed that: ". . . Possession of any amount of this substance is a felony of the second degree. Our situation is distinguishable from those cases where the amount of the substance possessed by the accused determines whether the offense is a felony or a misdemeanor. . . ." (Emphasis supplied.) ¶ We noted, "(t)he trial court had jurisdiction over the offense charged in the indictment. The failure of the indictment to specify the penalty group (was) not a defect in (that) case." ¶ The present case, unlike Bailey, involves a controlled substance included in three separate penalty groups based upon the amount possessed. Further, the three separate punishments provided for delivery [PAGE 815] include that of both felony and misdemeanor. The failure to allege in the indictment the amount involved or penalty group n3 so as to reflect what punishment is involved, whether the offense is a misdemeanor or felony, or whether the District Court had jurisdiction renders the indictment fatally defective. Cf. Wilson v. State, supra; Mears v. State, supra; Standley v. State, supra; Bailey v. State, supra. Indeed, the trial court was probably even misled by the ambiguity of the possible offense alleged by the indictment for delivery of codeine when he admonished appellant the range of punishment was 2 to 10 years or that of a Penalty Group 3 delivery.
FOOTNOTES
n3 It is observed that in Morrison and Blackwell's New Texas Penal Code Forms (Texas Controlled Substances Act), § 4.03, it is recommended that in alleging unlawful delivery of a controlled substance that the penalty group in which the controlled substance alleged falls be pled in the indictment. If that had been done in the instant case the question raised would have been avoided.
The judgments are reversed and prosecutions ordered dismissed.
Benoit v. State, 561 S.W.2d 810, 814-815 (Tex. Crim. App. 1977)
SUMMARY OF THE STATUTES REGARDING PROBATION BY THE COURT OR JURY FOR A SEXUAL OFFENSE
REGULAR COURT PROBATION AFTER CONVICTION. Under Article 42A.054 C.C.P., the Court does not have the authority to grant regular probation after conviction for the following sexual offenses: (7) Section 21.11, Penal Code (Indecency with a Child); (8) Section 22.011, Penal Code (Sexual Assault); (9) Section 22.021, Penal Code (Aggravated Sexual Assault).
The court does not have the authority to grant regular probation for the offense of continuous sexual assault of a child under section 21.02 penal code because the range of punishment for the offense is for any term of not more than 99 years or less than 25 years. Article 42A.053(c) C.C.P., authority of the court to grant probation, states that the court cannot grant probation if the punishment assessed exceeds 10 years in prison. Article 42A.053(c) C.C.P. states, “(c) A defendant is not eligible for community supervision under this article if the defendant is sentenced to serve: (1) a term of imprisonment that exceeds 10 years; or (2) a term of confinement under Section 12.35 [state jail felony], Penal Code.”
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DEFERRED ADJUDICATION OF GUILT. Under Article 42A.102(b) C.C.P., the Court has the authority to grant a deferred adjudication for the following sexual offenses: Section 21.11 [Indecency with a child], Section 22.011 [Sexual Assault], or Section 22.021 [Aggravated Sexual Assault], Penal Code, regardless of the age of the victim if the judge makes a finding in open court that placing the defendant on deferred adjudication community supervision is in the best interest of the victim.
Under Article 42A.102(b)(2) C.C.P., the Court does not have the authority to grant a deferred adjudication of guilt for the offenses of Section 21.11 [Indecency with a child], Section 22.011 [Sexual Assault], or Section 22.021 [Aggravated Sexual Assault], if the defendant has been previously placed on probation for any of those sexual offense.
Under Article 42A.102(b)(2) C.C.P., the Court does not have the authority to grant a deferred adjudication of guilt for the offense of aggravated sexual assault under Section 22.021 (f) Penal Code if the victim was under 6 years of age or the defendant caused serious bodily injury to the victim or the victim was under 14 and the defendant attempted to cause the death of the victim or another.
Under Article 42A.102(b)(3) C.C.P., the Court does not have the authority to grant a deferred adjudication of guilt for the offense of continuous sexual abuse of a young child or children under Section 22.021 Penal Code.
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Article 42A.102(a) C.C.P. - Eligibility for Deferred Adjudication Community Supervision - Limitation of the Authority of the Court to Grant a Deferred Adjudication of Guilt for Listed Offenses
(a) Subject to Subsection (b), a judge may place on deferred adjudication community supervision a defendant charged with an offense under Section 21.11 [Indecency with a child], 22.011 [Sexual Assault], or 22.021 [Aggravated Sexual Assault], Penal Code, regardless of the age of the victim, or a defendant charged with a felony described by Article 42A.453(b) [see list of offenses stated below] only if the judge makes a finding in open court that placing the defendant on deferred adjudication community supervision is in the best interest of the victim. The failure of the judge to make a finding under this subsection is not grounds for the defendant to set aside the plea, deferred adjudication, or any subsequent conviction or sentence.
Article 42A.102 (b)(2) and (3) C.C.P. provide:
(b) In all other cases, the judge may grant deferred adjudication community supervision unless:
(2) the defendant:
(A) is charged with an offense under Section 21.11 [Indecency with a child], 22.011 [Sexual Assault], 22.021 [Aggravated Sexual Assault], Penal Code, 43.04 [Aggravated Promotion of Prostitution], or 43.05 [Compelling Prostitution] Penal Code, regardless of the age of the victim, or a felony described by Article 42A.453(b), other than a felony described by Subdivision (1)(A) or (3)(B) of this subsection; and
(B) has previously been placed on community supervision for an offense under Paragraph (A);
(3) the defendant is charged with an offense under:
(A) Section 21.02 [Continuous Sexual Abuse of a Young Child or Children], Penal Code; or
(B) Section 22.021 [Super Aggravated Sexual Assault of a Child], Penal Code, that is punishable under Subsection (f) of that section [the victim is under 6 years of age or the defendant caused serious bodily injury to the victim or the victim was under 14 and the defendant attempted to cause the death of the victim or another] or under Section 12.42(c)(3) or (4), Penal Code;
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JURY PROBATION. A defendant is not eligible for probation by a jury as provided by Article 42A.056 C.C.P. for the sexual offenses of sexual assault under Section 22.011 Penal Code or aggravated sexual assault under Section 22.021 if the victim of the offense was younger than 14 years of age at the time the offense was committed. A defendant is not eligible for continuous sexual abuse of a young child or children under Section 21.02 Penal Code because the minimum sentence is 25 years in prison. Article 42A.056(1) C.C.P. provides that a defendant is not eligible for jury probation if the defendant “(1) is sentenced to a term of imprisonment that exceeds 10 years.
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Article 42A.056 C.C.P. - Limitation on Jury Recommended Community Supervision effective September 1, 2019 provides:
A defendant is not eligible for community supervision under Article 42A.055 [by a jury] if the defendant:
(1) is sentenced to a term of imprisonment that exceeds 10 years;
(2) is convicted of a state jail felony for which suspension of the imposition of the sentence occurs automatically under Article 42A.551;
(3) is adjudged guilty of an offense under Section 19.02, Penal Code [murder];
(4) is convicted of an offense under Section 22.011 [sexual assault], or 22.021 [aggravated sexual assault], Penal Code, if the victim of the offense was younger than 14 years of age at the time the offense was committed;
(5) is convicted of an offense under Section 20.04 [aggravated kidnapping], Penal Code, if:
(A) the victim of the offense was younger than 14 years of age at the time the offense was committed; and
(B) the actor committed the offense with the intent to violate or abuse the victim sexually;
(6) is convicted of an offense under Section 20A.02 [trafficking of persons], 20A.03, 43.04, 43.05 [compelling prostitution], or 43.25 [sexual performance by a child], Penal Code; or
(7) is convicted of an offense for which punishment is increased under Section 481.134(c), (d), (e), or (f), Health and Safety Code, if it is shown that the defendant has been previously convicted of an offense for which punishment was increased under any of those subsections.
Tex. Code Crim. Proc. Art. 42A.056 September 1, 2019
ELIGIBILITY FOR PAROLE FOR SEXUAL OFFENSES
NO PAROLE. No parole for the offense of continuous sexual abuse of a young child or children under section 22.01 Penal Code. No parole for super aggravated sexual assault of a child under Section 22.021 Penal Code, “that is punishable under Subsection (f) of that section,” [the victim is under 6 years of age or the defendant caused serious bodily injury to the victim or the victim was under 14 and the defendant attempted to cause the death of the victim or another].
Section 508.145 Government Code - Eligibility for Release on Parole; Computation of Parole Eligibility Date - Effective January 1, 2017 and unchanged for 2019 provides:
(a) An inmate under sentence of death, serving a sentence of life imprisonment without parole, serving a sentence for an offense under Section 21.02 [Continuous Sexual Abuse of Young Child or Children], Penal Code, or serving a sentence for an offense under Section 22.021 [Super Aggravated Sexual Assault of a Child], Penal Code, that is punishable under Subsection (f) of that section is not eligible for release on parole.
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PAROLE AFTER SERVING ONE-HALF OF SENTENCE DAY FOR DAY. Section 508.145 Government Code provides that a defendant is not eligible for parole for an offense listed in Article 42A.054 C.C.P. until the defendant has served one-half of the defendant’s sentence day for day. A defendant is eligible for parole under Section 508.145 Government Code and Article 42A.054 C.C.P. for the sexual offense of indecency with a child under Section 21.11 Penal Code, for the sexual offense of sexual assault under Section 22.011 Pena Code, for the sexual offense of aggravated sexual assault under Section 22.021 Penal Code and for the sexual offense of sexual performance by a child under Section 43.25 Penal Code after the defendant has served one-half of the defendant’s sentence day for day.
Article 42A.054 C.C.P. lists the following sexual offenses:
(7) Section 21.11, Penal Code (Indecency with a Child);
(8) Section 22.011, Penal Code (Sexual Assault);
(9) Section 22.021, Penal Code (Aggravated Sexual Assault);
(15) Section 43.25, Penal Code (Sexual Performance by a Child); or
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Section 508.145(d) Government Code provides:
(d)
(1) This subsection applies only to an inmate who is serving a sentence for:
(A) an offense described by Article 42A.054(a), Code of Criminal Procedure, other than an offense under Section 19.03 [Capital Murder], Penal Code; [See Article 42A.054(a) C.C.P. below]
(B) an offense for which the judgment contains an affirmative finding under Article 42A.054(c) or (d), Code of Criminal Procedure [deadly weapon finding];
(C) an offense under Section 20A.03 [Continuous trafficking of Persons], Penal Code; or
(D) an offense under Section 71.02 [Engaging in Organized Criminal Activity] or 71.023 [Directing activities of Criminal Street gangs], Penal Code.
(2) An inmate described by Subdivision (1) is not eligible for release on parole until the inmate’s actual calendar time served, without consideration of good conduct time, equals one-half of the sentence or 30 calendar years, whichever is less, but in no event is the inmate eligible for release on parole in less than two calendar years.
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ARTICLE 42A.053 C.C.P. EFFECTIVE SEPTEMBER 1, 2019 - AUTHORITY OF THE COURT TO GRANT REGULAR COMMUNITY SUPERVISION - MAXIMUM AND MINIMUM PERIODS OF COMMUNITY SUPERVISION - LIMITATION ON JUDGE ORDERED COMMUNITY SUPERVISION - NO COMMUNITY SUPERVISION FOR A SENTENCE THAT EXCEEDS 10 YEARS
ARTICLE 42A.053 C.C.P. - AUTHORITY OF THE COURT TO GRANT REGULAR COMMUNITY SUPERVISION & MAXIMUM AND MINIMUM PERIODS OF COMMUNITY SUPERVISION EFFECTIVE SEPTEMBER 1, 2019
ARTICLE 42A.053 C.C.P. - JUDGE ORDERED COMMUNITY SUPERVISION
(a) A judge, in the best interest of justice, the public, and the defendant, after conviction or a plea of guilty or nolo contendere, may:
(1) suspend the imposition of the sentence and place the defendant on community supervision; or
(2) impose a fine applicable to the offense and place the defendant on community supervision.
(b) A judge may not deny community supervision to a defendant based solely on the defendant’s inability to speak, read, write, hear, or understand English.
(c) A defendant is not eligible for community supervision under this article if the defendant is sentenced to serve:
(1) a term of imprisonment that exceeds 10 years; or
(2) a term of confinement under Section 12.35 [state jail felony], Penal Code.
(d) In a felony case:
(1) the minimum period of community supervision is the same as the minimum term of imprisonment applicable to the offense; and
(2) the maximum period of community supervision is:
(A) 10 years, for a felony other than a third degree felony described by Paragraph (B); and
(B) five years, for any of the following third degree felonies:
(i) a third degree felony under Title 7, Penal Code [offenses against property]; and
(ii) a third degree felony under Chapter 481, Health and Safety Code.
(e) Notwithstanding Subsection (d), the minimum period of community supervision under this article for a felony described by Article 42A.453(b) is five years. [See list of Article 42A.453(b) offenses stated below].
(f) The maximum period of community supervision in a misdemeanor case is two years.
(g) Notwithstanding Subsection (d)(2) or (f), a judge may extend the maximum period of community supervision in the manner provided by Article 42A.753 or 42A.757.
Tex. Code Crim. Proc. Art. 42A.053
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ARTICLE 42A.453(b) C.C.P. LISTED OFFENSES REQUIRING MINIMUM 5 YEAR PERIOD OF COMMUNITY SUPERVISION AND REQUIRING CHILD SAFETY ZONE AS A CONDITION OF COMMUNITY SUPERVISION
ARTICLE 42A.453(b) C.C.P. LISTED OFFENSES
(b) This article applies to a defendant placed on community supervision for an offense under:
(1) Section 20.04(a)(4)[Aggravated Kidnapping with intent to inflict bodily injury or violate victim sexually], Penal Code, if the defendant committed the offense with the intent to violate or abuse the victim sexually;
(2) Section 20A.02 [Trafficking of Persons], Penal Code, if the defendant:
(A) trafficked the victim with the intent or knowledge that the victim would engage in sexual conduct, as defined by Section 43.25, Penal Code; or
(B) benefited from participating in a venture that involved a trafficked victim engaging in sexual conduct, as defined by Section 43.25, Penal Code;
(3) Section 21.08 [Indecent Exposure], 21.11 [Indecency with a Child, 22.011 [Sexual Assault], 22.021 [Aggravated Sexual Assault], or 25.02 [Prohibited Sexual Conduct], Penal Code;
(4) Section 30.02 [Burglary], Penal Code, punishable under Subsection (d) of that section, if the defendant committed the offense with the intent to commit a felony listed in Subdivision (1) or (3); or
(5) Section 43.05(a)(2) [Compelling Prostitution of a child younger than 18], 43.25 [Sexual Performance by a Child, or 43.26 [Possession or Promotion of Child Pornography], Penal Code.
Tex. Code Crim. Proc. Art. 42A.453
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ARTICLE 42A.453(b) C.C.P. - CLEAR LIST OF OFFENSES REQUIRING MINIMUM 5 YEAR PERIOD OF PROBATION
21.08 - Indecent Exposure
21.11 - Indecency with a Child
22.011 - Sexual Assault of a child or adult
22.021 - Aggravated Sexual Assault of a child or adult
25.02 - Prohibited Sexual Conduct (Incest)
43.05(a)(2) Compelling Prostitution of a child younger
than 18 years of age
43.25 - Sexual Performance by a Child
43.26 - Possession or Promotion of Child Pornography
20.04(a)(4) aggravated kidnapping if the defendant committed the offense with the intent to violate or abuse the victim sexually
30.02(d) first degree burglary if committed with intent to commit a particular offense stated
20A trafficking of persons under some circumstances stated
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ARTICLE 42A.054 C.C.P. OFFENSES - LIMITATION ON JUDGE ORDERED (REGULAR) COMMUNITY SUPERVISION FOR LISTED OFFENSES EFFECTIVE SEPTEMBER 1, 2019 - FORMER ARTICLE 42.12 SECTION 3g OFFENSES
ARTICLE 42A.054 C.C.P IS THE NEW ARTICLE 42.12 SECTION 3G.
ARTICLE 42A.054 C.C.P. AND FORMER ARTICLE 42.12 SECTION 3g C.C.P. (a)(1) C.C.P. - LIMITATION ON JUDGE ORDERED (REGULAR) COMMUNITY SUPERVISION FOR THE LISTED OFFENSES OR FOR AN OFFENSE IN WHICH THE JUDGEMENT STATES THAT THE DEFENDANT USED OR EXHIBITED A DEADLY WEAPON DURING THE COMMISSION OF THE OFFENSE OR THE DEFENDANT WAS A PARTY TO THE OFFENSE AND KNEW THAT A DEADLY WEAPON WOULD BE USED OR EXHIBITED.
NOTE: The court does not have the authority to grant regular probation for the offense of continuous sexual assault of a child under section 21.02 penal code because the range of punishment for the offense is for any term of not more than 99 years or less than 25 years. Article 42A.053(c) C.C.P., authority of the court to grant probation, states that the court cannot grant probation if the punishment assessed exceeds 10 years in prison. Article 42A.053(c) C.C.P. states, “(c) A defendant is not eligible for community supervision under this article if the defendant is sentenced to serve: (1) a term of imprisonment that exceeds 10 years; or (2) a term of confinement under Section 12.35 [state jail felony], Penal Code.”
LISTED ARTICLE 42A.054 C.C.P. OFFENSES AND FORMER ARTICLE 42.12 SECTION 3g C.C.P. (a)(1) C.C.P. OFFENSES ARE OFFENSES FOR WHICH THE DEFENDANT MUST SERVE ONE-HALF OF THE DEFENDANT’S SENTENCE DAY FOR DAY BEFORE THE DEFENDANT BECOMES ELIGIBLE FOR PAROLE.
Article 42A.054 C.C.P. - Limitation on Judge-Ordered Community Supervision effective September 1, 2019
(a) Article 42A.053 [authority of the court to grant regular probation] does not apply to a defendant adjudged guilty of an offense under:
(1) Section 15.03, Penal Code, [criminal solicitation] if the offense is punishable as a felony of the first degree;
(2) Section 19.02, Penal Code (Murder);
(3) Section 19.03, Penal Code (Capital Murder);
(4) Section 20.04, Penal Code (Aggravated Kidnapping);
(5) Section 20A.02, Penal Code (Trafficking of Persons);
(6) Section 20A.03, Penal Code (Continuous Trafficking of Persons);
(7) Section 21.11, Penal Code (Indecency with a Child);
(8) Section 22.011, Penal Code (Sexual Assault);
(9) Section 22.021, Penal Code (Aggravated Sexual Assault);
(10) Section 22.04(a)(1), Penal Code (Injury to a Child, Elderly Individual, or Disabled Individual), if:
(A) the offense is punishable as a felony of the first degree; and
(B) the victim of the offense is a child;
(11) Section 29.03, Penal Code (Aggravated Robbery);
(12) Section 30.02, Penal Code (Burglary), if:
(A) the offense is punishable under Subsection (d) of that section; and
(B) the actor committed the offense with the intent to commit a felony under Section 21.02 [continuous sexual abuse of young child or children], 21.11 [indecency with a child], 22.011 [sexual assault], 22.021 [aggravated sexual assault], or 25.02 [prohibited sexual conduct], Penal Code;
(13) Section 43.04 Penal Code (Aggravated Promotion of Prostitution);
(14) Section 43.05, Penal Code (Compelling Prostitution);
(15) Section 43.25, Penal Code (Sexual Performance by a Child); or
(16) Chapter 481, Health and Safety Code, for which punishment is increased under:
(A) Section 481.140 of that code (Use of Child in Commission of Offense); or
(B) Section 481.134(c), (d), (e), or (f) of that code (Drug-free Zones) if it is shown that the defendant has been previously convicted of an offense for which punishment was increased under any of those subsections.
(b) Article 42A.053 [court granted community supervision] does not apply to a defendant when it is shown that:
(1) a deadly weapon as defined by Section 1.07, Penal Code, was used or exhibited during the:
(A) commission of a felony offense; or
(B) immediate flight from the commission of a felony offense; and
(2) the defendant:
(A) used or exhibited the deadly weapon; or
(B) was a party to the offense and knew that a deadly weapon would be used or exhibited.
(c) On an affirmative finding regarding the use or exhibition of a deadly weapon as described by Subsection (b), the trial court shall enter the finding in the judgment of the court.
(d) On an affirmative finding that the deadly weapon under Subsection (c) was a firearm, the court shall enter that finding in its judgment.
(e) Notwithstanding Subsection (a), with respect to an offense committed by a defendant under Section 43.04 [aggravated promotion of prostitution] or 43.05 [compelling prostitution], Penal Code, a judge may place the defendant on community supervision as permitted by Article 42A.053 if the judge makes a finding that the defendant committed the offense solely as a victim of an offense under Section 20A.02 [trafficking of persons], 20A.03 [continuous trafficking of persons], 43.03 [promotion of prostitution], 43.04 [aggravated promotion of prostitution], or 43.05 [compelling prostitution], Penal Code.
Tex. Code Crim. Proc. Art. 42A.054 effective September 1, 2019
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ARTICLE 42A.102 C.C.P. AUTHORITY OF THE COURT TO GRANT A DEFERRED ADJUDICATION OF GUILT - THE COURT CANNOT GRANT DEFERRED ADJUDICATION FOR CERTAIN LISTED OFFENSES - EFFECTIVE SEPTEMBER 1, 2019
ARTICLE 42A.101 C.C.P. - AUTHORITY OF THE COURT TO GRANT DEFERRED ADJUDICATION COMMUNITY SUPERVISION - EFFECTIVE SEPTEMBER 1, 2019
Article 42A.101 C.C.P. - Placement on Deferred Adjudication Community Supervision - Authority of the Court to Place a Defendant on Deferred Adjudication Community Supervision
(a) Except as provided by Article 42A.102(b), if in the judge’s opinion the best interest of society and the defendant will be served, the judge may, after receiving a plea of guilty or nolo contendere, hearing the evidence, and finding that it substantiates the defendant’s guilt, defer further proceedings without entering an adjudication of guilt and place the defendant on deferred adjudication community supervision.
(b) After placing the defendant on deferred adjudication community supervision under Subsection (a), the judge shall inform the defendant orally or in writing of the possible consequences under Articles 42A.108 and 42A.110 of a violation of a condition of deferred adjudication community supervision. If the information is provided orally, the judge must record and maintain the judge’s statement to the defendant. The failure of a judge to inform a defendant of possible consequences under Articles 42A.108 and 42A.110 is not a ground for reversal unless the defendant shows that the defendant was harmed by the failure of the judge to provide the information.
Tex. Code Crim. Proc. Art. 42A.101 effective September 1, 2019
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ARTICLE 42A.102(b) C.C.P. - LIMITATION ON THE AUTHORITY OF THE COURT TO GRANT A DEFERRED ADJUDICATION OF GUILT - EFFECTIVE SEPTEMBER 1, 2019
Article 42A.102 C.C.P. - Eligibility for Deferred Adjudication Community Supervision - Limitation of the Authority of the Court to Grant a Deferred Adjudication of Guilt for Listed Offenses
(a) Subject to Subsection (b), a judge may place on deferred adjudication community supervision a defendant charged with an offense under Section 21.11 [Indecency with a child], 22.011 [Sexual Assault], or 22.021 [Aggravated Sexual Assault], Penal Code, regardless of the age of the victim, or a defendant charged with a felony described by Article 42A.453(b) [see list of offenses stated below] only if the judge makes a finding in open court that placing the defendant on deferred adjudication community supervision is in the best interest of the victim. The failure of the judge to make a finding under this subsection is not grounds for the defendant to set aside the plea, deferred adjudication, or any subsequent conviction or sentence.
(b) In all other cases, the judge may grant deferred adjudication community supervision unless:
(1) the defendant is charged with an offense:
(A) under Sections 20A.02 [Trafficking of Persons] or 20A.03 [Continuous Trafficking of Persons] or 49.045 [Driving While Intoxicated With Child Passenger], 49.05 [Flying While Intoxicated], 49.065 [Assembling or Operating an Amusement Ride While Intoxicated], 49.07 [Intoxication Assault], or 49.08 [Intoxication Manslaughter] Penal Code;
(B) under Section 49.04 [Driving While Intoxicated] or 49.06 [Boating While Intoxicated], Penal Code, and, at the time of the offense:
(i) the defendant held a commercial driver’s license or commercial learner’s permit; or
(ii) the defendant’s alcohol concentration, as defined by Section 49.01, was 0.15 or more:
(C) for which punishment may be increased under Section 49.09 Penal Code; or
(D) for which punishment may be increased under Section 481.134(c), (d), (e), or (f), Health and Safety Code, if it is shown that the defendant has been previously convicted of an offense for which punishment was increased under any one of those subsections;
(2) the defendant:
(A) is charged with an offense under Section 21.11 [Indecency with a child], 22.011 [Sexual Assault], 22.021 [Aggravated Sexual Assault], Penal Code, 43.04 [Aggravated Promotion of Prostitution], or 43.05 [Compelling Prostitution] Penal Code, regardless of the age of the victim, or a felony described by Article 42A.453(b), other than a felony described by Subdivision (1)(A) or (3)(B) of this subsection; and
(B) has previously been placed on community supervision for an offense under Paragraph (A);
(3) the defendant is charged with an offense under:
(A) Section 21.02 [Continuous Sexual Abuse of a Young Child or Children], Penal Code; or
(B) Section 22.021 [Super Aggravated Sexual Assault of a Child], Penal Code, that is punishable under Subsection (f) of that section [the victim is under 6 years of age or the defendant caused serious bodily injury to the victim or the victim was under 14 and the defendant attempted to cause the death of the victim or another] or under Section 12.42(c)(3) or (4), Penal Code;
(4) the defendant is charged with an offense under Section 19.02 [Murder], Penal Code, except that the judge may grant deferred adjudication community supervision on determining that the defendant did not cause the death of the deceased, did not intend to kill the deceased or another, and did not anticipate that a human life would be taken.
Tex. Code Crim. Proc. Art. 42A.102 effective September 1, 2019
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ARTICLE 42A.453(b) C.C.P. LISTED OFFENSES REQUIRING 5 YEAR MINIMUM PERIOD OF COMMUNITY SUPERVISION AND REQUIRING A CHILD SAFETY ZONE AS A CONDITION OF COMMUNITY SUPERVISION
ARTICLE 42A.453 C.C.P.
(a) In this article, “playground,” “premises,” “school,” “video arcade facility,” and “youth center” have the meanings assigned by Section 481.134, Health and Safety Code.
ARTICLE 42A.453(b) C.C.P. LISTED OFFENSES
(b) This article applies to a defendant placed on community supervision for an offense under:
(1) Section 20.04(a)(4)[Aggravated Kidnapping with intent to inflict bodily injury or violate victim sexually], Penal Code, if the defendant committed the offense with the intent to violate or abuse the victim sexually;
(2) Section 20A.02 [Trafficking of Persons], Penal Code, if the defendant:
(A) trafficked the victim with the intent or knowledge that the victim would engage in sexual conduct, as defined by Section 43.25, Penal Code; or
(B) benefited from participating in a venture that involved a trafficked victim engaging in sexual conduct, as defined by Section 43.25, Penal Code;
(3) Section 21.08 [Indecent Exposure], 21.11 [Indecency with a Child, 22.011 [Sexual Assault], 22.021 [Aggravated Sexual Assault], or 25.02 [Prohibited Sexual Conduct], Penal Code;
(4) Section 30.02 [Burglary], Penal Code, punishable under Subsection (d) of that section, if the defendant committed the offense with the intent to commit a felony listed in Subdivision (1) or (3); or
(5) Section 43.05(a)(2) [Compelling Prostitution of a child younger than 18], 43.25 [Sexual Performance by a Child, or 43.26 [Possession or Promotion of Child Pornography], Penal Code.
Tex. Code Crim. Proc. Art. 42A.453
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ARTICLE 42A.453(b) C.C.P. - CLEAR LIST OF OFFENSES REQUIRING 5 YEAR MINIMUM PERIOD OF COMMUNITY SUPERVISION
21.08 - Indecent Exposure
21.11 - Indecency with a Child
22.011 - Sexual Assault of a child or adult
22.021 - Aggravated Sexual Assault of a child or adult
25.02 - Prohibited Sexual Conduct (Incest)
43.05(a)(2) Compelling Prostitution of a child younger
than 18 years of age
43.25 - Sexual Performance by a Child
43.26 - Possession or Promotion of Child Pornography
20.04(a)(4) aggravated kidnapping if the defendant committed the offense with the intent to violate or abuse the victim sexually
30.02(d) first degree burglary if committed with intent to commit a particular offense stated
20A trafficking of persons under some circumstances stated
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ARTICLE 42A.055 & 42A.056 C.C.P. EFFECTIVE JANUARY 1, 2019 - ELIGIBILITY FOR JURY PROBATION AND NO JURY PROBATION FOR CERTAIN OFFENSES
ARTICLE 42A.055 C.C.P. – JURY RECOMMENDED COMMUNITY SUPERVISION EFFECTIVE JANUARY 1, 2017 AND SEPTEMBER 1, 2019
Article 42A.055 C.C.P. – Jury recommended Community Supervision effective January 1, 2017 and September 1, 2019
(a) A jury that imposes confinement as punishment for an offense may recommend to the judge that the judge suspend the imposition of the sentence and place the defendant on community supervision. A judge shall suspend the imposition of the sentence and place the defendant on community supervision if the jury makes that recommendation in the verdict.
(b) A defendant is eligible for community supervision under this article only if:
(1) before the trial begins, the defendant files a written sworn motion with the judge that the defendant has not previously been convicted of a felony in this or any other state; and
(2) the jury enters in the verdict a finding that the information contained in the defendant’s motion is true.
(c) If the jury recommends to the judge that the judge place the defendant on community supervision, the judge shall place the defendant on community supervision for any period permitted under Articles 42A.053(d) and (f), as appropriate.
(d) A judge may extend the maximum period of community supervision in the manner provided by Article 42A.753 or 42A.757.
Tex. Code Crim. Proc. Art. 42A.055
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ARTICLE 42A.056 C.C.P. - LIMITATION ON JURY RECOMMENDED COMMUNITY SUPERVISION EFFECTIVE SEPTEMBER 1, 2019 - FORMER ARTICLE 42.12 SECTION 4 C.C.P.
Article 42A.056 C.C.P. - Limitation on Jury Recommended Community Supervision effective September 1, 2019
A defendant is not eligible for community supervision under Article 42A.055 [by a jury] if the defendant:
(1) is sentenced to a term of imprisonment that exceeds 10 years;
(2) is convicted of a state jail felony for which suspension of the imposition of the sentence occurs automatically under Article 42A.551;
(3) is adjudged guilty of an offense under Section 19.02, Penal Code [murder];
(4) is convicted of an offense under Section 22.011 [sexual assault], or 22.021 [aggravated sexual assault], Penal Code, if the victim of the offense was younger than 14 years of age at the time the offense was committed;
(5) is convicted of an offense under Section 20.04 [aggravated kidnapping], Penal Code, if:
(A) the victim of the offense was younger than 14 years of age at the time the offense was committed; and
(B) the actor committed the offense with the intent to violate or abuse the victim sexually;
(6) is convicted of an offense under Section 20A.02 [trafficking of persons], 20A.03, 43.04, 43.05 [compelling prostitution], or 43.25 [sexual performance by a child], Penal Code; or
(7) is convicted of an offense for which punishment is increased under Section 481.134(c), (d), (e), or (f), Health and Safety Code, if it is shown that the defendant has been previously convicted of an offense for which punishment was increased under any of those subsections.
Tex. Code Crim. Proc. Art. 42A.056 September 1, 2019
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FORMER ARTICLE 42.12 SECTION 4 C.C.P. EFFECTIVE SEPTEMBER 1, 2007 - LIMITATION ON JURY RECOMMENDED PROBATION
Article 42.12 Section 4 C.C.P. effective September 1, 2007 provides that there is no probation by a jury for certain offenses. This change in the law applies only to offense committed on or after September 1, 2007.
Those offenses are:
(1) murder under 19.02 Penal Code.
(2) offenses under 3g(a)(1)(C), [indecency with a child] or 3g(a)(1)(E) [aggravated sexual assault] or 3g(a)(1)(H) [sexual assault] if the victim of the offense was younger than 14 years of age at the time the offense was committed. Those offenses are indecency with a child by contact under section 21.11(a)(1) Penal Code, aggravated sexual assault of a child under Section 22.021 Penal Code, and sexual assault of a child under Section 22.011 Penal Code.
(3) aggravated kidnapping of a child, Section 22.04 Penal Code, under 3g(a)(1)(D) C.C.P. if the victim of the offense was younger than 14 years of age at the time the offense was committed and the actor committed the offense with the intent to violate or abuse the victim sexually.
(4) the offense of injury to a child or elderly individual or disabled individual under 3g(a)(1)(I) C.C.P. if the offense is punishable as a felony of the first degree and the victim of the offense is a child.
The amendment to Article 42.12 Section 4 C.C.P. applies only to offense committed on or after September 1, 2007. Acts 2007, 80th Leg., ch. 593 (H.B. 8), §§ 1.05--1.07, effective September 1, 2007. "SECTION 4.01. (a) Except as provided by Subsections (b) and (c) of this section, the change in law made by this Act applies only to an offense committed on or after September 1, 2007. An offense committed before September 1, 2007, is covered by the law in effect when the offense was committed, and the former law is continued in effect for that purpose. For the purposes of this section, an offense was committed before September 1, 2007, if any element of the offense occurred before that date."
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ARTICLE 42.08 C.C.P. - AUTHORITY AND DISCRETION OF THE COURT TO STACK SENTENCES AND PROBATIONS
Article 42.08 Code of Criminal Procedure
(a) When the same defendant has been convicted in two or more cases, judgment and sentence shall be pronounced in each case in the same manner as if there had been but one conviction. Except as provided by Sections (b) and (c) of this article in the discretion of the Court, the judgment in the second and subsequent convictions may either be that the sentence imposed or suspended shall begin when the judgment and sentence imposed or suspended in the preceding conviction has ceased to operate, or that the sentence imposed or suspended shall run concurrently with the other case or cases, and sentence and execution shall be according; provided however, that the cumulative total of suspended sentences in felony cases shall not exceed 10 years, and the cumulative total of suspended sentences in misdemeanor cases shall not exceed the maximum period of confinement applicable to the misdemeanor offenses, though in no event more than three years, including extensions of periods of community supervision under Section 22, Article 42.12, of this code, if none of the offenses are offenses under Chapter 49, Penal Code, or four years, including extensions, if any of the offenses are offenses under Chapter 49, Penal Code.
(b) If a defendant is sentenced for an offense committed while the defendant was an inmate in the institutional division off the Texas Department of Criminal Justice and the defendant has not completed the sentence he was serving at the time of the offense, the judge shall order the sentence for the subsequent to commence immediately on completion of the sentence for the original offense.
(c) If a defendant has been convicted in two or more cases and the court suspends the imposition of the sentence in one of the cases, the court may not order a sentence of confinement to commence on the completion of a suspended sentence for an offense.
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SECTION 3.04 PENAL CODE: SEVERANCE
SECTION 3.04 PENAL CODE: SEVERANCE EFFECTIVE SEPTEMBER 1, 2005 AND SEPTEMBER 1, 2019
(a) Whenever two or more offenses have been consolidated or joined for trial under Section 3.02, the defendant shall have a right to a severance of the offenses.
(b) In the event of severance under this section, the provisions of Section do not apply, and the court in its discretion may order the sentences to run either concurrently or consecutively.
(c) The right to severance under this section does not apply to a prosecution for offenses described by Section 3.03(b)(2) unless the court determines that the defendant or the state would be unfairly prejudiced by a joinder of offenses, in which event the judge may order the offenses to be tried separately or may order other relief as justice requires.
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SECTION 3.03. PENAL CODE - SENTENCES FOR OFFENSES ARISING OUT OF SAME CRIMINAL EPISODE PROSECUTED IN A SINGLE CRIMINAL ACTION – STACKING – EFFECTIVE FOR SEPTEMBER 1, 2019
Section 3.01 Penal Code - Definition of Criminal Episode effective September 1, 2019
In this chapter, "criminal episode" means the commission of two or more offenses, regardless of whether the harm is directed toward or inflicted upon more than one person or item of property, under the following circumstances:
(1) the offenses are committed pursuant to the same transaction or pursuant to two or more transactions that are connected or constitute a common scheme or plan; or
(2) the offenses are the repeated commission of the same or similar offenses.
Section 3.03 Penal Code - Sentences for Offenses Arising out of the Same Criminal Episode effective for September 1, 2019
(a) When the accused is found guilty of more than one offense arising out of the same criminal episode prosecuted in a single criminal action, a sentence for each offense for which he has been found guilty shall be pronounced. Except as provided by Subsection (b), the sentences shall run concurrently.
(b) If the accused is found guilty of more than one offense arising out of the same criminal episode, the sentences may run concurrently or consecutively if each sentence is for a conviction of:
(1) an offense:
(A) under Section 49.07 [intoxication assault] or 49.08 [intoxication manslaughter] regardless of whether the accused is convicted of violations of the same section more than once or is convicted of violations of both sections; or
(B) for which a plea agreement was reached in a case in which the accused was charged with more than one offense listed in paragraph A [intoxication assault and intoxication manslaughter], regardless of whether the accused is charged with violation of the same section more than once or is charged with violation of both sections;
(2) an offense:
(A) under Section 33.021 [online solicitation of a minor] or an offense under Section 21.02 [continuous sexual abuse of young child or children], 21.11 [indecency with a child], 22.011 [sexual assault], 22.021 [aggravated sexual assault], 25.02 [prohibited sexual conduct (incest)], or 43.25 [sexual performance by a child] committed against a victim younger than 17 years of age at the time of the commission of the offense regardless of whether the accused is convicted of violations of the same section more than once or is convicted of violations of more than one section; or
(B) for which a plea agreement was reached in a case in which the accused was charged with more than one offense listed in Paragraph (A) committed against a victim younger than 17 years of age at the time of the commission of the offense regardless of whether the accused is charged with violations of the same section more than once or is charged with violations of more than one section.
(3) an offense:
(A) under Section 21.15 [invasive visual recording] or 43.26 [possession or promotion of child pornography], regardless of whether the accused is convicted of violations of the same section more than once or is convicted of violations of both sections; or
(B) for which a plea agreement was reached in a case in which the accused was charged with more than one offense listed in Paragraph (A), regardless of whether the accused is charged with violations of the same section more than once or is charged with violations of both sections;
(4) an offense for which the judgment in the case contains an affirmative finding under Article 42.0197, Code of Criminal Procedure;
(5) an offense:
(A) under Section 20A.02 [trafficking of persons], 20A.03 [continuous trafficking of persons], or 43.05 [compelling prostitution], regardless of whether the accused is convicted of violations of the same section more than once or is convicted of violations of more than one section; or
(B) for which a plea agreement was reached in a case in which the accused was charged with more than one offense listed in Paragraph (A), regardless of whether the accused is charged with violations of the same section more than once or is charged with violations of more than one section; or
(6) an offense:
(A) under Section 22.04(a)(1) or (2) [injury to a child, elderly or disabled individual] or Section 22.04(a-1)(1) or (2) that is punishable as a felony of the first degree, regardless of whether the accused is convicted of violations of the same section more than once or is convicted of violations of more than one section; or
(B) for which a plea agreement was reached in a case in which the accused was charged with more than one offense listed in Paragraph (A) and punishable as described by that paragraph, regardless of whether the accused is charged with violations of the same section more than once or is charged with violations of more than one section.
(b-1) Subsection (b)(4) does not apply to a defendant whose case was transferred to the court under Section 54.02, Family Code.
Tex. Penal Code § 3.03
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THE COURT MAY STACK SENTENCES FOR OFFENSES CONSOLIDATED FOR TRIAL AT THE REQUEST OF DEFENDANT
THE TRIAL COURT HAS THE AUTHORITY TO STACK DEFENDANT’S TWO SENTENCES FOR THE OFFENSE OF AGGRAVATED ASSAULT OF TWO DIFFERENT PERSONS COMMITTED IN THE SAME TRANSACTION THAT WERE CONSOLIDATED FOR TRIAL AT THE REQUEST OF THE DEFENDANT. Where a defendant was charged in two indictments with two separate and distinct offense of aggravated assault of two person arising out of one driving while intoxicated car accident transaction, and the cases were consolidated for trial at the request of the defendant, the court had the authority to run the sentences consecutively. "Appellant moved to consolidate his cases in one trial. The trial court granted his request. Subsequently, a jury convicted appellant of both assaults and assessed punishment for each offense at nine years confinement. The trial court noted in its judgment, and admonished the appellant in open court, the nine year sentence in cause no. 15,315-B would begin after the completion of the sentence in cause no. 15,313-B."
Phillips v. State, 787 S.W.2d 391, 393 (Tex. Crim. App. 1990)
THE TRIAL COURT HAS THE AUTHORITY TO STACK DEFENDANT’S TWO SENTENCES FOR THE OFFENSE OF AGGRAVATED ASSAULT OF TWO DIFFERENT PERSONS COMMITTED IN THE SAME TRANSACTION THAT WERE CONSOLIDATED FOR TRIAL AT THE REQUEST OF THE DEFENDANT. THE OFFENSE OF AGGRAVATED ASSAULT OR MANSLAUGHTER OF TWO PERSONS BY THE SAME ACT IN THE SAME TRANSACTION ARE TWO SEPARATE AND DISTINCT OFFENSES AND JEOPARDY DOES NOT BAR CONVICTION FOR BOTH OFFENSES, AND THE SENTENCES FOR THE OFFENSES MAY BE PROPERLY STACKED. “The record reflects appellant, while driving under the influence of alcohol, caused his automobile to cross the center stripe of the roadway and collide with an oncoming car. The driver and passenger of the car suffered serious injuries as a result of appellant's reckless behavior. Soon after the accident, appellant was indicted separately for the aggravated assault of each person he injured. Both indictments are virtually identical, the only difference being in cause no. 15,313-B appellant was charged with the aggravated assault of Blakely and in cause no. 15,315-B he was charged with the aggravated assault of McCarthy. ¶ Appellant moved to consolidate his cases in one trial. The trial court granted his request. Subsequently, a jury convicted appellant of both assaults and assessed punishment for each offense at nine years confinement. The trial court noted in its judgment, and admonished the appellant in open court, the nine year sentence in cause no. 15,315-B would begin after the completion of the sentence in cause no. 15,313-B. ¶ On direct appeal appellant complained he was denied protection provided by the Fifth Amendment to the United States Constitution and Article I, Section 14 of the Texas Constitution because he was punished twice for the same offense. The Court of Appeals agreed with appellant's claim and rejected the State's argument that this Court's opinion in Ex Parte Rathmell, 717 S.W.2d 33 (Tex.Crim.App. 1986), disposed of appellant's contention.” The Court of Criminal Appeals held that the trial court had the authority to stack the defendant’s sentences of nine year in prison for the offenses of aggravated assault. The Court of Criminal Appeals noted, “The Court of Appeals correctly held that appellant waived his double jeopardy claim as to the multiple prosecutions when his motion to consolidate was granted. Jeffers v. United States, 432 U.S. 137, 97 S.Ct. 2207, 53 L.Ed.2d 168 (1977). However, appellant did not waive his right to complain jeopardy barred the assessment of cumulative punishments for the alleged same offense. Jeffers, supra. It is to the merits of that claim we now turn.” The Court of Criminal Appeals state, “Appellant argues that he has been punished twice for a single offense. We disagree with appellant's assessment that only one offense occurred. This Court has recognized the protection against double jeopardy is inapplicable where separate and distinct offenses occur during the same transaction. Spradling, supra; Jones v. State, 514 S.W.2d 255 (Tex.Crim.App. 1974); Ward v. State, 148 Tex.Crim. 186, 185 S.W.2d 577 (Tex.Crim.App. 1945). Moreover, cumulative punishment, consistent with the double jeopardy clause, may be imposed where separate offenses occur in the same transaction, as long as each conviction requires proof of an additional element which the other does not. Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932); Accord Simpson v. United States, 435 U.S. 6, 98 S.Ct. 909, 55 L.Ed.2d 70 (1978); Brown v. Ohio, supra; United States v. Skalicky, 615 F.2d 1117 (5th Cir. 1980). Although Blockburger, supra, addressed a situation where the criminal conduct violated two separate statutory provisions, its rationale is instructive to those situations where multiple victims are injured in violation of a single statute. Spradling, supra. The Supreme Court noted in Blockburger, supra, the double jeopardy clause of the Fifth Amendment does not restrict a legislature from carving as many offenses as it chooses from one transaction so long as each offense requires "proof of a fact which the other does not." ¶ To convict appellant for the aggravated assault of Blakely clearly requires proof different than the evidence necessary to convict him for the aggravated assault of McCarthy. Even though, the proof of appellant's underlying unlawful act is the same, the physical injury of Blakely is mutually exclusive of the injury suffered by McCarthy. In other words, to convict for the assault of victim A the State need not prove the assault of victim B or vice versa. Rather, each offense requires proof of a fact which the other does not, i.e., the identity of each victim, thus meeting the test established in Blockburger, supra. Because the two offenses at bar are not the "same offense" under Blockburger, supra, cumulative punishment assessed against appellant does not implicate double jeopardy considerations. ¶ This Court has consistently held defendants, while operating a motor vehicle and committing an unlawful act, may be convicted for each person injured and/or murdered, in violation a single statute. Spradling, supra; Ex parte Rathmell, supra. The Court of Appeals concluded, in the present case, that appellant's unlawful act was the same offense under the "same evidence" test outlined in Blockburger, supra. For the reasons stated above we disagree with the appeals court and find the result of appellant's unlawful act constituted two separate and distinct offenses. ¶ In Ex parte Rathmell, supra, we addressed the issue of whether a defendant may be twice tried and convicted of involuntary manslaughter for more than one individual. V.T.C.A., Penal Code, § 19.05(a)(2). Deciding the second conviction did not violate double jeopardy, the Court focused its attention to the question of legislative intent. Judge McCormick writing for the majority, stated: ¶ It is clear from the language of these statutes that the Legislature has determined and intends that the offense of involuntary manslaughter [as defined in Section 19.05(a)(2)] is complete with the death of a single individual. Whether the other death in question occurred prior to, contemporaneously with, or subsequent to the death for which the appellant was first tried is of no consequence. Each individual death constitutes a complete and distinct offense (albeit under the terms of the one statute) and as such each death constituted a separate "allowable unit of prosecution." The Court of Criminal held, “Applying the same analysis as we did in Rathmell, supra, we conclude the Legislature, when it enacted Section 22.02, supra, a result oriented statute, intended the offense of assault to be complete with the injury of a single individual. The wording of Section 22.02, supra, is unambiguous, providing that "a person commits an offense if that person commits an assault against another." Thus, an actor commits a distinct offense against any person he injures and each of those injured constitutes a separate "allowable unit of prosecution." Ex parte Rathmell, supra, citing Sanabria, supra. The Double Jeopardy Clause has no application to a multiple victim offense when, as here, it is the legislative intent to prohibit serious bodily injury to persons and, accordingly, to enforce this intent by proscribing the appropriate punishment for each such offense. See Missouri v. Hunter, 459 U.S. 359, 103 S.Ct. 673, 74 L.Ed.2d 535 (1983). The State's ground for review is sustained.”
Phillips v. State, 787 S.W.2d 391, 393 (Tex. Crim. App. 1990)
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