By
Robert O. Dawson
Bryant Smith Chair in Law
University of Texas School of Law

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Criminal court cannot enhance punishment with juvenile adjudication for state jail felony [Fortier v. State] (03-3-07).

On June 10, 2003, the Amarillo Court of Appeals held that a state jail felony juvenile adjudication cannot be used to enhance punishment under article 12.42 of the Penal Code.

03-3-07. Fortier v. State, ____ S.W.3d ____, No. 07-02-0139-CR, 2003 WL 21338949, 2003 Tex.App.Lexis ____ (Tex.App.-Amarillo 6/10/03) Texas Juvenile Law (5th Ed. 2000).

Facts: Pending before the court is the rather colorful motion by the State of Texas for rehearing. [FN2] Though numerous complaints are raised against the court's opinion of April 16, 2003, we mention several. [FN3] So too do we overrule the motion.

FN2. The colors red, white, blue, brown and yellow appear on its cover while the tone of its content is quite black.

FN3. The others do not merit comment.

The status of the case before us is as follows. Jody Lewis Fortier appealed from a final judgment adjudicating his guilt for the offense of burglary. We dismissed the cause for want of jurisdiction. Our reading of the issues presented indicated that they concerned the voluntariness of the original plea. And, because that topic was not raised via an appeal immediately after the initial plea hearing, authority prohibited us from considering them via appeal after appellant's guilt was adjudicated. Nix v. State, 65 S.W.3d 664 (Tex.Crim.App.2001); Manuel v. State, 994 S.W.2d 658 (Tex.Crim.App.1999). Thereafter, appellant moved for rehearing, asserting that the sentence levied after guilt was adjudicated was void. It was purportedly so because the trial court enhanced his punishment through the use of a prior conviction for a state jail felony. We ordered the State to respond to the motion, which it did. Its response, however, focused primarily upon the issue of jurisdiction to entertain the appeal and the authority of the trial court to initially grant appellant community supervision. Little to nothing was said about the legality of the sentence ultimately levied by the trial court after guilt was adjudicated. Upon considering the arguments of all counsel, we granted the motion for rehearing in part, reversed that portion of the judgment levying sentence and punishment, and remanded the cause for a new punishment hearing. [FN4] Upon our doing so, the State then moved for rehearing. It is that motion which we now consider.

FN4. We mistakenly stated in the opinion granting rehearing that we had previously "affirmed the trial court's judgment" when we actually dismissed the cause for want of jurisdiction.

Held: Motion for rehearing overruled; remanded for new penalty hearing.

Opinion Text: Ground Two

Next, the State asserts that an adjudication that a minor engaged in delinquent conduct constituting a felony (even though the felony was a state jail felony) may, in some circumstances, be used to enhance punishment. It further cites § 12.42(f) of the Texas Penal Code as support for its proposition. We disagree with the assertion.

According to § 12.42(f) of the Penal Code,

[f]or purposes of Subsections (a) (c) and (e), an adjudication by a juvenile court under Section 54.03, Family Code, that a child engaged in delinquent conduct constituting a felony offense for which the child is committed to the Texas Youth Commission under Section 54.04(d)(2), (d)(3), or (m), Family Code, or Section 54.05(f), Family Code, is a final felony conviction.

As can be seen from the statute, an adjudication that a youth engaged in felonious conduct resulting in his commitment to the Youth Commission is deemed a "final felony conviction." Yet, effort to consider the "final felony conviction" for enhancement purposes must be done in conjunction with the requirements of subsections (a) through (c) and (e) of § 12.42. Indeed, the legislature intended as much when it began § 12.42(f) with the phrase "[f]or purposes of Subsections (a) (c) and (e)." In other words, and regardless of the conduct for which the youth had been adjudicated under § 54.03 of the Family Code, consideration of the adjudication for enhancement purposes must still comport with various subsections of § 12.42, and, one of those subsections was and is that which prohibits the use of a state jail felony for purposes of an enhancement, i.e. § 12.42(e). [FN5]

FN5. Section 12.42(e) of the Penal Code states that a "previous conviction for a state jail felony punished under Section 12.35(a) may not be used for enhancement purposes under Subsection (b), (c), or (d)." Tex. Penal Code Ann. § 12.42(e) (Vernon 2003).

Interpreting the statute otherwise would lead to an end more onerous for youths than adults. If the State were correct, then in those situations where the accused was an adult when the state jail felony occurred, the latter could not be used for enhancement purposes. However, if the identical state jail felony were committed when the accused was a minor, then it could be used. That is a non sensical result. Weightman v. State, 975 S.W.2d 621, 623 24 (Tex.Crim.App.1998) (recognizing that the absurdity of the result is a factor to consider when interpreting a statute). We opt not to impute to the legislature an intent to punish children more harshly than adults.

Finally, the record discloses that the felonious conduct for which appellant was adjudicated a delinquent involved the unauthorized use of a motor vehicle. Statute categorizes that offense as a state jail felony. Tex. Penal Code Ann. 31.07(b) (Vernon 2003). Thus, § 12.42(e) of the Penal Code barred the trial court from using it to enhance appellant's punishment.
* * *
In sum, none of the State's contentions in its motion for rehearing have merit; so we overrule them. [FN7]

FN7. We also note that while a litigant should zealously urge its stance, it must not do so to the detriment of professionalism. See Metzger v. Sebek, 892 S.W.2d 20, 38 39 (Tex.App. Houston [1st Dist.] 1994, writ denied) (stating that lawyers not only have the responsibility to conduct themselves with respect for the tribunal and legal system but also must eschew behavior likely to invoke proper admonishment). This is no less true for those representing the State in a criminal prosecution. See State ex rel. Eidson v. Edwards, 793 S.W.2d 1, 6 7 (Tex.Crim.App.1990) (stating that prosecutors are bound by the Rules of Professional Responsibility). Additionally, motions for rehearing are opportunity to reveal or explain potential error to the court. Though no one writing style may best facilitate that effort, language which is caustic, condescending, sarcastic, petty, or like tone only detracts from it. So too does it evince disrespect for the tribunal and legal system. See TEX. DISCIPLINARY R. PROF'L CONDUCT, Preamble 4; TEX. LAWYERS CREED A Mandate for Professionalism, IV, § 1, 2, 3, 5, & 7 (Order of Adoption); TEX. STANDARDS FOR APPELLATE CONDUCT, The Court's Relationship with Counsel, § 1 & 7.

2003 Case Summaries     2002 Case Summaries     2001 Case Summaries     2000 Case Summaries     1999 Case Summaries