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Wednesday, June 26, 2013

If They Don't Prove the Proper Enhancement Convictions, They Don't Get the Enhancement

The case today is Como v. State, No. 09-12-00479-CR, (Tex. App.--Beaumont, Jun. 26, 2013) (mem. op.) (no pet. h.) written by Justice Charles Kreger for a panel including Chief Justice Steve McKeithen and Justice David Gaultney. Como was indicted for aggravated robbery and pleaded to a lesser-included offense of robbery. His punishment was enhanced by a state jail felony- possession of a controlled substance. There were other felony convictions higher than a state jail felony in his indictment, but in his plea before the bench, none of them were proved. The judge gave him deferred adjudication. Later Como pleaded true to two violations of his probation. The judge revoked his probation, found him guilty of robbery and sentenced him to a whopping 85 years.
Como said that the judge had not properly admonished him when he gave him deferred ("I never would have agreed to deferred if I knew I could get 85 years!). The State even agreed that the admonishments had been insufficient. Still, that complaint came too late. You're supposed to complain about that when you get deferred, not when you're up to be adjudicated.
But you can't get 85 years on a mere robbery-- a second degree felony whose longest possible sentence is normally 20 years-- unless you get enhanced. A single state jail felony conviction isn't enough to enhance anything. So the sentence is too long for the proof, and the appeals court remanded the case back to the trial court for a new punishment hearing. Now this new punishment hearing will almost certainly have a very similar result, because everybody knows that there are enough high felonies to enhance Como's robbery conviction, so that he would liable for a sentence like 85 years, Everybody knows this because they were listed on his indictment, but the appeals court is not going to render a new judgment, almost certainly because evidence will have to be taken to prove the enhancements that were not proved the first time. And appeals courts are not in the business of taking evidence
Como v. State, No. 09-12-00479-CR, (Tex. App.--Beaumont, Jun. 26, 2013) (mem. op.) (no pet. h.).

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