PD-0617-20 10/28/2020
“Whether the Court of Appeals erred in holding that aggravated state-jail felonies [Tex. Penal Code, Section 12.35(c)] are subject to further enhancement under the repeat and habitual-offender statute governing first, second, or third degree felonies [Tex. Penal Code 12.42(d)], rather than Section 12.425, Penalties for Repeat and Habitual Felony Offenders on Trial for State Jail Felony.”
Kahookele was charged with two counts of possession of a controlled substance, each of them a state-jail felony. The State gave notice of intent to treat each count as an aggravated state-jail felony under Penal Code section 12.35(c) based on a final murder conviction from 1990. The State gave further intent to punish Kahookele in each count as a habitual offender under Section 12.42(d) based on two prior sequential, final felony convictions. Kahookele moved to quash on multiple grounds, including that aggravated state-jail felonies may not be further enhanced except through (in this case) Section 12.425(c). His motion was granted.
The State appealed, and the court of appeals reversed. It held that Section 12.425(c) applies, by its own terms, when “the defendant has previously been finally convicted of a felony other than a state jail felony punishable under Section 12.35(a).” In this case, Kahookele was previously finally convicted of two felonies. In effect, it interpreted Section 12.425(c) to fill a gap between 12.35(c) and 12.42(d). It further held that the non-substantive changes to Section 12.42(d) did not alter the fact that it applies to aggravated state-jail felonies, i.e., “a felony offense other than a state jail felony punishable under Section 12.35(a).” TEX. PENAL CODE § 12.42(d); see Samaripas v. State, 454 S.W.3d 1, 7 n.4 (Tex. Crim. App. 2014).
Kahookele reurges his argument that the creation of Section 12.425 shows the legislative intent that it be the exclusive means of enhancing state-jail felonies, including the aggravated kind.
