recognizing that subsection 12.35(c) is itself an enhancement of 12.35(a) when the offense is “aggravated” by the use of a deadly weapon and is therefore eligible for further enhancement under section 12.42(d)
How later courts described this case
- recognizing that subsection 12.35(c) is itself an enhancement of 12.35(a) when the offense is “aggravated” by the use of a deadly weapon and is therefore eligible for further enhancement under section 12.42(d)
- “Under our approach to statutory interpretation, we look to the literal text of the statute for its meaning, and we ordinarily give effect to that plain meaning, unless application of the statute’s plain language would lead to absurd consequences that the Legislature could not possibly have intended, or if the plain language is ambiguous.”
- same, in the context of Tex. Penal Code §§ 12.35 and 12.42
- “In other words, double jeopardy protections are inapplicable to sentencing proceedings in a noncapital context.”
Written by the judges who cited it.
The opinion
KELLER, J.
delivered a concurring opinion.
I disagree with the Court’s conclusion that the habitual enhancement statute is unambiguous. Nevertheless, the statutory language, while ambiguous, does appear to favor appellee’s position. Because there are no extratextual factors clearly calling for a contrary interpretation, I agree with the Court that double enhancement under 12.42(d) is not permissible. 1
Texas Penal Code § 12.42 provides in relevant part:
(a)(1) 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, on conviction the defendant shall be punished for a third-degree felony.
(2) 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, and the second previous felony conviction is for an offense that occurred subsequent to the first previous conviction having become final, on conviction the defendant shall be punished for a second degree felony.
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(d) If it is shown on the tnal 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 he shall be punished for imprisonment in the institutional division of the Texas Department of Criminal Justice for life, or for any term of not more than 99 years or less than 25 years.
The State’s contention that an offense that can be enhanced under § 12.42(a)(1) or (2) is no longer “punishable under § 12.35(a)”- — and so can be enhanced under both § 12.42(a) and § 12.42(d) — is a possible interpretation of the statutory language but is not the most reasonable or likely interpretation. All relevant enhancement provisions in § 12.42 refer to the “trial of’ a felony offense that is punishable or not punishable under § 12.35(a). There is some incongruity in saying that a proceeding is the trial of a § 12.35(a) offense for some purposes but not for other purposes, especially when the provisions *813 involved operate at the same stage of trial and are found 'within the same statutory section. There is no indication in the statutory language that the Legislature intended to authorize the stacking of enhancements under § 12.42; rather, the language and structure of the statute suggests that the subsections are alternative enhancement provisions. The Legislature could have made clear a contrary intent with the addition of a single word to § 12.42(d), as follows:
If it is shown on the trial of a felony offense other than a state jail felony punishable only under Section 12.35(a) that the defendant has previously been finally convicted of two felony offenses ....
(Italicized language inserted). The addition of the word “only” to the statute would have made clear that other enhancements to a § 12.35(a) offense would have made the offense eligible under § 12.42(d).
With these comments, I join the Court’s opinion insofar as it holds that a state jail felony enhanced under § 12.42(a)(2) cannot be enhanced again under § 12.42(d).
. The Legislature has given some guidance as to the factors we may examine in construing the statute. We may consider, among other matters, the (1) object sought to be attained, (2) circumstances under which the statute was enacted, (3) legislative history, (4) common law or former statutory provisions, including laws on the same or similar subjects, (5) consequences of a particular construction, (6) administrative construction of the statute; and (7) title (caption), preamble, and emergency provision. Tex.Gov’t.Code, § 311.023; Brown v. State, 943 S.W.2d 35, 38 (Tex.Crim.App.1997). An examination of the above factors in the present case fails to yield any indication of the Legislature’s intent.