Collin County and Dallas Felony Criminal Defense Attorney
The sad reality is that criminal offenses often occur and with incredible frequency in our society. This is why there are laws governed making certain actions illegal if they are deemed committed by an individual. Often, the person may have been legally justified in doing what whatever allegation is said to have occurred, but one still can be tasked with being arrested and having to navigate through the criminal justice system. This is especially true in crimes such as assault, where a person may have committed the legal act of assault but may have a real and viable self-defense argument that could be asserted which would justify their actions.
Depending upon the nature of the charge and the facts alleged to have been committed and based on many different factors. These include such things as whether it is a state or federal criminal offense; whether a person has any prior criminal history (even if from a long time ago). Subsequent felony arrests usually will be enhanced to a higher level of offense, resulting in an increased range of punishment in court.
If you, or a loved one, has been charged with any crime in the State of Texas, and are perhaps wondering what different penalties may result if one is ultimately convicted of a criminal offense, please give our office a call so we can help explain how the overall system works. It is important for anyone to be apprised and to understand the differences associated with being arrest for a crime. In the event you are in this position, it is a good idea to understand the differences between charges classified as a felony vs. a misdemeanor criminal offense.
What is considered a felony criminal offense in Texas?
A felony criminal offense is deemed to be the most serious type of criminal charge for an individual in Texas (and in any state for that matter). While every case is different and unique, felony offenses usually arise when there is some alleged behavior that is deemed to be considered serious or dangerous. Often they are cases involving facts where threats are alleged to have been made to another person, and the person claims to be in fear that they will be hurt or are in danger for their physical safety. Very often felony offenses arise from incidents where it is alleged some form of violence or dangerous behavior was observed or exhibited. Sometimes, people get arrested for felony charges in Texas because a police officer may just believe they are a menace to society.
The greater in magnitude and severity of any criminal offense and the facts alleged to have been committed, the more likely it is that a person will be charged with a felony offense. All felony charges in Texas have greater potential ranges of punishments than for all misdemeanor offenses. Felony charges generally arise in situations when a person is seriously injured in some way as a result of a possible crime. They also commonly occur in situations where an individual has been caught doing something considered to egregious, such as possessing a dangerous form of an illegal narcotic, or an illegal weapon or firearm.
There is a very real distinction that should be noted between misdemeanors, and those charged with a felony criminal offense. Misdemeanor charges are ones that are deemed to be not quite as serious or dangerous. Felony offenses are crimes usually involving factors that our criminal justice system treats more strictly and with stricter consequences. This basic premise is to protect the general public from people who engage in more dangerous or illegal behavior, and also to ensure people receive proper punishment who have been deemed to have engaged in serious illegal conduct. This concept is rooted to hopefully serve as a deterred to discourage other people from doing the same. Felony crimes in Texas include five classifications with various categories with an associated range of punishment specific for each, with an increased range of punishment categorized for each crime given the severity of the offense:
State jail Felony Offenses- Article 12.32 of the Texas Penal Code
An individual convicted and adjudicated guilty of a state jail felony offense “shall be punished by confinement in a state jail facility for any term not to exceed more than two years or less than 180 days, and also may be punished with the imposition of a fine not to exceed $10,000.”
In Texas, state jail felony offenses are no doubt still deemed to be felony crimes, and a person will have to report as a felon for the rest of their life if convicted, but they are a bit unique, in some respect, when compared to other felony classifications, because they are treated and handled with different rules and procedure.
Examples of typical state jail felony offenses may include, for example, if the state proceeds to a trial on a case and seeks to obtain a conviction for a higher level of a crime with an increased range of punishment, but is not able to present sufficient evidence to meet the burden of proof of proving each element of the charged offense beyond a reasonable doubt, in some cases an individual may instead be found guilty of the lesser-included state jail felony offense (because it may lack an element that was lacking when the state attempted to prove their case).
Other examples would be certain types of theft crimes (depending on the value of the property or the amount alleged to have been stolen), unauthorized use of a motor vehicle, contempt of a child support order, burglary of a building, coercing a minor to join a gang under the threat of violence, credit card/debit card abuse, criminally negligent homicide, cruelty to animals, DWI with child passenger in the vehicle, evading arrest in a vehicle, forgery of a check, fraudulent use or possession of identifying information, certain types of white collar crimes such as fraud, improper photography or visual recording, possession of less than one gram of a controlled substance, such as cocaine.
It should be noted that a state jail felony offense is the lowest among all felony charges in terms of classification, and has accompanying special rules which apply to punishment and also with the timing of release from incarceration. These include specific rules relating to probation, the actual length of the sentence served if it one of confinement, the ability to be able to apply for the new state jail good time good participation credit (which can allow for an earlier release for many individuals).
Third-degree Felony Offenses: – Article 12.33 of the Texas Penal Code
An individual convicted and adjudicated guilty of a felony of the third degree “shall be punished by imprisonment in the Texas Department of Criminal Justice for any term of confinement of not more than 10 years or less than 2 years, an individual may be punished with the imposition of a fine not to exceed $10,000.”
Examples of a third-degree felony offense would be possession of certain amounts of illegal narcotics, deadly conduct while using a firearm, escape from felony custody, indecent exposure with a child, intoxication assault, unlawful possession of a firearm by a convicted felony (UPF), retaliation, stalking, DWI (a third offense or more), abandoning or endangering a child, assault on a public servant, assault on a disabled or elderly individual, assault in a domestic violence case where a person’s breathing passageway was impeded in some way, failure to register as a sex offender, tampering/altering evidence, etc.
Second-degree Felony Offenses: – Article 12.32 of the Texas Penal Code
An individual convicted and adjudicated guilty of a felony of the second degree “shall be punished by imprisonment in the Texas Department of Criminal Justice for any term of confinement of not more than 20 years or less than 2 years, an individual may be punished with the imposition of a fine not to exceed $10,000.”
Examples of a second-degree felony offense would be aggravated assault, arson, bribery, evading arrest in a vehicle (if a death of another occurs during the pursuit or attempt to evade), improper relationship between educator and student, indecency with a child by contact, intoxication manslaughter, manslaughter, online solicitation of a minor under fourteen years of age, robbery, sexual assault, certain trafficking offenses of persons, etc.
First-degree Felony Offenses – Article 12.31 of the Texas Penal Code
An individual convicted of a felony of the first degree “shall be punished by imprisonment in the Texas Department of Criminal Justice for life or any term of not more than 99 years or less than 5 years, in addition to imprisonment, an individual may be punished with the imposition of a fine not to exceed $10,000.”
Examples where an individual could be charged with a first-degree felony offense in Texas, are charges of sexual assault, especially if they involve children as the alleged victims. Other examples include an assortment of aggravated offenses, including charges of aggravated robbery, aggravated kidnapping, aggravated assault of public servant, and aggravated sexual assault. Other possible criminal offenses where one could be charged with a first-degree felony offense in Texas include attempted capital murder, arson of a habitation, burglary of a habitation with intent to commit a felony offense (such as sexual assault or burglary), causing serious bodily injury to child, senior citizen, or disabled person, murder (where the state does not allege it is a capital crime), solicitation of capital murder, trafficking of persons under the age of fourteen, etc.
Capital Felony Offenses – Article 12.31 of the Texas Penal Code
A capital felony offense in Texas is no doubt considered to be the highest form of punishment we have in our entire criminal justice system. A capital felony offense is the only type of criminal offense which is punishable by the death. Upon a conviction for a capital crime, the only possibilities that can result in sentencing are imposing either the death penalty or a sentence of life in prison without the possibility of parole. The most common example of a capital felony crime is murder. If convicted, obviously the consequences are the much more severe and devastating than any other possible charge in the entire criminal justice system.
An individual found guilty of a capital felony offense in Texas, but where the state DOES NOT seek the death penalty, can only receive punishment as a sentence of life imprisonment in the Texas Department of Criminal Justice without the possibility for parole. The only exception to this is if the individual is under 18 years of age when the offense was committed. In cases where the State is seeking to impose the death penalty, potential jurors are required to be informed and questioned about this during the voir dire process (which is jury selection). They have to fully understand what the only sentence will be if they are on the jury and the defendant is found ultimately convicted because it is relevant to know if the potential venireman may have a problem with imposing such harsh punishment on an individual.
This is a somewhat delicate process, but no less an important one, because the Judge will want all to understand what will happen if the person is found guilty, and must be fully confident that they will be able to properly impose the sentence required by law. Judges want to be very certain that any juror serving will not have an issue with being able to follow what is required by law in this situation, as awful as it may seem, in being able to impose either the death penalty, or instead sentence the defendant to a life sentence of confinement without the possibility of parole. In a capital murder case, this can only be done in sentencing if the jury believes special circumstances or mitigating factors exist which may warrant sparing the life of the Defendant.
If a juror has trouble grappling with the magnitude of being tasked with such an ominous task, this is a concern because it could potentially lead to them not being able to properly evaluate the facts in evidence during the guilt/innocence phase of the trial. If they are constantly worrying about how they will feel if the person is convicted, knowing that in doing only an incredibly harsh sentence will be the result. Many people find it uneasy and do not want to be involved in the process of condemning a man to death or taking away a person’s freedom for the rest of their life. This situation is a unique one and presents many challenges for the Defense Attorney during the jury selection process because it is imperative to do everything possible to find out which people may feel uncomfortable knowing that they may be tasked with ultimately deciding the ultimate fate of another human being.
Many people have problems and struggle during this selection process when they are informed the only possible scenarios which exist is if they find the person guilty is either one of the two harshest punishments we have in our entire criminal just system. The only two possible results that can be given is either death or the grim prospect of spending the rest of their life in prison while knowing they will never have the possibility of being paroled and someday being released again. Knowing how sentencing will automatically work if a conviction is ultimately rendered can skew how individuals think or perceive certain facts of a case.
As the Defense Attorney, you want to obviously try to have at least one juror who is opposed to the death penalty, but in the same fashion – many of those people are the ones who will honestly admit they do not feel right about being in a position to judge someone where a punishment that can result is so harsh. In the same fashion, in a capital felony trial where the state is NOT seeking the death penalty as punishment, prospective jurors shall be informed as such, but also will be informed that because the state is not seeking the death penalty, the only sentence that can be rendered is life confinement without the possibility of parole. In other words, it is an automatic life sentence. Many individuals are not comfortable with having to carry such a heavy burden such as this.
State Jail Diligent Participation Credit
It used to be the case where a term of confinement for a sentence to a term in a state jail facility had to be completely served in full, and there were no options for an early release. People charged and confined d for state jail felony offenses for many years were not eligible for release until they had met the entire requirement of serving “day-for-day.” Unlike terms of confinement imposed with misdemeanor criminal offenses, where most counties have some form of credit where a person gets “two for one” (in Dallas County people who are serving county jail time there actually get “3 for one”) meaning for every one day they serve, they get credit for additional days. The entirety of the sentence, therefore, usually is not carried out to full completion.
In 2011, however, Texas passed a law called the State Jail Diligent Participation Credit (House Bill 2649 in the 82nd Texas legislative session), whereby an individual convicted of a state jail felony offenses committed on or after September 1, 2011, may be eligible for time credit based on diligent participation in programs to get out faster. These programs do require certain things to be done, such as working in some capacity at the jail, spending their time of confinement in a productive manner by doing such things like working to advance their education, and/or by either completing required court-ordered treatment for any possible addictions. A person can also show their “diligent participation” by voluntarily attending and completing similar programs on their own initiative, which may help when they are eligible to be released early under this new provision of the law.
Diligent participation is defined under this law as “successful completion of an educational, vocational, or treatment program; progress toward successful completion of an educational, vocational, or treatment program that was interrupted by illness, injury, or another circumstance outside the control of the defendant; and active involvement in a work program.” The main caveat to being able to take advantage of this new law is to sufficiently demonstrate that the individual’s involvement and the time spent while incarcerated was actually diligent. Basically, it means an individual must be able to adequately demonstrate they did something productive or proactive during this time period and didn’t just waste their time and not have something to show for the time they spent while in custody.
Accordingly, this law requires if these conditions are met, TDCJ must report the number of actual days to the offender who is involved in diligent participation to the sentencing judge, no later than 30 days before they are set to complete 80% of whatever sentence was imposed. If a person is eligible and it was an offense committed on or after September 1, 2011, the person serving a sentence shall receive one day of “diligent participation for each day spent in custody” – even for time spent at a county jail before being transported to the state jail facility.
It does stipulate a exceptions where one may not receive this credit, including possible scenarios where people were found remanded and served some form of punishment as a disciplinary offense for things such as refusing to engage in some type of work, not attending any type of school or complete school or not completing assignments tasked; or by refusing to attend participation in required treatment programs. In addition, inmates who fight or get into altercations during their time in jail may not be awarded the credit. Likewise, Inmates who are made to serve in solitary confinement or a type of administrative segregation as punishment likely would be ineligible to receive credit under the program.
Possible enhancements always play a significant role for those charged with felony criminal offenses. If a person has a previous felony conviction (or multiple ones), the punishment range for each underlying offense increases (in some cases substantially). Potential punishments for any criminal offense is always greater depending on a person’s prior criminal history and how often they have been arrested or convicted for any crime. For example, if someone is charged with a state jail felony offense and has a prior felony conviction, it would increase the current charged offense to a 3rd-degree felony.
If a person is charged with a felony offense, other than a state jail felony charge, and the individual has two prior convictions for non-state jail felony offenses, the person could be classified what is termed as a “habitual offender” pursuant to Article 12.42(d) of the Texas Penal Code, which define the penalties for repeat and habitual felony offenders on trial for first, second, or third degree felony offense. Specifically, the penalty range increases for those enhanced under the “repeat habitual offender statute where if they are convicted of a non-state jail felony offense, the range of punishment that must be imposed is a minimum term of confinement of 25 and up to 99 years or life.
Article 12.42(d) of the Texas Penal Code, states in relevant part, how “if it is shown on the trial of a felony offense other than a state jail felony, 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.”
Texas sentencing laws can be quite convoluted and complex. If you need the assistance of a legal professional to help ascertain any questions relating to possible punishment ranges, or charges being enhanced to a higher level of an offense, please call The Ceder Law Firm to speak with an experienced and knowledgeable criminal defense attorney who can help explain the legal mechanisms which drive sentencing in Texas. If you, or a loved one, has been charged with a federal criminal offense, sentencing is even more complex and much more comprehensive and difficult to explain. Attorney Carl David Ceder is Board Certified in Criminal Law by the Texas Board of Legal Specialization. This means he has achieved a level not demonstrated by many other attorneys in Texas and has the requisite knowledge and experience to help one understand how anything related to sentencing works, regardless of how complicated it may seem.
Probation/Community Supervision/Deferred Adjudication
In many felony cases, even while noting the range of punishments of prison sentences when can be imposed for felony offenses, generally speaking, there is usually at least a possibility of a person being granted “community supervision” (or probation), or deferred adjudication, in lieu of serving a term of confinement in jail. In fact, this occurs in many felony cases. The only individuals who are restricted in a way, making it harder to be able to be able to achieve the goal of keeping one out of prison as the #1 objective, are individuals who may issues, such as having being convicted previously for any felony offense. The only way an individual charged with any felony offense in Texas can receive probation as a sentence, either after a trial or if the DA is not willing to agree to a plea bargain that does not include confinement as a sentence, are people who have a prior felony conviction, regardless of when it occurred or how much time has passed since the prior incident. A person in this regard CAN still POSSIBLY be granted probation from a Judge, just not from a Jury after being convicted at a trial.
Also, people charged with any offense termed to be 3(g) is precluded from being eligible to receive probation, community supervision, or deferred adjudication from a Judge, either through an open plea or after a jury trial, it must either be offered by the Assistant District Attorney handling the case, or it can be granted after a trial from a jury if a conviction results in the final disposition. Similarly, those charged with any felony offense of DWI (whether it is a DWI-3rd offense or a charge of State Jail DWI with Child Passenger) by law in Texas the citizen accused is not able to receive any form of deferred adjudication.
Contact Our Office
If you’ve been arrested or have reason to believe you will be charged with a state or federal crime and have questions about the potential punishment which may be imposed or sentencing which may result, call Dallas-Fort Worth Criminal Defense Attorney Carl David Ceder immediately at 214.702.CARL(2275) or at 469.2000.DWI(394). Attorney Carl David Ceder has experience working in all areas in the greater Dallas-Fort Worth Metroplex, including Dallas County, Collin County, Tarrant County, Denton County, & Rockwall County. You can also e-mail Carl directly, at [email protected]; or to the office for general inquiries at [email protected]