Sentencing in Texas Criminal Defense: Stacked vs Concurrent Sentences

Article 42.12 Section 3(g), Texas Code of Criminal Procedure | 3G Offenses in Texas

A feature of the Texas Criminal Code that generates frequent questions is "3G offenses." The offenses are called 3G offenses because they were codified in section (3)(g) of Article 42.12, Code of Criminal Procedure. The code has now been updated and the 3(g) offenses are listed in Texas Code of Criminal Procedure, Section 42A.054. As a practical matter, 3G offenses are generally considered more serious crimes. Many of the crimes are "aggravated" offenses, meaning that some circumstance makes the offense worse than the base offense.

The 3G offenses are:

• Murder
• Capital Murder
• Murder in specific aggravating circumstances, such as murdering a victim under 10 years of age, murder while committing another felony, murdering more than one victim, murdering a law enforcement officer or fireman acting in their official capacity, murder for hire or retaliatory murder against a judge
• Indecency with a child by contact
• Aggravated kidnapping--Kidnapping with the intent to hold the victim for ransom or as a hostage or with the intent to sexually or physically abuse the victim
• Aggravated sexual assault--Sexual assault in specific aggravating circumstances, such as a victim under 14 years of age, an elderly or disabled victim, using "date rape" drugs such as rohypnol or ketamine, causing serious bodily harm to the victim or another person, or attempting to kill the victim or another person in the course of the crime
• Sexual Assault
• Aggravated robbery--Robbery plus threat of bodily harm, exhibiting a deadly weapon or putting an elderly or disabled individual in fear of injury or death • Sexual assault
• Injury to a child (if offense is first degree felony)
• Sexual performance by a child under 18 years of age
• Criminal solicitation for commission of a capital offense (if offense is first degree felony)
• Compelling prostitution by force, threat, or fraud or, if the victim is less than 18 years of age, by any means
• Trafficking of persons
• Drug offenses committed within 1,000 feet of a school, youth center, or playground or on a school bus when the defendant has previously been convicted of a similar offense
• Burglary with the intent to commit another felony
• Any felony where a deadly weapon is used or exhibited during the commission of the crime or during the flight from the crime--Deadly weapon includes any firearm or other device designed to cause death or serious bodily injury or capable of doing so.

The important considerations for individuals convicted of a 3G offense are the implications for their sentencing and prospects for parole. Although the laws have changed over the years as various offenses have been added to the list, the current provisions apply to any crime committed on or after September 1, 2007.

 

Probation or Deferred Adjudication on 3G Offenses

Under the Code of Criminal Procedure, a judge cannot accept a plea bargain for straight probation (community supervision) on a 3G offense. A judge can, however, accept a plea bargain for deferred adjudication as long as the underlying sentence for the offense is 10 years or less. Deferred adjudication is similar to probation, except the judge defers a finding of guilt for the specified time of probation, and if the defendant successfully completes the probation, the charge is ultimately dismissed and no final conviction is entered on the defendant's record.

If a defendant exercises his right to trial on a 3G offense and is found guilty, only the jury can give probation. When a jury gives probation at trial for a 3G offense, it is considered straight probation because a final conviction of guilt is entered on the defendant's record.

Parole on 3G Offenses

Conviction for a 3G crime also affects an individual's prospects for parole. For any other offense, parole eligibility occurs when time served plus time for good conduct equals the lesser of 15 years or one-fourth of the sentence. However, for a 3G offense, an individual is not eligible for parole until actual time served, with no allowance for good conduct credit, equals the lesser of 30 years or one-half of the original sentence. If the original sentence was for any period less than four years, the individual is not eligible for parole until actual time served of two years.

Free Consultation with an Experienced Fort Worth Criminal Defense Lawyer

If you have been charged with a 3G offense, you need to speak with a criminal defense attorney as soon as possible. Our attorneys have years of experience handling 3G offenses in Texas. Call our team today to set up a free consultation in our Fort Worth office. We will take the time to answer your questions and help you take the next steps to protect your liberty.

Let me make an admission...sometimes we lose at trial. There, I said it. We don't win every case. Sometimes the evidence is not in our favor. Sometimes the State is able to prove every element of the alleged offense. And we typically know that going into it.

It begs the question, "Why take the case to a jury trial if you suspect you are going to lose?" Here's why...because in many situations, going to trial is the only way to get a good result.

For instance, we had a client that was charged with a low level misdemeanor offense. The State was offering a plea bargain of 18 months probation, a $1,250 fine, and numerous classes in exchange for a guilty plea. We considered this offer to be too steep in relation to the alleged offense. Our client agreed. But the State was not willing to budge on the offer. So we set it for trial.

After a hard fought trial, the jury came back with a guilty verdict, which is what we suspected all along. Then we went to the judge for punishment. The State continued to recommend 18 months probation and a $1250 fine. The judge, however, awarded our client 2 days of labor detail and a $750 fine. Two short days later, the entire ordeal was but a fleeting memory for our client. No probation. No monthly reporting. No random drug tests. No classes.

We would have never received such a low punishment offer from the State. We also would have never received such a low sentence from the judge if we hadn't gone to trial and filled her in on the extenuating and mitigating circumstances of the case and our client.

In criminal defense, a moral victory is still a victory and sometimes you win by losing.

Under Texas Penal Code § 20.04(d), a kidnapper who voluntarily frees his victim in a safe place reduces his or her punishment level for aggravated kidnapping from a first-degree to a second-degree felony. In construing a "safe place," Texas courts consider seven factors:

1. the remoteness of the location,
2. the proximity of help,
3. the time of day,
4. the climate,
5. the condition of the victim,
6. the character of the location and surrounding neighborhood, and
7. the victim's familiarity with the location or neighborhood.

However, these factors are merely aids in defining what constitutes a "safe place," which is made on a case-by-case basis, bearing in mind the totality of the circumstances.

In Butcher v. State, the appellant kidnapped the nine year-old complainant at knife point while the complainant was walking to school. After putting the complainant in his car, the appellant drove her to his apartment, bound her hands, and put her in his closet. After eight hours, the appellant decided to release the complainant and dropped her back off at the site of the kidnapping.

The appellant argued that because he returned the complainant back to the site of abduction during day-time, he released her in a safe place since the complainant's mother allowed her "to walk to and from the school bus stop by herself before this incident, [the complainant] did not ask a passing mailman for help after she was released, and that [the complainant's] mother described [the complainant] as independent."

Applying the factors to Butcher, the Texas Criminal Court of Appeals held, nonetheless, that because the site of the kidnapping was "desolate," the complainant was released in the middle of the road, the appellant kept the complainant's cell phone, and the complainant's family did not have a home phone, the site of the kidnapping was not a safe place.

Moreover, the Texas Court of Criminal appeals distinguished Butcher with Storr v. State. In Storr, the appellant had kidnapped the complainant, but, similarly, released him back at the site of the abduction. The Court held that the area was a safe place because the complainant was college-aged, released at a post office during business hours near his university, and he had available transportation. However, the complainant in Butcher was nine years old, released in the middle of a desolate road, did not have available transportation or a phone, and returned home with nobody there, thus rendering the site of the kidnapping unsafe.

Jury Trial Sentencing in Texas

Every level of criminal offense in Texas has a corresponding punishment range for the jury to consider.  With the exception of enhancements or other minor differences, the Texas punishment ranges are as follows:

• Class B Misdemeanor = 0-180 days County Jail and $0-$2,000 fine
• Class A Misdemeanor = 0-365 days County Jail and $0-$4,000 fine
• State Jail Felony = 6 months - 2 years State Jail and $0-$10,000 fine
• 3rd Degree Felony = 2-10 years Prison and $0-$10,000 fine
• 2nd Degree Felony = 2-20 years Prison and $0-$10,000 fine
• 1st Degree Felony = 5-99 years Prison and $0-$10,000 fine

A jury verdict on sentencing should be within the punishment range to the particular offense.  But what happens if the jury deviates from the punishment range?

The Court of Appeals for the Seventh District (Amarillo) recently considered this scenario in Melton v. State. In Melton, the defendant was facing 2-20 years and up to a $10,000 fine if convicted.  The jury returned a sentence of 15 years in prison and a $15,000 fine.  Of course, the $15,000 fine was outside the punishment range.

The court of appeals wrestled with the option of remanding the case back to the trial court for a new sentencing hearing on BOTH the term of confinement and the fine or the fine only.  Ultimately, the court reasoned:

Article 37.10(b) contemplates that a jury can assess more than one type of punishment, to-wit: "punishment that is authorized by law for the offense and punishment that is not authorized by law for the offense . . . ." Because this statutory provision contemplates the situation where the period of confinement is authorized by law and the amount of the fine is not authorized by law, we conclude the Legislature intended to allow the reformation of a judgment as to the issue of the fine only.

Accordingly, the COA remanded the case back to the trial court for a new sentencing hearing on the fine only.  The term of confinement was sustained.

If a person convicted of aggravated rape is paroled by mistake, is that person entitled to street-time credit for the period between his release and the revocation of his release?

The 5th Circuit said NO in Rhodes v. Thaler.

Rhodes v. Thaler, 713 F.3d 264 (5th Cir. 2013): Mandell Rhodes, Jr. was convicted of aggravated rape in 1980. He was paroled in 2004, but returned to prison in 2006 after violating a condition of his release. Rhodes claimed that he was denied street-time credit for the two years that he was on parole which "could have been used to accelerate his automatic release to mandatory supervision."

According to Rhodes, Texas law required that when an inmate is released in error through no fault of his own, he is entitled to be credited with all earned street-time credit upon his return to prison. The denial of such credit, he argued, was a violation of due process.

Rhodes sought habeas relief in federal district court. The district court denied his petition. Through a Certificate of Appealability, the 5th Circuit was granted jurisdiction to decide the appeal and consider Rhodes's argument that his street time should have been restored because he was erroneously released to parole. According to the 5th Circuit, Rhodes's petition could only be granted if one of his constitutional rights had been violated.

In order to prevail under due process, Rhodes must have had a "liberty interest" in his claimed street-time credit. If he did not have a liberty interest in that street-time credit, he was due no more process than he received. In determining whether Rhodes had a liberty interest in the street-time credit he demanded, the 5th Circuit looked to Texas' law of releasees that was in effect when his release was revoked.

At the time Rhodes's parole was revoked, Texas' "street-time credit statute," Tex. Gov't Code §508.283, controlled. According to §508.283, "if the parole, mandatory supervision, or conditional pardon of a person described by §508.149(a) is revoked, the person may be required to serve the remaining portion of the sentence on which the person was released. The remaining portion is computed without credit for the time from the date of the person's release to the date of revocation." According to the Court of Criminal Appeals, §508.149(a) includes persons- like Rhodes- who have been convicted of aggravated rape.

Therefore, because Rhodes was not entitled to street-time credit for that period, he had no protected liberty interest that was subject to due-process protection. Rhodes was only entitled to federal habeas relief if he was deprived of street time credit without due process. Because Rhodes had no protected liberty interest in the street-time credit that he claimed to have accrued, his due-process right was not violated. Therefore, the district court's denial of Rhodes's habeas petition was affirmed.