This is a follow-up to my post yesterday on Misdemeanor Punishment Ranges in Texas. There are also several types of felonies in Texas and with them comes a variety of punishment ranges. This post will explain the possible punishment ranges. Community Supervision, Deferred Adjudication(Probation) and Parole may also be a possibility but will not be discussed in this post. This post will cover the basics as there are many other nuances.

Felonies are classified according to the relative seriousness of the offense into five categories:(1) capital felonies; (2) felonies of the first degree; (3) felonies of the second degree; (4) felonies of the third degree; and (5) state jail felonies. An offense designated a felony in Texas Penal Code Section 12 without specification as to category is a state jail felony.

An individual adjudged guilty of a capital felony in a case in which the state seeks the death penalty shall be punished by imprisonment in the Texas Department of Criminal Justice for life without parole or by death. An individual adjudged guilty of a capital felony in a case in which the state does not seek the death penalty shall be punished by imprisonment in the Texas Department of Criminal Justice for:

(1) life, if the individual committed the offense when younger than 18 years of age; or

(2) life without parole, if the individual committed the offense when 18 years of age or older.

(b) In a capital felony trial in which the state seeks the death penalty, prospective jurors shall be informed that a sentence of life imprisonment without parole or death is mandatory on conviction of a capital felony. In a capital felony trial in which the state does not seek the death penalty, prospective jurors shall be informed that the state is not seeking the death penalty and that:

(1) a sentence of life imprisonment is mandatory on conviction of the capital felony, if the individual committed the offense when younger than 18 years of age; or

(2) a sentence of life imprisonment without parole is mandatory on conviction of the capital felony, if the individual committed the offense when 18 years of age or older.

An individual adjudged guilty of a felony of the first degree 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 5 years. In addition to imprisonment, an individual adjudged guilty of a felony of the first degree may be punished by a fine not to exceed $10,000.

An individual adjudged guilty of a felony of the second degree shall be punished by imprisonment in the Texas Department of Criminal Justice for any term of not more than 20 years or less than 2 years. In addition to imprisonment, an individual adjudged guilty of a felony of the second degree may be punished by a fine not to exceed $10,000.

An individual adjudged guilty of a felony of the third degree shall be punished by imprisonment in the Texas Department of Criminal Justice for any term of not more than 10 years or less than 2 years. In addition to imprisonment, an individual adjudged guilty of a felony of the third degree may be punished by a fine not to exceed $10,000.

An individual adjudged guilty of a state jail felony shall be punished by confinement in a state jail for any term of not more than two years or less than 180 days. In addition to confinement, an individual adjudged guilty of a state jail felony may be punished by a fine not to exceed $10,000.

An individual adjudged guilty of a state jail felony shall be punished for a third degree felony (see punishment range above) if it is shown on the trial of the offense that:

(1) a deadly weapon as defined by Texas Penal Code Section 1.07 was used or exhibited during the commission of the offense or during immediate flight following the commission of the offense, and that the individual used or exhibited the deadly weapon or was a party to the offense and knew that a deadly weapon would be used or exhibited; or

(2) the individual has previously been finally convicted of any felony:

(A) under Section 20A.03 (continuous trafficking of persons) or 21.02 (continuous sexual abuse of a young child or children) or listed in Article 42A.054(a), Code of Criminal Procedure (click the link to see the list of included offenses); or

(B) for which the judgment contains an affirmative finding under Article 42A.054(c) or (d) (a deadly weapon finding), Code of Criminal Procedure.

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 punishable under Section 12.35(a), on conviction the defendant shall be punished for a felony of the third degree (see punishment range above).

(b) 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 other than a state jail felony punishable under Section 12.35(a), 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 felony of the second degree (see punishment range above).

(c) If it is shown on the trial of a state jail felony for which punishment may be enhanced under Section 12.35(c) that the defendant has previously been finally convicted of a felony other than a state jail felony punishable under Section 12.35(a), on conviction the defendant shall be punished for a felony of the second degree (see punishment range above).

Except as provided by Subsection (c)(2), if it is shown on the trial of a felony of the third degree that the defendant has previously been finally convicted of a felony other than a state jail felony punishable under Section 12.35(a), on conviction the defendant shall be punished for a felony of the second degree.

(b) Except as provided by Subsection (c)(2) or (c)(4), if it is shown on the trial of a felony of the second degree that the defendant has previously been finally convicted of a felony other than a state jail felony punishable under Section 12.35(a), on conviction the defendant shall be punished for a felony of the first degree.

(c)(1) If it is shown on the trial of a felony of the first degree that the defendant has previously been finally convicted of a felony other than a state jail felony punishable under Section 12.35(a), 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 15 years. In addition to imprisonment, an individual may be punished by a fine not to exceed $10,000.

(2) Notwithstanding Subdivision (1), a defendant shall be punished by imprisonment in the Texas Department of Criminal Justice for life if:

(A) the defendant is convicted of an offense:

(i) under Section 20A.02(a)(7) or (8) (trafficking of persons), 21.11(a)(1) (indecency with a child), 22.021 (aggravated sexual assault), or 22.011(sexual assault), Penal Code;

(ii) under Section 20.04(a)(4) (aggravated kidnapping), Penal Code, if the defendant committed the offense with the intent to violate or abuse the victim sexually; or

(iii) under Section 30.02(Burglary), Penal Code, punishable under Subsection (d) of that section, if the defendant committed the offense with the intent to commit a felony described by Subparagraph (i) or (ii) or a felony under Section 21.11(Indecency with a child), Penal Code; and

(B) the defendant has been previously convicted of an offense:

(i) under Section 43.25 (Sexual Performance of a Child)or 43.26(possession or promotion of child pornography), Penal Code, or an offense under Section 43.23 (obscenity), Penal Code, punishable under Subsection (h) of that section;

(ii) under Section 20A.02(a)(7) or (8) (trafficking of persons), 21.02, 21.11, 22.011 (indecency with a child), 22.021(aggravated sexual assault), or 25.02 (prohibited sexual conduct), Penal Code;

(iii) under Section 20.04(a)(4)(aggravated kidnapping), Penal Code, if the defendant committed the offense with the intent to violate or abuse the victim sexually;

(iv) under Section 30.02 (burglary), Penal Code, punishable under Subsection (d) of that section, if the defendant committed the offense with the intent to commit a felony described by Subparagraph (ii) or (iii); or

(v) under the laws of another state containing elements that are substantially similar to the elements of an offense listed in Subparagraph (i), (ii), (iii), or (iv).

(3) Notwithstanding Subdivision (1) or (2), a defendant shall be punished for a capital felony if it is shown on the trial of an offense under Section 22.021 (aggravated sexual assault) otherwise punishable under Subsection (f) of that section that the defendant has previously been finally convicted of:

(A) an offense under Section 22.021 (aggravated sexual assault) that was committed against a victim described by Section 22.021(f)(1)(aggravated sexual assault) or was committed against a victim described by Section 22.021(f)(2) (aggravated sexual assault)and in a manner described by Section 22.021(a)(2)(A)(aggravated sexual assault); or

(B) an offense that was committed under the laws of another state that:

(i) contains elements that are substantially similar to the elements of an offense under Section 22.021(aggravated sexual assault); and

(ii) was committed against a victim described by Section 22.021(f)(1) (aggravated sexual assault) or was committed against a victim described by Section 22.021(f)(2) (aggravated sexual assault) and in a manner substantially similar to a manner described by Section 22.021(a)(2)(A) (aggravated sexual assault).

(4) Notwithstanding Subdivision (1) or (2), and except as provided by Subdivision (3) for the trial of an offense under Section 22.021 (aggravated sexual assault)as described by that subdivision, a defendant shall be punished by imprisonment in the Texas Department of Criminal Justice for life without parole if it is shown on the trial of an offense under Section 20A.03 (continuous trafficking of persons) or of a sexually violent offense, committed by the defendant on or after the defendant's 18th birthday, that the defendant has previously been finally convicted of:

(A) an offense under Section 20A.03(continuous trafficking of persons) or of a sexually violent offense; or

(B) an offense that was committed under the laws of another state and that contains elements that are substantially similar to the elements of an offense under Section 20A.03 (continuous trafficking of persons)or of a sexually violent offense.

(5) A previous conviction for a state jail felony punishable under Section 12.35(a) may not be used for enhancement purposes under Subdivision (2).

(d) Except as provided by Subsection (c)(2) or (c)(4), if it is shown on the trial 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 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.

(e) Was repealed by Acts 2011, 82nd Leg., R.S., Ch. 834, Sec. 6, eff. September 1, 2011.

(f) For the purposes of Subsections (a), (b), and (c)(1), an adjudication by a juvenile court under Section 54.03, Family Code, that a child engaged in delinquent conduct on or after January 1, 1996, constituting a felony offense for which the child is committed to the Texas Juvenile Justice Department under Section 54.04(d)(2), (d)(3), or (m), Family Code, or Section 54.05(f), Family Code, or to a post-adjudication secure correctional facility under Section 54.04011, Family Code, is a final felony conviction.

(g) For the purposes of Subsection (c)(2):

(1) a defendant has been previously convicted of an offense listed under Subsection (c)(2)(B) if the defendant was adjudged guilty of the offense or entered a plea of guilty or nolo contendere in return for a grant of deferred adjudication, regardless of whether the sentence for the offense was ever imposed or whether the sentence was probated and the defendant was subsequently discharged from community supervision; and

(2) a conviction under the laws of another state for an offense containing elements that are substantially similar to the elements of an offense listed under Subsection (c)(2)(B) is a conviction of an offense listed under Subsection (c)(2)(B).

(h) In this section, "sexually violent offense" means an offense:

(1) described by Article 62.001(6) (click the link for the definition of sexually violent offense), Code of Criminal Procedure; and

(2) for which an affirmative finding has been entered under Article 42.015(b) (dealing with the age of the victim) or 42A.105(a) (an affirmative finding that the victim was a child younger than fourteen years of age at the time of the offense), Code of Criminal Procedure, for an offense other than an offense under Section 21.02 (continuous sexual abuse of a young child or children) or 22.021(aggravated sexual assault).

A charge for continuous sexual abuse of a child or children is a felony of the first degree, punishable 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.

Texas Penal Code Section 12.44(a) says a court may punish a defendant who is convicted of a state jail felony by imposing the confinement permissible as punishment for a Class A misdemeanor if, after considering the gravity and circumstances of the felony committed and the history, character, and rehabilitative needs of the defendant, the court finds that such punishment would best serve the ends of justice. Notice, the conviction remains for a state jail felony, only the punishment range changes. Under Texas Penal Code 12.44(b) at the request of the prosecuting attorney, the court may authorize the prosecuting attorney to prosecute a state jail felony as a Class A misdemeanor.

Community Supervision, Deferred Adjudication Community Supervision, and Parole exceed the scope of this post and will be discussed in a later post.

My previous two posts have discussed the differences in DWI (Driving While Intoxicated) and DUI (Driving Under the Influence) in Texas.

A person accused of DWI (Driving While Intoxicated) in Texas can be punished in a variety of ways if convicted.

Normally, a conviction for DWI is a Class B Misdemeanor with a minimum term of confinement of 72 hours. The maximum term of confinement for a Class B Misdemeanor is 6 months in jail. There is also the possibility of a fine of up to $2,000.00.

There are several factors that can enhance the classification of a DWI (driving while intoxicated) offense and also the possible punishments one may face if charged with DWI (driving while intoxicated) in Texas.

If you have been previously convicted of DWI (Driving While Intoxicated) a second offense may be charged as a Class A Misdemeanor with a minimum term of confinement of 30 days and a maximum term of confinement of 1 year. Additionally, the possible fine that may be assessed doubles from that of a Class B Misdemeanor up to $4,000.00.

If it is shown on the trial of a DWI (Driving While Intoxicated) in Texas that at the time of the offense the person operating the motor vehicle had an open container of alcohol in the person's immediate possession, the offense is a Class B misdemeanor (or Class A Misdemeanor if you have been previously convicted of DWI), with a minimum term of confinement of six days or 30 days if you have been previously convicted of DWI. If it is shown on the trial of DWI (Driving While Intoxicated) case in Texas that an analysis of a specimen of the person's blood, breath, or urine showed an alcohol concentration level of 0.15 or more at the time the analysis was performed, the offense is a Class A misdemeanor with a maximum term of confinement of 1 year and a maximum fine of $4,000.00.

For example, if you are arrested for DWI with a Child Passenger in Texas, you will most likely be charged with a state jail felony. A state jail felony has a punishment range beginning at six months in state jail and ending at two years in state jail.

Additionally, you may be charged with a Third Degree Felony if at the time you are arrested for DWI (Driving While Intoxicated) you have been previously convicted of Intoxication Manslaughter, or an offense under the laws of another state if the offense contains elements that are substantially similar to the elements of Intoxication Manslaughter in Texas, or you have been previously convicted two times of any other offense relating to the operating of a motor vehicle while intoxicated, operating an aircraft while intoxicated, operating a watercraft while intoxicated, or operating or assembling an amusement ride while intoxicated. A Third Degree Felony has the possibility for punishment as follows: imprisonment in the Texas Department of Criminal Justice for any term of not more than 10 years or less than 2 years and in addition to imprisonment, an individual adjudged guilty of a felony of the third degree may be punished by a fine not to exceed $10,000.

There is also the possibility of community supervision (probation) for DWI (Driving While Intoxicated) in Texas. The terms, conditions, and possibilities for probation for DWI (Driving While Intoxicated) in Texas are complex and will be the subject of a future post.

Conroe Criminal Defense Blog

Annual Reading of the Declaration of Independence

Felony Punishment Ranges in Texas

DWI (Driving While Intoxicated) Punishment in Texas

Law Office of Joshua Zientek PLLC