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[0:01] Welcome to in your defense Galveston and beyond.
[0:06] Welcome to the in your defense with Mark Diaz,
[0:09] a passionate criminal defense attorney
[0:11] with over 25 years of experience,
[0:14] defending the rights of Texans.
[0:16] I'm Lisa Mosbey and today,
[0:18] we're talking about how prior convictions
[0:20] affect a criminal case in Texas
[0:22] and why enhancements can change everything
[0:25] from the charge to the potential sentence.
[0:29] Welcome to the podcast, Mark.
[0:30] I'd like to thank for having me.
[0:31] You know, Mark, to start,
[0:33] let's define that word enhancements.
[0:35] Could you explain what enhancements
[0:37] are in Texas criminal cases?
[0:40] So the most common way that people think of an enhancement
[0:45] would be, for instance, a simple example is
[0:49] if you've already had a DWI and then you get another DWI,
[0:52] now you're charged with DWI second,
[0:55] so the punishment enhances.
[0:57] Get another one, now you're at felony level.
[1:01] Same thing with, for instance,
[1:03] like if you've been convicted of assault of a family member
[1:08] and then you get another charge in the future,
[1:10] it can be filed as a felony.
[1:13] Now what people don't think as much about is
[1:16] there can be certain enhancements for, for instance,
[1:19] using a weapon or having over a certain amount of drugs
[1:25] is gonna give you a minimum punishment level.
[1:28] So typically when we think of enhancements,
[1:33] we're talking about prior criminal history,
[1:35] but there are other things that can be an enhancement.
[1:38] And Mark, when a prosecutor is reviewing someone's record,
[1:42] what parts of that history tend to matter most?
[1:45] Any crimes of violence, prosecutors are gonna treat those
[1:52] as more serious offenses
[1:53] and then whatever the new case is,
[1:57] their offer is going to reflect what they think
[2:00] your history tells about you.
[2:02] And I know Texas has specific rules for repeat offenders.
[2:07] How do prior convictions change the range of punishment
[2:11] for a new charge?
[2:13] So the biggest is gonna be your third felony.
[2:18] That's gonna make your punishment range 25 to life.
[2:22] We call it the habitual offender statute
[2:24] and we deal with it all the time.
[2:26] People have two prior felony convictions,
[2:30] what we call two prior pen trips
[2:32] and now they pick up a third
[2:34] and so they're looking at 25 to life no matter what the charge is.
[2:38] And some offenses trigger enhancements automatically.
[2:42] Is that correct?
[2:44] Well, others depend on how the case is filed.
[2:48] What are some examples of situations
[2:50] where an enhancement is almost guaranteed?
[2:54] E-W-I, family violence, drugs,
[2:58] basically the most common things.
[3:01] But when you say automatically, don't forget
[3:06] an enhancement can also always be a negotiating tool.
[3:10] Can you explain?
[3:11] They may make an offer on the case
[3:14] and say
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we'll offer to abandon the enhancement
[3:17] and give you less punishment to avoid going to trial.
[3:21] Oh, interesting.
[3:22] Okay.
[3:23] And then a prior conviction doesn't always reflect
[3:26] the full story when you're preparing a defense.
[3:29] What parts of someone's past do you examine
[3:33] to understand how the state might have used it?
[3:36] So it's gonna be different
[3:39] because time is going to matter, right?
[3:42] When were these prior convictions?
[3:44] What were they for?
[3:46] Were they crimes of violence?
[3:50] Was it 10 years ago?
[3:52] Was it last year?
[3:53] So we have to look and try and get a picture
[3:56] because it could be a situation
[3:58] where someone went through something at a period
[4:00] in their life and that's how we can explain
[4:03] what happened during that brief period.
[4:05] Enhancements can create pressure to accept a plea.
[4:09] Maybe I'm just assuming here, but when reviewing a case,
[4:13] what details help show whether the enhancement
[4:17] truly fits the facts or if it's being applied to broadly?
[4:21] Okay.
[4:22] So to look at enhancements first, it's kind of complicated.
[4:28] We have to go find the original judgment
[4:31] and make sure that the state can prove the enhancement
[4:33] because it has happened, especially where cases were old
[4:38] or from other jurisdictions that we know a person has this
[4:43] on their record, but the state can't prove it.
[4:45] So we have to look at each potential enhancement, right?
[4:50] To make sure the state can prove it
[4:52] before we begin negotiations
[4:54] because if I do that, I'm telling the state
[4:57] how you can't prove this one, right?
[5:00] So that's going to change where we start at in negotiations.
[5:03] And you did mention the age you look back and discover
[5:07] when their last conviction was.
[5:11] For people who have old convictions,
[5:14] how does the age of a prior conviction affect its impact today?
[5:20] And do older cases matter less
[5:22] or can they still carry the same weight?
[5:25] So legally speaking, an old conviction
[5:29] can carry the same weight.
[5:31] However, it is something we take into consideration
[5:36] in negotiations.
[5:37] In other words, if my client has a prior,
[5:39] but it was 20 years ago, that's much different
[5:42] than if it was from last year.
[5:44] And so legally, they can carry the same weight
[5:48] practically that doesn't always happen.
[5:50] Okay, so that's the nuances, right?
[5:53] I mean, we think of it as a conviction as a conviction,
[5:55] but there are nuances to it.
[5:57] And I think that's what I was trying to get at
[5:58] was with that information.
[6:01] You know, sometimes a prior conviction from another state
[6:04] may appear in a Texas case.
[6:06] How do prosecutors decide whether
[6:08] and how do state conviction qualifies as an enhancement here?
[6:13] The easiest way to explain that is
[6:18] the prosecutor will look at the elements
[6:20] of the case in the other state
[6:23] and see if it fits the elements of the enhancement
[6:26] that they're trying to use.
[6:27] And this doesn't come up a lot.
[6:31] I have seen it sometimes in sexual offenses
[6:34] because different states have different classifications
[6:37] of sexual offenses.
[6:39] But, you know, a DWI in Louisiana
[6:43] is going to be the same as a DWI in Texas.
[6:46] Does that make sense?
[6:47] So as long as the elements of the crime
[6:51] are the same as what they're trying to prove here,
[6:53] it'll fly.
[6:54] I'm tracking with you.
[6:55] So Mark, looking ahead, why is it so important
[6:58] for someone with a record to understand enhancements
[7:02] early in the process?
[7:03] And how does that knowledge shape the overall strategy
[7:06] of the defense?
[7:08] It's an individual answer because believe it or not,
[7:15] I have clients that go to prison, come out, return
[7:21] to a life of crime and hire me again.
[7:24] And some people just decided that they don't care, right?
[7:31] On the other hand, if you're a first time offender,
[7:33] you really need to put a lot of thought
[7:36] and go over all this with your attorney
[7:39] because it could have an impact on your future, right?
[7:42] And so if there might be a way to avoid a conviction up front
[7:47] so that you don't have to worry about an enhancement
[7:49] in the future, that's a conversation that you would have with me.
[7:53] And Mark, you get to talk directly to your audience here
[7:56] through podcasting.
[7:57] What message do you want to leave with folks today
[7:59] about enhancements?
[8:01] Your prior record may affect the direction of our case,
[8:05] but it's an individual conversation that we're going to have
[8:08] and see how it may or may not affect you.
[8:11] Folks, thank you so much for joining us.
[8:13] That's it for today's episode of Defense on the Coast
[8:16] to learn more or to get help with a criminal charge
[8:19] involving enhancements in Galveston, Chambers, or Harris County,
[8:24] visit texascriminaljustice.com.
[8:28] And don't forget to like, share the show and leave a review
[8:31] so more Texans can get clear information
[8:34] what they need when they need it most.
[8:36] Thank you.
[8:37] Thanks again, Lisa.
[8:41] Thanks for watching.
[8:42] Be sure to hit that like and subscribe button
[8:45] and leave us a review in the comments.