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Can a Conviction Under Texas Three Strikes Law be Defended?

By: Mark Diaz June 2, 2022 no comments

Can a Conviction Under Texas Three Strikes Law be Defended?

In short, there are almost always defenses and strategies for fighting charges in Texas for your criminal case. The real question is what options are potentially available based upon the specific circumstances related to your case.

There is no law in Texas specifically known as the “Three Strikes Law.” However, people generally refer to this terminology when speaking about what Texas more commonly refers to as being 25 to life for enhancement/punishment purposes. For simplicity, we will refer to the law for the remainder of this blog as the “Texas three strikes law.” This certainly presents challenges if you have a criminal history since it takes into account prior felony convictions when setting punishment for a later case. As you can guess from the terminology, a previous felony on your criminal record will increase the potential penalties for later offenses. What you probably didn’t expect is the harsh effect of the enhancements when it comes to punishment, especially by the time you reach your third strike.

Of course, how you avoid this harsh punishment is you don’t get strike 1 or 2. However, once you have them, you cannot go back in time to change things once you’ve already been charged with a third felony. That being said, you can mount a solid, effective defense from the moment of your arrest to mitigate the damages going forward. You are at a disadvantage going up against a prosecutor alone, so rely on a Galveston County criminal defense lawyer for assistance with strategy. It may be possible to avoid a felony conviction or obtain another favorable outcome that minimizes the impact of the Texas three strikes law. An overview of the laws should help explain defense options.

How the Texas Three Strike Law Works

As mentioned, the statute takes into account all felony convictions in your criminal history when issuing punishment after a subsequent felony. It is useful to get a grasp of how state laws classify felonies so you can better understand the implications of prior convictions.

  • Capital felonies are the most serious offenses under all criminal laws, such as capital murder.
  • Human trafficking, aggravated kidnapping, and aggravated assault are examples of first-degree felonies.
  • Second-degree felony offenses include sexual assault, burglary, arson, and assaulting a police officer.
  • Assault by strangulation, continuous family violence, and evading arrest are classified as third-degree felonies.
  • Examples of state jail felonies, the least serious type of felony, include firearm theft and drunk driving with a child passenger.

First Strike: If you do not have any felony convictions in your past, the basic sentencing structure applies. A first-degree felony conviction punishment range is 5 to 99 years. The punishment for second and third-degree felonies is 2 to 20 years and 2 to 10 years, respectively. A state jail felony conviction could lead to 180 days to 2 years’ incarceration.

Second Strike: Your second conviction could be Strike 2, at which point the punishment range may increase. It’s important to note that while the conviction itself is a factor, the real test for whether it counts as a “strike” for enhancement purposes is whether you physically went to the penitentiary for the charge. So, if you get convicted of a third-degree felony and sentenced to 2 years in prison but end up doing all your time in county jail (never transferred to prison) then technically, that conviction does not count as a “strike” for enhancement purposes. It only counts when you physically go to prison to serve the time. If you have been to the pen on the first strike, for example, if you’re on your second strike, the punishment range becomes:

  • 25 to life if you are charged with a first-degree felony;
  • A first-degree felony, if you’re charged with a second-degree felony
  • A second-degree felony, if you’re charged with a third-degree felony;

Third Strike: The real teeth to the three-strikes law comes with the third felony conviction/pen trip, in which sentencing increases dramatically. For all but state jail felony prior convictions, you could face life imprisonment for 25 to 99 years in prison. If you have two higher-level felony conviction pen trips consecutively and are subsequently convicted of a state jail felony, you will be sentenced according to second-degree felony rules.

Other Important Facts About Texas Felony Convictions

With a basic understanding of the three-strikes law, you should also note some additional details:

  • When looking at the range of punishment in terms of years, keep in mind that a judge can order any length within the parameters when issuing a sentence. The lower figure is the mandatory minimum, so the court must order that penalty in the least. The judge can use discretion with ordering a sentence up to the maximum in the range, so many different aggravating and mitigating circumstances can affect the outcome.
  • The three-strikes law does not change the nature of the charges described above. If you were convicted of the second-degree felony of arson, the crime is not elevated to a first-degree felony because you were previously convicted. It is how the defendant is treated at sentencing after a second or third conviction/pen trip that is the key.

Types of Defenses in Criminal Cases

The details on whether a charge under Texas three strikes law can be defended vary because every case is different. There are certain general defenses that could apply to any criminal offense, along with specific defenses that could only be raised in certain cases. These options for fighting the charges may stem from constitutional, statutory, or administrative legal concepts.

In addition, the timing for various strategies is critical. Your Galveston County criminal defense lawyer will leverage all defenses at the most advantageous stages, such as:

1. Pretrial Defenses: You may have opportunities to defend the charges well before trial, and these issues typically involve challenges to the evidence. Examples of pretrial defenses include:

  • Unlawful search and seizure by police, which is a violation of your fourth amendment rights;
  • Unlawful stop.

Based upon the availability of these defenses, your attorney may file a motion to suppress information that should be excluded. The other option is a motion to compel evidence into the hands of the prosecutor. When the court rules in your favor in a pretrial motion, it may exclude relevant evidence the state needs in order to prosecute you for the case – meaning, the state may have no choice but to dismiss the case after that happens.

2. Defenses at Trial: There are additional options for defending felony charges once your trial date arrives, and the first relates to the government’s burden in a criminal case. The prosecution is required to prove guilt beyond a reasonable doubt with respect to each element of the offense. If you were successful with pretrial defenses and got evidence tossed, this may be an extremely difficult burden for the prosecutor to meet. Even an iota of doubt in the minds of the jury could lead to an acquittal.

There may also be “affirmative” defenses available in your trial. With this strategy, you essentially admit that a crime occurred, but that there are other reasons that justify the illegal behavior, and you should not be convicted. Options include:

  • Entrapment
  • Duress
  • Self-defense
  • Necessity
  • Insanity

With affirmative defenses, defenses, once you raise them, then YOU have the burden of proof. You must present evidence to support your position, and then the burden returns to the prosecution to show that the defense does not apply.

Other Options for Resolving Criminal Charges

A complete defense and dismissal are not practical in every case, so you should be aware of other strategies for avoiding the harsh implications of the three-strikes law. Again, if you were able to get evidence excluded, you may be in a position for one important alternative: Plea bargaining. The prosecutor’s case could suffer serious damage without key proof, so the government may be more willing to reach an agreement than risk a loss at trial. As this scenario pertains to the three-strikes law, the most effective strategy would be pleading a felony down to a misdemeanor.

Depending on your case, you might also consider:

  • Pretrial diversion, in which you plead guilty to the charges but they are dropped once you complete the terms of a program that is similar to probation.
  • Drug court, an option that focuses on treatment for substance abuse rather than incarceration for qualifying offenders.

Legal Help with Felonies and Texas Three Strikes Cases

The above descriptions constitute a massive amount of information to absorb. However, you can be sure that the prosecutor trying to convict you is knowledgeable about every single detail. You even the playing field by working with a Galveston County criminal defense lawyer who will develop a legal strategy to fight for you if you’re facing the harsh implications of the three strikes law. Getting legal help is critical for:

  • Assisting at arraignment, where you enter a plea and the court addresses bail;
  • Investigating and gathering evidence to support your defense option;
  • Handling pretrial motions and issues attempting to exclude evidence against you;
  • Representation at trial, including making arguments, presenting evidence, questioning witnesses, conducting cross-examination, and other essential defense tactics in representing you at trial.

Call Now to Speak to a Galveston County Criminal Defense Attorney

This information should convince you that a conviction under the Texas three strikes law can be defended, but success requires the right strategy. Fighting the first couple strikes is the most optimal position to be in because of the implications on your future, and there are many other opportunities to leverage throughout the process. But all is not lost if you’re on strike 3 and you need help.

For more information on how the Texas three strikes law and prior felony convictions impact a current criminal case, please contact criminal defense attorney Mark Diaz. Our team services clients in Greater Houston and throughout Galveston County, so we are prepared to assist. Please contact our firm at 409-515-6170 to schedule a free consultation with a Texas criminal defense lawyer today.

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