A felony is a crime punishable by more than one year confinement. Unlike misdemeanors people accused of felony offenses have a constitutional right to counsel and have a right to have an attorney appointed if they cannot afford one. In Texas there are four basic levels of felony offenses, a first degree felony, second degree felony, third degree felony and state jail felony.
A state jail felony is a felony offense punishable by 180 days to 2 years confinement in a state jail facility and a fine of up to $10,000. Like most other felonies in Texas a state jail felony may be dismissed, probated, or reduced to a lesser charge. A defendant may also be placed on deferred adjudication or confined in a state jail. Terms of probation or deferred adjudication may be for up to five years. State jail felonies include unauthorized use of a motor vehicle, possession of a controlled substance under 1 gram, and credit card and debit card abuse cases. State jail felony possession of controlled substance under one gram cases are mandatory probation case if the accused has no prior felony convictions as an adult. However, there is no parole from a State Jail Facility and most state jail inmates have served their entire sentence. Today an inmate sentenced to a State Jail Facility may be released once they have served 80% of their sentence upon completion of certain programs.
Some possession of controlled substance cases which are felonies are mandatory probation cases which means that the defendant upon conviction may not be sent to a State Jail Facility. The most common two mandatory probation cases are possession of cocaine and possession of methamphetamine under one gram. These cases are mandatory probation only when the defendant has no prior felony convictions as an adult. A person on probation or deferred adjudication for a mandatory probation case may be revoked and sent to a State Jail Facility. It’s somewhat ironic that some state jail felonies are mandatory probation when no less serious class A and class B misdemeanors are.
However, punishments for mandatory probation cases can include lengthy probations and lengthy terms of confinement. Probations can be between two and five years and confinement in either a county jail or a state jail as a condition of probation can be up to 180 days. This means that a person can be given 180 days confinement and then serve 4 ½ years of probation after the confinement has ended on a mandatory probation case.
Third degree felonies are punishable from 2 to 10 years confinement and up to a $10,000 fine. Some common third degree felonies are possession of a controlled substance between 1 and 4 grams, DWI 3rd, Assault Family Violence 2nd, evading arrest, assault of a public servant, deadly conduct, possession of child pornography, and indecency with a child by exposure. Although third degree felonies have longer punishment ranges than state jail felonies they often result in more lenient punishments because a person who is confined for a third degree felony will usually be up for their first parole hearing when 1/8th of their sentence is served.
Second degree felonies are punishable from 2 to 20 years confinement and up to a $10,000 fine. Second degree felonies and higher are include the types of activities that have historically been considered serious crimes. These crimes include burglary, robbery, sexual assault, arson, aggravated assault, and 2nd degree murder, indecency with a child by contact, possession of 1-4 grams of a controlled substance with intent to deliver, and possession of a controlled substance of 4-200 grams. A person convicted with a second degree felony is more likely to receive a sentence of confinement than a person convicted of a third degree felony.
First degree felonies are punishable by confinement from 5-99 years or life in prison. However, probation is available for all first degree felonies except murder. Although first degree felonies are the highest level of felonies which are common in Texas all first degree felonies are not alike. First degree felonies include murder, sexual assault, aggravated assault of a public servant, theft of over $300,000, possession with intent to deliver over 4 grams of a controlled substance, or possession of over 200 grams of a controlled substance.
The two most important distinctions involving first degree felonies involve the application of the Texas Parole Law, and sex offender registration. The Texas Parole Law requires defendant convicted of aggravated offenses to serve at least half of their sentence, and offenders convicted of non-aggravated offenses may serve as little as 1/8th of their sentence before becoming eligible for parole. The list of aggravated offenses is found in the Texas Penal Code in section 42.12 (3) (g). This list includes, murder, aggravated robbery, all first degree felony sex offenses, aggravated assault with a deadly weapon, and first degree injury to a child or injury to an elderly individual. A case that is traditionally non-aggravated such as deadly conduct, which is a third degree felony, may be aggravated if the Court makes a weapon finding.
Sex offender registration is required for upon conviction for most sex offenses and is typically for life. The registration requirement applies whether or not a person is confined, placed on probation, or placed on deferred adjudication. The severe restrictions for sex offenders typically only apply when they are on probation or parole. When a person required to register as a sex offender is not on probation or parole then their only restriction is typically that they must register periodically. Defense attorneys must make every effort to prevent their clients from registering as a sex offender.
The good news is that first degree felonies are often easier to defend than more minor felonies because they often arise out of situations involving several people. Where several people are present, and/or involved in a situation giving rise to a criminal offense it is often difficult for the State to determine who is criminally responsible. Further, the criminal history of the defendant, witnesses, and alleged victim are often similar.
Texas has a version of the “three strikes and you’re out,” law whereby defendants with prior convictions face more sever punishments. The Texas repeat offender statute raises the punishment for a felony offense by one level and the habitual offender statute provides that an offender who has two prior felony convictions is subject to a minimum of 25 years and a maximum of life for some offenses. The good news is that the statutes have limited applicability. Priors count under these statues only if the defendant was sentenced to prison for the prior offenses and the habitual statute requires that the offenses must be sequential. Furthermore the offenses must be TDCJ offenses meaning convictions for 1st, 2nd, or 3rd degree felonies. Confinement in state jail on one occasion and in the Texas Department of Criminal Justice on another does not make a defendant a habitual offender.
Capital Offenses in Texas include felony murder which is murder committed in the course of another felony, murder of two or more people, murder of a public servant, and murder as retaliation for a public duty, murder of two or more people, and murder for hire. Felony murder is the most common and it includes home invasions and convenience store robberies where someone is killed in the course of the robbery. Often the prosecution will waive the death penalty and proceed with a “capital life” case. This means that if the accused is convicted he or she will serve the rest of their life confined without the possibility of parole. Often death penalty cases are reduced to regular murder by a plea bargain and the accused serves a term of years and are eventually eligible for parole.