How does the third strike law apply to a third felony conviction of possesion?

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How does the third strike law apply to a third felony conviction of possesion?

My husband already has 2 felony drug possessions. Served time for both, including an in jail rehab facility, and a revocation of probation for the one as well. How does the third strike law apply to this?

Asked on October 2, 2011 under Criminal Law, Texas

Answers:

B.H.F., Member, Texas State Bar / FreeAdvice Contributing Attorney

Answered 10 years ago | Contributor

How your husband’s priors can or will affect his current charge will depend on the level of his prior convictions, how they were served, and the level of his current conviction.  Texas has a version of the “three strikes” rule, or habitual offender, which results in an enhancement punishment range of 25-99 year or life.  To prove that your husband is a habitual offender, the State would have to show that he had two felonies that were a third degree or higher and that they were “in sequence.”  “In sequence” means that one came before the other.  In essence, the state has to show that your husband committed an offense—served time for that offense, then committed a new offense—served time for that offense, and then got out and committed this latest charge. If his two previous drug convictions ran concurrently, then he would not be subject to the three strike’s run, even though he may be subject to a lower enhancement range.  If the prior convictions were for state jail felonies, the lowest level of felonies in Texas, then they cannot be used to enhance a third degree or higher charge.  Conversely, if your husband’s current charge is a state jail felony, then two non-state jail felonies, in sequence, can be used to enhance him –but only to a second degree felony which is 2-20 years.  A number of variables can also affect punishment like if his new offense was committed in a drug free zone or if a weapon was present.  You should really take the time to at least consult with an attorney that specializes in criminal law to understand any other enhancements, the parole consequences for each, and whether there are any mitigating circumstances wherein the prosecutor may consider abandoning their use of the three strikes rule.


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