1. Judgments, Affirmative Findings, and Enhancements Ryan Henry Town of Hollywood Park City Attorney 210-227-3242 Ryan.henry@rampage-sa.com

2. Judgments: the proper foundation. The reason we go to court (criminal or civil) The reason we go to court (criminal or civil) A judgment is the written determination of guilt or liability A judgment is the written determination of guilt or liability Without a proper judgment there can be no guilt or penalty Without a proper judgment there can be no guilt or penalty It forms the foundation for imposing penalties and enforcing our law. It forms the foundation for imposing penalties and enforcing our law.

3. Without a Proper Judgment, the System Collapses

4. To help us understand we will use Defendant Donald Dingle He is a citizen of Poor Man’s Bluff, a general law City deep in the heart of Texas. Defendant Dingle likes to drive fast in the small Town and is not always careful.

5. Defendant Dingle was convicted by a jury of Failing to Maintain Financial Responsibility on July 1, 2007

6. Judge Learned Hand read the jury verdict and orally sentenced Dingle to pay $350 (the max) in open court

7. However, he never signed a order declaring Dingle convicted or specifying the fine Even if you are a court of record, announcing the verdict and fine in open court is not sufficient

8. Without a signed, written judgment, the fine cannot be collected Municipal Court Clerk cannot issue a collection letter. The Sheriff CANNOT collect the fine, seize any property, or arrest. The Mayor of Poor Man’s Bluff was very unhappy with Judge Hand. The 4 hour jury trial was a waste of time for the court and the six (6) jurors.

9. What is Necessary For a Judgment Two Judgment Provisions for Municipal Court Two Judgment Provisions for Municipal Court TCCP sec. 42.01 (general criminal judgment requirements) TCCP sec. 42.01 (general criminal judgment requirements) TCCP sec. 45.041 (fine and open court provision) TCCP sec. 45.041 (fine and open court provision)

10. TCCP sec. 42.01- A Valid Judgment MUST be in writing and signed by the Judge. Docket entries or pronouncements in open court are not enough. MUST be in writing and signed by the Judge. Docket entries or pronouncements in open court are not enough. Signatures by the clerk are not allowed. Signatures by the clerk are not allowed. It must be entered in the Court’s record It must be entered in the Court’s record It must contain a host of other information listed in the statute. It must contain a host of other information listed in the statute.

11. § 42.01 Continued 1. The title and number of the case; 1. The title and number of the case; 2. That the case was called and the parties appeared, naming the attorney for the state, the defendant, and the attorney for the defendant, or, where a defendant is not represented by counsel, that the defendant knowingly, intelligently, and voluntarily waived the right to representation by counsel; 2. That the case was called and the parties appeared, naming the attorney for the state, the defendant, and the attorney for the defendant, or, where a defendant is not represented by counsel, that the defendant knowingly, intelligently, and voluntarily waived the right to representation by counsel; 3. The plea or pleas of the defendant to the offense charged; 3. The plea or pleas of the defendant to the offense charged; 4. Whether the case was tried before a jury or a jury was waived; 4. Whether the case was tried before a jury or a jury was waived; 5. The submission of the evidence, if any; 5. The submission of the evidence, if any; 6. In cases tried before a jury that the jury was charged by the court; 6. In cases tried before a jury that the jury was charged by the court; 7. The verdict or verdicts of the jury or the finding or findings of the court; 7. The verdict or verdicts of the jury or the finding or findings of the court;

12. § 42.01 Continued 8. In the event of a conviction that the defendant is adjudged guilty of the offense as found by the verdict of the jury or the finding of the court, and that the defendant be punished in accordance with the jury's verdict or the court's finding as to the proper punishment; 8. In the event of a conviction that the defendant is adjudged guilty of the offense as found by the verdict of the jury or the finding of the court, and that the defendant be punished in accordance with the jury's verdict or the court's finding as to the proper punishment; 10. In the event of conviction where the imposition of sentence is suspended and the defendant is placed on community supervision, setting forth the punishment assessed, the length of community supervision, and the conditions of community supervision; 10. In the event of conviction where the imposition of sentence is suspended and the defendant is placed on community supervision, setting forth the punishment assessed, the length of community supervision, and the conditions of community supervision; 11. In the event of acquittal that the defendant be discharged; 11. In the event of acquittal that the defendant be discharged; 12. The county and court in which the case was tried and, if there was a change of venue in the case, the name of the county in which the prosecution was originated; 12. The county and court in which the case was tried and, if there was a change of venue in the case, the name of the county in which the prosecution was originated; 13. The offense or offenses for which the defendant was convicted; 13. The offense or offenses for which the defendant was convicted;

13. 14. The date of the offense or offenses and degree of offense for which the defendant was convicted; 14. The date of the offense or offenses and degree of offense for which the defendant was convicted; 15. The term of sentence; 15. The term of sentence; 16. The date judgment is entered; 16. The date judgment is entered; 17. The date sentence is imposed; 17. The date sentence is imposed; 20. The terms of any plea bargain; 20. The terms of any plea bargain; 21. Affirmative findings, if any 21. Affirmative findings, if any 22. The terms of any fee payment 22. The terms of any fee payment

14. TCCP § 45.041 The fine amount and terms of payment; The fine amount and terms of payment; The costs to the State (court costs); and The costs to the State (court costs); and All judgments, sentences, and final orders of the justice or judge shall be rendered in open court. All judgments, sentences, and final orders of the justice or judge shall be rendered in open court.

15. This may seem like a lot but it’s not really

16. Judgments also are used in subsequent cases Five months after his jury trial, Defendant Dingle ran a stop sign and struck the Mayor’s car. Five months after his jury trial, Defendant Dingle ran a stop sign and struck the Mayor’s car. Dingle still did not have insurance. Dingle still did not have insurance. The Mayor wanted the maximum fine. The Mayor wanted the maximum fine.

17. Tex. Transp. Code §601.191 If a person has been previously convicted of an offense under this section, an offense under this section is a misdemeanor punishable by a fine of not less than $350 or more than $1,000. If a person has been previously convicted of an offense under this section, an offense under this section is a misdemeanor punishable by a fine of not less than $350 or more than $1,000. However, for such an enhancement, the prosecutor must have a valid judgment of the first offense. However, for such an enhancement, the prosecutor must have a valid judgment of the first offense.

18. This time, Dingle is in front of Judge Margaret “Sledge” Hammer

19. Without a valid judgment, Judge Hammer cannot do her job Judge Hand’s error is not fair to her; Judge Hand’s error is not fair to her; Consistent disregard for the proper judicial process is contrary to judicial ethics; Consistent disregard for the proper judicial process is contrary to judicial ethics; Canon 1 – Upholding the Integrity and Independence of the Judiciary; Canon 1 – Upholding the Integrity and Independence of the Judiciary; Canon 3 – Performing the Duties of Judicial Office Impartially and Diligently. Canon 3 – Performing the Duties of Judicial Office Impartially and Diligently.

20. Enhancements Enhancement is a creature of statute, but is not defined by statute. Enhancement is a creature of statute, but is not defined by statute. Two types Two types Enhanced Punishment, Enhanced Punishment, Enhanced Crime. Enhanced Crime.

21. Enhanced Punishment Be aware of enhancements. Be aware of enhancements. Typically, it is the prosecutor’s job to inform the court and Defendant the State will seek an enhancement. Typically, it is the prosecutor’s job to inform the court and Defendant the State will seek an enhancement. “In the case of these enhanced offenses, the defendant is entitled to both notice that the enhancement is being sought and a factual determination of the prior conviction.” TMCEC Municipal Judge’s Book, citing Palmer v. State, 229 S.W.2d 174 (Tex. Crim. App. 1950) (sale o’ whisky in a dry county). “In the case of these enhanced offenses, the defendant is entitled to both notice that the enhancement is being sought and a factual determination of the prior conviction.” TMCEC Municipal Judge’s Book, citing Palmer v. State, 229 S.W.2d 174 (Tex. Crim. App. 1950) (sale o’ whisky in a dry county).

22. Some Enhancements Divest the Municipal Court of Jurisdiction Assault against an elderly or disabled victim (Penal Code §22.01(c)(1)) – If the victim was chosen because he or she was elderly or disabled, the punishment for simple assault is enhanced from Class C misdemeanor to Class A. Assault against an elderly or disabled victim (Penal Code §22.01(c)(1)) – If the victim was chosen because he or she was elderly or disabled, the punishment for simple assault is enhanced from Class C misdemeanor to Class A. Municipal Court does not have jurisdiction over a Class A misdemeanor and the case must be filed in District Court. (slight of hand from legislature) Municipal Court does not have jurisdiction over a Class A misdemeanor and the case must be filed in District Court. (slight of hand from legislature) This is an enhanced crime. This is an enhanced crime.

23. Types of Cases Enhancements May Appear Disorderly Conduct & Public Intoxication (Art 42.12, §15A and PC §12.43(c) and (d)(Habitual Misdemeanor)) – if the defendant has been previously convicted 3 or more times for any combination of disorderly conduct and public intoxication where the offenses were committed within the previous 24 months, the offense may be punished as a Class B misdemeanor. Disorderly Conduct & Public Intoxication (Art 42.12, §15A and PC §12.43(c) and (d)(Habitual Misdemeanor)) – if the defendant has been previously convicted 3 or more times for any combination of disorderly conduct and public intoxication where the offenses were committed within the previous 24 months, the offense may be punished as a Class B misdemeanor. Alcohol-related offenses and minors – Under Alcoholic Beverage Code §106.071. Alcohol-related offenses and minors – Under Alcoholic Beverage Code §106.071. Assault against an elderly or disabled victim (Penal Code §22.01(c)(1)). Assault against an elderly or disabled victim (Penal Code §22.01(c)(1)). Assault against a sports participant by a non-participant (Penal Code §22.01(c)(2)). Assault against a sports participant by a non-participant (Penal Code §22.01(c)(2)).

24. Enhancements Continued.... Insurance (Transportation Code §601.051 and §601.191). Insurance (Transportation Code §601.051 and §601.191). Disabled parking (Transportation Code §681.011 and §684.011). Disabled parking (Transportation Code §681.011 and §684.011). Overweight truck violations (Transportation Code §621.506 and 507). Overweight truck violations (Transportation Code §621.506 and 507). Motor Fuel Theft less than $50 (Transportation Code §521.349). Motor Fuel Theft less than $50 (Transportation Code §521.349). Failure to Attend School (Family Code §54.021(b)) – a subsequent offense actually constitutes violation of a court order (Code of Criminal Procedure Art 45.050; Education Code §25.094(d)), and the court can refer the offender to juvenile court or retain jurisdiction. Failure to Attend School (Family Code §54.021(b)) – a subsequent offense actually constitutes violation of a court order (Code of Criminal Procedure Art 45.050; Education Code §25.094(d)), and the court can refer the offender to juvenile court or retain jurisdiction.

25. Affirmative Findings Just as a Judge must ethically enter a proper and valid written judgment, the Judge must also determine if the judgment requires Affirmative Findings Just as a Judge must ethically enter a proper and valid written judgment, the Judge must also determine if the judgment requires Affirmative Findings Affirmative findings are those specific findings of the finder of fact (whether judge or jury) that support an enhanced punishment or other action by the court or by the state. Without the requisite affirmative finding, the action is not available to the court or the state. Affirmative findings are those specific findings of the finder of fact (whether judge or jury) that support an enhanced punishment or other action by the court or by the state. Without the requisite affirmative finding, the action is not available to the court or the state.

26. Motor Fuel Theft (Code of Criminal Procedure Art. 42.019 and Penal Code §31.03(e)(1), and Transportation Code §521.349). To support future enhancement, the judgment must contain affirmative findings that the person: 1) pumped the gas and 2) drove off without paying. In order to use the prior conviction for enhancement, the subsequent judgment requires an affirmative finding of a previous conviction for the same offense. Motor Fuel Theft (Code of Criminal Procedure Art. 42.019 and Penal Code §31.03(e)(1), and Transportation Code §521.349). To support future enhancement, the judgment must contain affirmative findings that the person: 1) pumped the gas and 2) drove off without paying. In order to use the prior conviction for enhancement, the subsequent judgment requires an affirmative finding of a previous conviction for the same offense. Family Violence (Code of Criminal Procedure Art. 42.01, §5 and Art 42.013). Family Violence (Code of Criminal Procedure Art. 42.01, §5 and Art 42.013). Bias or Prejudice (CCP Art. 42.01, §6 and Art. 42.014) (Pen.C. §12.47). Applies to simple assault under Penal Code §22.01(a) and requires one step enhancement of punishment if an affirmative finding is made “that the defendant intentionally selected the person against whom the offense was committed or intentionally selected property damaged or affected as a result of the offense because of the defendant's bias or prejudice against a group identified by race, color, disability, religion, national origin or ancestry, age, gender, or sexual preference.” CCP Art. 42.014(a). Bias or Prejudice (CCP Art. 42.01, §6 and Art. 42.014) (Pen.C. §12.47). Applies to simple assault under Penal Code §22.01(a) and requires one step enhancement of punishment if an affirmative finding is made “that the defendant intentionally selected the person against whom the offense was committed or intentionally selected property damaged or affected as a result of the offense because of the defendant's bias or prejudice against a group identified by race, color, disability, religion, national origin or ancestry, age, gender, or sexual preference.” CCP Art. 42.014(a).

27. More Ethics Knowledge of the Judge: Canon 3B(5) – bias or prejudice As a Judge Prior Convictions Role of Prosecutor As a prosecutor Other jurisdiction knowledge of prior convictions

28. Judicial Notice Wilson v. State, 677 S.W.2d 518 (Tex.Crim.App. 1984): A trial court may take judicial notice of its own orders, records, and judgments rendered in cases involving the same subject matter and between practically the same parties. However, one trial court generally lacks the power to take judicial notice of the records or documents that might be on file in another trial court. For enhancement purposes, the prosecutor has the burden to establish the prior conviction by a preponderance of the evidence. (Certified copies of judgments from original court).

29. In Conclusion Make sure you have a valid judgment. Make sure you know if you need affirmative findings. Be aware of enhancements and what you need before you utilize one. Be aware of your ethical duties.

30. The End