Thank you for sharing!

Your article was successfully shared with the contacts you provided.
Click here for the full text of this decision FACTS:Texas Code of Criminal Procedure Article 44.01(b) allows the state to “appeal a sentence in a case on the ground that the sentence is illegal.” In State v. Kersh, the Court of Criminal Appeals decided that Article 44.01(b) authorizes the state to appeal a trial court’s decision not to consider its previous “true” findings on enhancement allegations when assessing punishment at an adjudication hearing. 127 S.W.3d 775 (Tex.Cr.App. 2004). In this case, the court of appeals decided that Article 44.01(b) did not authorize the state to appeal the trial court’s decision not to consider enhancement allegations when assessing appellant’s punishment following his conviction by a jury for the second-degree felony offense of aggravated assault with a deadly weapon. The court of appeals distinguished Kersh on the basis that the trial court’s previous findings of “true” to the enhancement allegations made them part of the sentence in Kersh. HOLDING:Reversed and remanded. The court’s decision in Kersh did not turn on whether the enhancement allegations were previously found to be true. Kersh explained that the definition of “sentence” is “nothing more than the portion of the judgment setting out the terms of punishment” and that this “consists of the facts of the punishment itself” including, among other things, “its duration.” Kersh further explained that the “duration of punishments prescribed for habitual and repeat offenders [under Chapter 12 of the Penal Code] is part of the sentence.” This applies even when enhancement allegations are not previously found to be true. Any legal significance attributable to the trial court’s failure to find the enhancement allegations to be true in this case related to the merits of the state’s contention that the sentence is illegal, not to whether the state was appealing a sentence on the grounds that the sentence is illegal. The court decided, based on Kersh, that the state appealed a sentence on the ground that the sentence was illegal and that the jurisdiction of the court of appeals was, therefore, properly invoked. The court’s review was limited to jurisdictional questions, and the court expressed no opinion on the legality of the sentence imposed. OPINION:Barbara P. Hervey, J., delivered the opinion of the court in which Keller, PJ., Meyers, Price, Womack, Keasler, and Cochran, JJ., joined. Johnson, J., concurred. Holcomb, J., dissented.

Want to continue reading?
Become a Free ALM Digital Reader.

Benefits of a Digital Membership:

  • Free access to 1 article* every 30 days
  • Access to the entire ALM network of websites
  • Unlimited access to the ALM suite of newsletters
  • Build custom alerts on any search topic of your choosing
  • Search by a wide range of topics

*May exclude premium content
Already have an account?

Reprints & Licensing
Mentioned in a Law.com story?

License our industry-leading legal content to extend your thought leadership and build your brand.


ALM Legal Publication Newsletters

Sign Up Today and Never Miss Another Story.

As part of your digital membership, you can sign up for an unlimited number of a wide range of complimentary newsletters. Visit your My Account page to make your selections. Get the timely legal news and critical analysis you cannot afford to miss. Tailored just for you. In your inbox. Every day.

Copyright © 2021 ALM Media Properties, LLC. All Rights Reserved.