The first question a prosecutor asks about a new case is not "what happened?" It is "what's the record?" Brian Foley explains in this video why the answer changes everything that follows.
Enhancement of the charge
Some statutes raise the offense level itself when there is a prior:
- DWI. A second DWI is a Class A; a third is a third-degree felony — no matter how old the priors. See enhanced penalties for DWI.
- Assault family member. A prior family-violence conviction — including a deferred adjudication — makes a new bodily-injury assault a third-degree felony.
- Theft. Two prior theft convictions make any theft, regardless of amount, a state jail felony.
- Evading, criminal trespass, and others carry their own repeat-offense bumps.
Enhancement of the punishment range
Penal Code § 12.42 and § 12.43 raise the range without changing the charge. One prior felony conviction moves a third-degree felony to a second-degree range (2–20 years); a second-degree to a first (5–99 or life). Two prior sequential felony convictions trigger the habitual offender range of 25 to 99 years or life for any new third-degree or higher felony. A prior state jail felony can be used to enhance under § 12.425. Misdemeanor priors raise misdemeanor minimums under § 12.43.
Bond and conditions
Prior convictions, prior failures to appear, and pending cases raise the bond amount and add conditions. A person on probation or parole may be held without bond on a motion to revoke.
Eligibility
Harris County pretrial diversion programs generally require no prior convictions. Judge-ordered probation is unavailable for many second-degree and higher felonies with a prior; jury-recommended probation is unavailable to anyone previously convicted of a felony. Deferred adjudication is barred for certain repeat offenses.
What the defense still does
Priors must be proven — with certified judgments and fingerprint or other identity evidence — and defective, out-of-state, or improperly sequenced priors are challenged. The underlying case is defended on its merits regardless of the record. And mitigation matters more, not less, when the range is higher. Brian Foley and Luis Baez handled enhanced cases as prosecutors. Call or text (713) 703-1718.