Cite as: 530 U. S. 466 (2000)
Thomas, J., concurring
to which the defendant would otherwise be subject, if the entry into the house was effected by force exceeding that incidental to burglary. The trial court instructed the jury to sentence the defendant to 2 to 10 years if it found the requisite level of force, and the jury sentenced him to 3. The Texas Supreme Court, relying on Bishop, reversed because the indictment had not alleged such force; even though the jury had sentenced Hobbs within the range (2 to 5 years) that was permissible under the lesser crime that the indictment had charged, the court thought it "impossible to say . . . that the erroneous charge of the court may not have had some weight in leading the jury" to impose the sentence that it did. 44 Tex., at 355.6 See also Searcy v. State, 1 Tex. App. 440, 444 (1876) (similar); Garcia v. State, 19 Tex. App. 389, 393 (1885) (not citing Hobbs, but relying on Bishop to reverse 10-year sentence for assault with a bowie knife or dagger, where statute doubled range for assault from 2 to 7 to 4 to 14 years if the assault was committed with either weapon but where indictment had not so alleged).
As in earlier cases, such as McDonald (discussed supra, at 504), courts also used the converse of the Bishop rule to explain when a fact was not an element of the crime. In Perley, supra, the defendant was indicted for and convicted of robbery, which was punishable by imprisonment for life
6 The gulf between the traditional approach to determining elements and that of our recent cases is manifest when one considers how one might, from the perspective of those cases, analyze the issue in Hobbs. The chapter of the Texas code addressing burglary was entitled simply "Of Burglary" and began with a section explicitly defining "the offense of burglary." After a series of sections defining terms, it then set out six separate sections specifying the punishment for various kinds of burglary. The section regarding force was one of these. See 1 G. Paschal, Digest of Laws of Texas, Part II, Tit. 20, ch. 6, pp. 462-463 (4th ed. 1875). Following an approach similar to that in Almendarez-Torres v. United States, 523 U. S. 224, 231-234, 242-246 (1998), and Castillo v. United States, ante, at 124-125, one would likely find a clear legislative intent to make force a sentencing enhancement rather than an element.
513
Page: Index Previous 41 42 43 44 45 46 47 48 49 50 51 52 53 54 55 NextLast modified: October 4, 2007