HOUSTON -- An 11 News investigationuncovered what one Texas lawmaker iscalling a case study of what went wrong in the criminal justice system.

At issue: crooks who burglarize homes and cars, racking up long rap sheets full of misdemeanors and felonies, and yet who never serve significant time in prison despite a Texas law that was supposed to address just such habitual felons.

The I-Team uncovered the reason it s happening.

First, a case-in-point: Wes Garcia, a home remodeler, became a crime victim last March as he was leaving a Fry s Electronics store in north Houston.

I was thinking about going to have a cheeseburger, he said with a laugh as he recounted what happened that day in broad daylight.

He said as he approached his pickup truck, full of his expensive carpentry tools, he caught a man who d broken into his truck and was loading stuff into an SUV.

His door was open, and my door was open, and he was like in-between, said Garcia.

But what happened next would elevate the non-violent crime to something else.
The burglar jumped in his SUV and floored it, clipping Garcia on the hip.

I was out of work for a month, he said.

Garcia would later pick the man out of a photo lineup and learned his name was Marshall Tyler, a 30-year-old Houston man who has quite a record. Yet, as the 11 News I-Team found, his repeated convictions seemed to be of little deterrence: he just kept offending.

His case, which veteran prosecutors told the I-Team was nothing unique, shows how a decades-old law has been changed over the years to accommodate rising crime and tightening budgets.

In the 1970s, Texas was one of the first states to pass a Three Strikes law. You get two felonies, and the third one could land you in prison for a very long time.

In one case, a San Antonio man who had two convictions for check and credit-card fraud was convicted a third time for another bad check. He got life in prison, a sentence he challenged as cruel, but which the Supreme Court upheld in 1980 (Rummel v. Estelle.)

Lucy Davidson was a Harris County prosecutor back then and said long prison terms were a clear deterrent. She recalled cases involving offenders convicted years ago when long sentences were more common.

They don't want to go back, said Davidson.

But there was a down-side. The lock em up attitude, combined with the crack cocaine epidemic in the 1980s and 90s, had Texas prisons bursting at the seams.

Back in the 90s, we'd turn out a rapist to put a car thief in. And that was nuts to me, said Texas State Senator John Whitmire.

Whitmire, a Democrat from Houston, was among lawmakers who were asked to come up with a solution.

One innovation was state jails. There s one in downtown Houston at 707 Top Street, it is right across the street from jails run by Harris County. But state jails are run by Texas. They take non-violent felons for short sentences and emphasize rehabilitation, freeing up state prisons to take rapists and murderers.

But that, in turn, has created another problem: state jail sentences do not count as strikes, only time in a full-fledged state prison does that.

This brings us back to Marshall Tyler.

Reading through his rap sheet, there are entries for burglary of a vehicle, possession of a weapon, and auto theft. Hardly a year had gone by since he turned 18 that he wasn't in trouble. In all, his rap sheet has 34 entries.

But only once, for that possession of a weapon charge, did he receive time in state prison.

His other sentences were all served in state or county jails. So when he nearly ran over Garcia, he technically had only one strike against him. So, on June 29, Tyler received a sentence of three years in state prison.

Was that justice?

The former prosecutor said it's the law.

It's not unreasonable, based on what I looked at. His priors just weren't significant enough to make him fall under the three strikes you're out, said Davidson.

The senator said it's a problem.

I'd use him as a case study of what went wrong and how do we fix it from here, said Whitmire.

And the crime victim said it's not enough.

He's probably going to serve a year on that like nothing happened, said Garcia.

The Harris County District Attorney s Office told 11 News that if Marshall Tyler is caught again committing a serious felony, he will be eligible for the three-strikes treatment. That could mean 25 years to life, according to a spokesperson.

A call by 11 News to Tyler s attorney was not returned.

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