Quick question from a frustrated police officer: Defendent commits act of stabbing a police officer in the face during a traffic stop (Ag. Assault on Police Officer is the charge). Defendent has a lengthly criminal history and is an all around bad dude. Case is set to a jury trial in which he is found guilty. The prosecutor of this case did a wonderful job. Jury then hands back a punishment of probation. Is the judge hearing the case given any ability under Texas law to refuse the punishment of probation, and tell the jury to go back to the drawing board?

In short, no.

Texas law gives the defendant the power to elect, before trial, whether a judge or jury will decide punishment.

If a jury assess punishment and returns a verdict of probation, the judge must grant the probation.

Oddly, if the jury assesses confinement, so long as the sentence is 10 years or less and not one of several violent crimes or a felony with a deadly weapon finding, the judge, according to a recent case from the Court of Criminal Appeals, can grant probation anyway.

So, I guess sentencing is a one-way street for the defendant's benefit.

Your case sounds like one from a recent Travis County jury. Sorry.

Details.

A small comfort is knowing that someone capable of committing an act like that will never make probation.

Thank you for the information and yalls time. I appreciate it.

The Judge must follow the probation recommendation, but the Judge sets the conditions of probation and can include 180 days county jail, up to 24 months in a community correctional facility, electronic monitoring, or any number of other conditions.

The judge can still send this bad dude to TDC for 60 to 120 days if there was a deadly weapon finding. See CCP Art. 42.12, Sec. 3g(b). I gather that this is in addition to the usual maximum jail time he can give as a condition of probation, which is 180 days. If I am right, if your judge works it right, the crook can spend 10 mos. incarcerated.

I gather Art. 42.12, Sec. 3g(b) was designed especially for situations like yours, when a jury lacks the nerve to send a bad guy to the joint after using a D.W.

Let us know how things turn out. Good luck.

Terry, that provision specifies that the deadly weapon must have been a firearm.

Sorry about that. Bummer. Well, your prosecutor can still ask for the 180 days jail time as a condition of probation, which he sounds like he richly deserves.