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I have been preparing for a non-jury trial with a pro se defendant that starts in the morning....I just realized today that he has not made application for probation, nor do I expect him to. I have briefly looked for the provision that requires same but have been unable to put my finger on it....in all the years I have been doing this, no one has ever failed to file a written application prior to trial. if he fails to do so, can the judge grant probation if he finds the defendant guilty?
Any help would be appreciated.
 
Posts: 568 | Registered: November 14, 2002Reply With QuoteReport This Post
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An application for probation only needs to made if a defendant is to seek probation from a jury. If he does not, the judge assesses punishment by default. Since this is a TBC, no application is required. I don't have the site, but it's in the front of 42.12 somewhere.
 
Posts: 42 | Location: Decatur, TX | Registered: March 22, 2001Reply With QuoteReport This Post
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The provision is art. 42.12 sec. 4(d)(3) and sec. 4(e). There is no corresponding requirement in sec. 3 (judge ordered straight probation) or sec. 5 (deferred adjudication).
 
Posts: 109 | Location: Llano, TX USA | Registered: June 29, 2009Reply With QuoteReport This Post
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ah ha! Thanks guys! no wonder I could not find it for a non jury case.....it seemed to me that the judge was not prohibited from granting it if the case was tried to the court, but I have never run into that before....as always this forum is a life saver....and being tried to a non-atty judge always makes things more interesting.
 
Posts: 568 | Registered: November 14, 2002Reply With QuoteReport This Post
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See also CCP 37.07, sec 2(b).
 
Posts: 7860 | Location: Georgetown, Texas | Registered: January 25, 2001Reply With QuoteReport This Post
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