For the charge of felon in possession of a firearm, can the underlying "conviction" be a deferred adjudication?
The conviction cannot be a deferred. If that were a possibility it would specifically say so. See Penal Code 22.01 (f) for the example.
There is no such provision in 46.04.
Although in dicta, 4 judges on the CCA have stated the conviction must be final. See Jones, 77 S.W.3d at 828.
Somehow I think Martin's answer carries more weight.
All I did was refer to someone else's answer. We were both right (I think) and that's all that counts.
The plain language of the UPF statute allows for a prosecution based upon a regular probation, but not a deferred. A defered is not a conviction until adjudicated. A regular probation is a conviction, albeit not a "final conviction" for purposes of enhancement under Chapter 12 of the Penal Code until the defendant has been revoked and sent to the pen. See Ex parte Langley, 833 S.W.2d. 141, 143 (Tex. Crim. App. 1992).
[This message was edited by John Rolater on 04-23-04 at .]
Didn't I see a case recently that threw out a felon in possession following regular probation because the judge had signed an order under 42.12 dismissing the probation and releasing the probationer from the penalties and disabilities resulting from the offense? Better check to see if such an order has been signed before you use that probation as the underlying felony.
The citation I believe Tim refers to is Cuellar v. State, 40 S.W.3d 724.
Tim, you make a good point. That is part of our intake protocol on that type of case.
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