"The trial court was prohibited by statute from placing appellant on community supervision for aggravated assault with a deadly weapon. Tex. Code Crim. Proc. Ann. art. 42.12, 3g(a)(2) (Vernon Supp. 2008). Therefore, before he would be eligible to receive community supervision, appellant would have to file an election for the jury to assess punishment and would have to file an application for probation.

Appellant's trial counsel testified at the hearing on appellant's motion for new trial that she did not file an election for the jury to assess punishment or an application for probation and that she was aware that the documents were required to be filed in order for appellant to receive community supervision. Trial counsel further testified that the failure to file the required documents was not trial strategy."

Result: State must re-try punishment phase. Farris

Note: No suggestion that counsel will be considered for disciplinary action.

Comment: Didn't defendant effectively waive right to have jury consider punishment by knowingly adopting this course of action (strategy, tactic, or whatever you want to call it)? If not, what could have been done (by either the judge or the State) to prevent this from happening?

The problem is that this apparently wasn't strategy, but rather the lawyer not doing his job. I hate practicing defensive prosecution, but, too often, I have seen defense counsel not be familiar with which assessor of punishment can do what kind of sentence. As a result, I always double check their punishment selection with them, making sure that they understand what they're doing. If they make a decision which takes punishment options off the table, I try to make a record of their decision.

The worst violator of the "Don't Know Sentencing Law" Club was an attorney on an aggravated assault case who started conducting voir dire on whether the jury could consider deferred adjudication if they found his client guilty. My first thought was, "Um, are you sure you're licensed?"

The court, as a practical matter, said counsel was partially competent.

Defensive prosecution is tiresome. Did this defense attorney have a decent reputation for taking care of business prior to this case?