We need to work to repeal the language that does anything to set aside a proper verdict. I am particularly offended that it can be used to undo a jury verdict. I have a very hard time believing such a thing is constitutional.

One of our sergeants called me this morning and brought up another issue arising out of Cuellar: When does the officer arrest a person for UCW by a felon? All that shows on the criminal history check is the conviction. It doesn't show whether they received a 42.12(20) discharge. My advice was to rely on the criminal history unless the person either states that he or she received a 42.12(2) discharge (or that the court dismissed the indictment) or has a copy of the court order. In the latter, the officer can verify the claim and if not true, seek an arrest warrant.

Any thoughts?

Janette Ansolabehere

Janette,

If your officer finds what appears to be valid criminal history on the computer, he does not need to check with the defendant in order to make an arrest. All he needs is probable cause, after all, and I'm sure they face such claims--"that was dismissed"--all the time. Even if the defendant truly believed the case was dismissed, he would probably be wrong. I don't think this section should affect the decisions of officers in the field, especially since dismissal is discretionary rather than mandatory.

Sorry I haven't been more involved in this discussion (was out on vacation when posted) I agree that this statute needs to be thrown out!! I am a part time rural county atty with a judge who will rule with what I recommend. What if the judge grants the motion and I take it up on appeal. Does anybody have any inclination how the CCA will rule? Second if it looks favorable would anybody be willing to help, getting credit for their hard work?

Defendant's prior probation order shows "probationary period declared terminated, defendant discharged from probation and prosecution dismissed." Can this be used for enhancement or to keep defendant from being probation eligible. 42.12 Sec 20 says defendnat is released from all penalties and disabilities except: (1) proof may be known to the judge should the defendant again be convicted...
Also, by judge do we mean trier of fact or just the judge?

My gut says no.

John, maybe I am mixing up issues, but weren't the Dallas trial courts doing this on ineligible cases a few years back? I seem to recall in your new neck of the woods we used some of those ineligible cases once we had an opinion from the 5th COA.

We were getting around it on DWI cases because those cases are ineligible for discharge, so the discharge order is void.

Stan, under Arbuckle a probated sentence is never going to be used for an enhanced range of punishment, regardless of what the discharge order says (one exception possibly being for repeat sex offenders). The prior conviction does still qualify as a conviction for the purpose of determining eligibility for probation under sec. 4 since the court is obviously not exonerating the defendant. Taylor, 612 S.W.2d at 570-1.