Is there anywhere where it is permitted for a defendant, without any agreement by the state, to plead guilty to an offense (here sexual assault of a child)but ask the judge to not make a finding of guilt at that time, after which evidence is heard on punishment, and finally ask the judge to put the defendant on deferred?

In other words after a defendant pleads guilty can a judge defer a finding of guilt until after a punishment trial before the court, without an agreement or the consent of the State?

Thanks in advance.

If you know this is what the defense wants to do and you want to prevent it all you have to do is to refuse to waive trial by jury.

look at 42.12 ccp sec 5. a judge can put a def on deferred prob upon plea of guilty. look at 42.12 sec 5(d) for times not allowed.

We are already looking at refusing to waive jury, and I recognize that sexual assault of a child is eligible for deferred, but I always understood that a defendant couldn't get deferred unless the state agreed to it.

And how do you get to a punishment trial and the use of punishment evidence, without a finding of guilt?

Technically, when a defendant pleads guilty, it becomes a unitary proceeding instead of a bifurcated one. There is no "guilt phase" and "punishment phase", because you're not deciding on guilt. If the defendant pleads guilty to the judge, then everything both sides put on is punishment evidence, and the judge can sentence the defendant to deferred if he believes it's appropriate. The only way you prevent that is by not waiving a jury.

If the defendant pleads not guilty, then you still have the traditional bifurcated trial, and you can object to all punishment evidence as not relevant to the guilt phase until the judge has actually reached a verdict on guilt. Of course, if the defendant pleads not guilty, he can't get deferred anyway.

If you are looking to prevent a deferred or want a jury to assess punishment, just don't sign a waiver of a jury trial. The state has an absolute right to a jury trial on guilt/innocence and mandamus will be granted if that right is not respected. See State ex rel. Turner v. McDonald, 676 S.W.2d 371. Once a jury finds the defendant guilty, they are guilty. Therefore, a deferred cannot be granted by the court. And, since the court can't give regular probation to a 3g offense, the defendant must be sentenced to pen time if they elect to go to the court for punishment. If they elect to go to the jury, the best they can get is regular probation. In addition, if they have a prior felony conviction, they are not eligible from a jury and may be prevented from getting probation from either the court or the jury.

All covered with cites in The Perfect Plea.