My supervisor told me that he thought there is some loophole where a jury can't give probation on a SJ felony. I can't find this in the Code anywhere. Is this true? My defendant has no prior felonies as an adult, so he is probation eligible...unless this is true.

Check out The Perfect Plea chapter on Community Supervision. It outlines the back and forth laws for the state jail felony regarding probation. For the most recent SJF cases, jury can give probation. Check out the date of the the offense and compare it to the effective dates for those laws.

ADAA, we just had this debate on a drug trial. These are the provisions that made up our debate:

CCP 42.12 Sec. 15(a)(1) says "On conviction of a state jail felony under (certain HSC sections) the judge shall suspend...." and place on probation.

But 42.12 has a separate section for jury recommendedCommunity Supervision--which is Sec. 4. It says "A defendant is not eligiblefor comm. sup. under this section if the defendant...(among other options) is convicted of a SJF for which suspension occurs automatically under 15a.

Our argument was that because the statute specifically excludes it, no probation if the defendant elects jury punishment. Seems like two bites at the apple..."I'm hoping the jury will be lenient but if not, the judge HAS to be."

The defense's argument was that the legislative intent was to not confuse the jury and just let the judge apply probation after the jury comes up with a sentence. (I won't go on any rants here about using "legislative intent" because I've done that in other threads, but I think it's like chasing your own tail.) I would argue that perhaps the intent was to NOT encourage trials when a guilty plea would guarantee probation. But I haven't listened to any floor tapes, or anything.

Problem is, the law also still says that the judge cannot give probation either, in Sec. 3e, I guess they just never took that out. So, arguing that the law conflicts doesn't work with that statute.

The defense also showed me where the Texas Practice books agreed with their interpretation that there is a three step process: 1. Jury finds guilty. 2. Jury assesses sentence. 3. Judge probates.

BUT my further question is that if the judge is able to give probation, why the words the defendant is not eligible? That seems to say to me something different than "the jury need not bother with it."

I guess the debate then was whether the judge was required to or not. We thought the new Ivey case sort of said that he could, the question was did he have to under Sec. 15.

If defendant is eligible for automatic probation, then he also gets it from jury. Just no reason to litigate it before a judge or a jury.

The legislature did not intend to punish a defendant for trying his case before a jury. Originally, the SJF probation was automatic in all cases, then automatic only for certain drug cases. The various changes have certainly made the statute hard to read, but the history bears this out.

I think that's what it's supposed to say. It would be so much simpler if that's what it actually said!

That's what happens when the Leg says one thing and keeps changing it session after session. It ain't pretty.

give probation even though Section 4 (d)(2)of 42.12 says they can't, does anyone have a punishment charge to that effect? I have a trial coming up where the D, even though he automatically gets probation if convicted, wants the jury to assess his punishment. Please e-mail it to me at: e.hernandez[no spam]@wallercotx.com. Just delete the [no spam] part. Thanks!

[This message was edited by e hernandez on 04-07-09 at .]

It is a bad idea to tell the jury that their decision to deny probation is subject to being overruled by the judge. That merely encourages them to guess what the judge would do.

You are better off convincing your judge that he/she should not mess with the jury's decision.

Meanwhile, SB 1278, having passed the Senate, moves on to the House.

Okay, I really need a jury charge for when the D insists on jury punishment on a mandatory probation case. Anyone out there have one? We start trial on Tuesday. Thanks!

[This message was edited by e hernandez on 04-09-09 at .]