Defendant indicted for two first degree felonies arising out of theft episode that lasted over three years. Defendant was convicted and received probation from the jury on the first trial. That sentence is on appeal.

We are preparing for a second trial but expecting the results of the appeal to come down soon. Will defendant be eligible for probation when the first conviction is affirmed?

42.12 Sec. 4(e) says that before the trial the defendant must file a sworn affidavit that he has never been convicted of a felony. He wouldn't be able to do that prior to the next trial.

I can't find any cases either! But the statute is not ambiguous. I think he is not eligible.

Check out Milburn v. State, 201 S.W.3d 749
(Tex. Crim. App. 2006). I think he is probation eligible. Sorry. Tried emailing you the case.

Defendant with no criminal history commits a burglary in Parker County. As he leaves the scene of the burglary and crosses into Tarrant County, their officers attempt to initate a traffic stop. Defendant evades with a vehicle b/c he has the stolen items in his vehicle. He wrecks and is caught and arrested in Tarrant County.

He pleds to 120 days in Tarrant County Jail on a 12.44(a) on 1/23/2009 and affirmatively waives his right of appeal.

He is now set for trial on the Burg Hab case here. Defense counsel is arguing to the Court that he is probation eligible b/c at the time the Defendant committed the offense he did not have a felony conviction. Our position is that probation is not an option under the plain reading of the statute.

Art. 42.12 Section 4(e) says "(e) A defendant is eligible for community supervision under this section only if before the trial begins the defendant files a written sworn motion with the judge that the defendant has not previously been convicted of a felony in this or any other state, and the jury enters in the verdict a finding that the information in the defendant's motion is true."

I have a defendant that was indicted in two separate indictments for sex offenses arising out of the same transaction. One indictment is tried. He gets convicted and placed on probation. No appeal is taken and several months pass. As a convicted felon, will he be eligible for probation for the offense alleged in the second indictment? I don't think so. What do you think?

That questions gets asked over and over in this Forum. Answer: Maybe. Depends on the meaning of previously.

quote:

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Originally posted by JB:
That questions gets asked over and over in this Forum. Answer: Maybe. Depends on the meaning of previously.

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JB, you get in line.

Some of us are STILL waiting to find out what the meaning of IS...IS.

I think probation is not an option and the defendant could be charged with aggravated perjury if he files a motion seeking probation.

Maybe when I have closer to 6000 posts, I will have more intelligent questions to ask. Though I would like to know if I am wrong, I also believe that "previously" means before the time the defendant signs his application, which would make these defendants not elligible for probaiton. As always, thanks for your responses.

Robert, I agree with your answer, notwithstanding my posting number. And I didn't mean to imply it was not a good question. Given that so many people have asked it and we still don't have a definitive answer, it must be a great question.

But I just don't have a case that emphatically agrees with both of us. And, after a few years of prosecuting, that makes me cautious. But, someday, someone, has to make a stand on this thing. Anyone want to go first?

I will make a run at it in a month or two. My judge will probably go with me, so the issue may be before the Second Court of Appeals. We will see what happens.

The way the statute reads--if the Defendant would have filed an application for probation in each of your two cases--prior to trial in either case--would he be probation eligible?

The statute does not provide a time frame within which the Defendant must file the application--only before trial commences.

And if a defendant did that--would a jury make an affirmative finding that at the time of the application the defendant had never been convicted of a felony offense or at the time of punishment the defendant had never been previously convicted of a felony offense?

Okay--I'm stopping now. My head is spinning.

I'm with you Rob--maybe we'll end up with two cases before the Second Court of Appeals on the same issue.

Ultimately, given the potential for ambiguity, an appellate court is going to indulge in some speculation as to legislative intent. And, given the ability to make reasonable arguments from different directions, I think we all know that some judges will say that "previous" applies to the date of the instant crime, some will say "previous" applies to the date the application is filed, and some will say "previous" applies to the date the trial is held. And they will all argue that their particular statutory construction is the most reasonable. Someone will get a majority vote.

Setting aside what we want it to mean, what would be the most reasonable application?

Personally, my opinion is that the affidavit seeking probation can legitimately be signed in the circumstances in which two cases are pending, but neither has been pled. However, it is rebuttable information, and if the defendant subsequently pleads to a felony prior to the trial of another case, then he has been "previously convicted" at the time of trial. Doesn't make the defendant a liar at the time s/he signed the affidavit, but certainly might become ineligible. However, I think that the "interpretation" of "prior conviction" may hinge on a jury's reading and factual determination of that issue.

Are we perhaps overanalyzing the statute? Legislative intent appears straightforward from the plain text. And I say that fully acknowledging that the very sentence I just used makes me nervous when I read it at the beginning of an appellate holding.

To me it appears the legislature wanted the Jury to find that the defendant had not been convicted of a felony before they put him on probation. The goal appears to be having the jury as a final check to make sure a convicted felon isn't given probation at trial, at least by them. If so then the day of trial is the best date to use to accomplish that.

Generally when we invoke the jury we ask them to apply the law, admittedly often involving complex legal rules, because we want to draw on the common sense and life experience of the community. That goes back to the reasons we use a jury in the first place.

While that may seem a simple answer, the typical process of divining legislative intent from what is included and excluded from the text of a statute seems to back it up.

If the legislature had intended for there to be a more deep and technical analysis about the appropriate time for making the request and the proper manner in which to assert the request, they would have done so. The legislature could easily have set forth a date by which the application must have been filed. It could just as easily have made the judge the gatekeeper on whether a defendant was probation eligible or not and leave the jury only with the decision of whether or not to grant probation to a defendant the judge found eligibe.

The Code of Criminal Procedure, Penal Code, Texas Rules of Evidence, and many other statutes are rife with examples of statutes the legislature has enacted that provide dates by which documents must be filed with the court or procedural issues where the judge's determination provides direction for a jury.

The fact that the legislature is well familiar with these tools, chose not to use them, and the plain language of the statute all seem to point to the date of trial as the most reasonable date to use in resolving these kinds of questions.

Or at least, that's how I see it.

Does anyone know if there has been any progress on this issue?