Does anyone have any thoughts (case law would be better) on the issue of whether once someone has been placed on regular probation (not deferred) for a state jail felony that, upon revocation, they can be sentenced under the misdemeanor punishment range provisions of Texas Penal Code 12.44(a)? We have found one case (McDaniel, 2000 Tex. App. LEXIS 8132 out of Amarillo) that indirectly addresses the issue. In that case, a revoked defendant filed an appeal claiming ineffective assistance of counsel against the lawyer who represented him at the revocation because the lawyer did not seek to have the case punished under 12.44(a). The appellate court affirmed stating that the record showed that the trial judge was aware that he could sentence the defendant under 12.44(a), but chose not to. So, not a straightforward answer to the question. Any help?

I am unaware of any case law, but I interpret the statute to allow the judge to punish as a misdemeanor in that situation.

I have the same question arising in a motion to revoke. The defense attorney, (former prosecutor who's opinion I respect) pointed out that while punishment is set at the original plea during a straight probation, a reduction from that set punishment can always occur. A 12.44 reduction is no different legally than a reduction from 2 years SJ to 12 months SJ. So they intend to enter a plea of true with no recommendation and request the 12.44.

I think he has a point. I can't seem to find a reason why the court couldn't do that.

I believe it to be an accepted practice, although I have no caselaw to cite in favor of the practice.

For a previous (albeit inconclusive) discussion of a similar topic, read this thread on 12.44 revocations.

Something else to put in the original plea agreement: no future reduction under 12.44.