If a defendant indicted as a habitual offender (two prior pen trips) pleas cold to the Judge (meaning he pleas true to the enhancement paragraphs) can the Judge give him deferred even though it normally carries 25-99 or life?

[This message was edited by myoung on 07-15-03 at .]

Yes, I think the judge could do that. I don't see why the judge couldn't since he is deferring the finding of guilt. But you can prevent this from happening simply by not consenting to the waiver of a jury. He can't plead to the judge without your consent. If you withhold it, he is forced to go to trial or plead guilty to a jury. A plea of guilty before a jury is a unitary proceeding (see CCP 37.07(2)(a) -- bifurcation only applies to pleas of not guilty; there is case law on this too)so then he would go to the jury for punishment too and would have the regular range of punishment. He might not want to risk that and might be more willing to consider a plea bargain before the judge if you don't agree to waive a jury. Of course you had better be able to prove the case since you might end up going to trial.

I found a case that specifically says the Court can do this. It is Cabezas v. State 848 SW2d 693 (Tex. Crim. 1993). The Court does state that "while technically possible, we cannot imagine a scenerio where a Judge would determine that the best interests of society are served by giving a habitual offender deferred".

I like that "cannot imagine a scenerio" language.

From speaking with Mike and reading his posts it looks like we need to run him for judge against the one he is stuck with now. I thought we had some bad ones here! I guess someone always has it worse. Mike, if you run I'll donate the first $50.00.

[This message was edited by BLeonard on 07-03-03 at .]

Deferred for a habitual offender is not such an impossible idea. I had a drug offender who begged me for deferred. He said all he needed (for the third time) was some treatment. Now, why have a jury trial over a drug case if a defendant will plead guilty to the indictment and true to the enhancements, and agree to 10 years deferred adjudication and placement in a substance abuse felony punishment facility? When he tested positive (as he promised never to do again), the judge gave him 40 years in prison. All in all, the proceedings, including the adjudication, took less than a day with no right of appeal. Hmm.

I have plead Habituals to Deferred several times. Like many pleas, there were some weak facts or arguable legal issues (search problems) but the defendant does not want to risk the 25 minimum. It usually takes a very short time for a two time loser to violate CS. I have also had them stipulate to facts that would make the case a 3g (in habitual cases as well as others)and had the Court enter a finding that the facts substantiate a deadly weapon finding but the Court defers the finding until the inevitable violation

I find a lot of habit. criminals committed their priors many years in the past. What do you do with a fellow who has a couple of relatively minor felony convictions, but the last one was in 1980, and he's been caught with 5.5 lbs. of marijuana? I like to give deferred in those cases, along with SAFE-P as a condition of probation. I also want the crook to work for the police as a C.I. before I give such a sweet deal.

Still, if you have a judge who will never pull the trigger on probationers who make a mockery of their probation, maybe you should make friends with the local paper's courts reporter. You can give him the big picture on deep background, and advise when the probationer is coming up for a hearing. At the hearing lay out all of his violations, and repeat on the record what the judge has done in past motions to adjudicate. Then make a little speech about how its time for this guy to go to the joint for a long time, or it will make a joke of probation, and make it difficult for P/O's to enforce probation rules on the rest of their caseload, etc. etc. Say whatever you would like to appear in the paper, and say it loud enough and slow enough so that the reporter gets it all down correctly.

Regardless of whether or not the judge hammers the crook, the paper will hopefully print your remarks. The judge can't blame you--after all, the reporter just accurately reported what happened in open court, and all you did was accurately repeat the crook's probation history in court. But a little bad publicity might go a long way in stiffening your judge's spine.

Judges in Dallas not infrequently choose to defer adjudication of guilt even though the defendant is shown to be an habitual offender. Obviously, they have more imagination than the judges sitting on the Cabezas court. It was not the purpose of the enactment of section 5 to provide any benefit to habitual offenders, but it certainly has. No outcry from any quarter has arisen in Dallas except from the Fifth Court of Appeals, which recently found the appellant could not have been harmed by the admission of prejudicial evidence and stated: "As an habitual offender, Burks was subject to be sentenced to imprisonment for life, or for any term of not more than ninety-nine years or less than twenty-five years, TEX. PENAL CODE ANN. § 12.42(d) (West Supp. 2014). He was not eligible for either community supervision or deferred adjudication community supervision. See TEX. CODE CRIM. PROC. ANN. art. 42.12 §§ 3, 5 (West Supp. 2013)."