Am I misreading the 3G statutes?

We've got a defendant convicted of Agg. Assault with a deadly weapon finding (firearm) who has elected the JUDGE for punishment.

The judge ordered the punishment hearing to be delayed one week so that the defendant could complete a PSI.

It appears that if the defendant is placed on community supervision on an F2 or higher with D/W, (by the jury) then the judge MAY require 60-120 days in TDCJ.

BUT in the section that restricts community supervision, (a)(1) lists the specific crimes (Murder, Agg Sex Assault, blah blah) and (a)(2) says any deadly weapon finding on a felony.

Umm.. The way I read it, the defendant cannot get probation from the judge. Am I wrong?

You are correct. With a deadly weapon finding, the judge is disqualified from giving postconviction community supervision. Before the trial, if the defendant had pled guilty, the judge could have given deferred adjudication.

So, the big question is whether the defense attorney knew these things when he advised the defendant on making an election as to judge or jury for punishment.

The defendant changed his mind right before trial. I heard the defendant tell his attorney that he thought the 'white jury' was going to hang him. The defense attorney shook his head and informed the judge of the defendant's choice.

Whether or not he told the defendant that the judge would not be able to give him probation is anyone's guess.

To protect our convictions, sometimes we have to do the defense lawyer's job. If a defendant makes a change of election like that, you might think about asking the defense attorney (quietly, of course) if he realizes (and has informed the defendant) that he will not be eligible for probation if there is a deadly weapon finding.

That way, you avoid a later claim of ineffective assistance of counsel.