Back in 2010, I had a jury trial on an Evading w/ Vehicle / DWI case where the jury maxed the D out (it was discovered that 2 weeks before trial, D was arrested for another DWI and stole the PBT). D went to jury for punishment, and they maxed her out. D appealed all the way up, it was affirmed, and she turned herself in November 29, 2011. Motion to Impose Community Supervision was filed in April of this year, and we had a hearing yesterday. I objected of course, on the grounds that the court did not have jurisdiction of the case. My argument was that 42.12, sec 15(f)(2) cannot be read in isolation. It must be read in conjuction with (f)(1) which presumes D is already on probation. (Sounds like the cannons of statutory construction would demand that!) I also attempted to argue that sec 3 prohibits comm supervision for Ds sentenced to confinement on SJFs (a stretch, I know). Anyway, Judge didn't buy any of my arguments. He reset the case until November 1st, and basically said he was going to shock her if she was doing good in state jail up through that point. Any ideas how I can reurge my jurisdictional point???

See The Perfect Plea (TDCAA 2010 edition), page 85. And read Ivey v. State, 277 SW3d 43 (Tex. Crim. App. 2009). Judge can probably shock out a state jail defendant from a jury-sentenced term of confinement.

There was a bill to overrule Ivey in a previous legislative session. It didn't pass.

Since JB answered your question, can I ask one of my own? The D stole the PBT in her prior DWI?! I want to hear some details of that. Wow.

Thanks JB...I've read The Perfect Plea, and I looked at the bill that ALMOST passed. I just feel that there has to be some argument that if the legislature truly intended for the judge to have continuing jurisdiction, it would have made a separate section entitled "Continuing Court Jurisdiction in State Jail Felony Cases" or added a section under Section (6). It seems that placing it as sec 15(f)(2) refers to the court only having jurisdiction if a defendant violates state jail community supervision, and I can't find anyone who can tell me why that isn't the case.

And yes, she stole the PBT - stuck it in her purse. Clearly no one told her the results were inadmissible in court. Her defense attorney tried to get the trooper to claim the PBT was the same size as a cell phone and she could have gotten confused (maybe in the 80's???)

For state jail felonies, the Legislature genuinely wanted to extend the jurisdiction of judges for as long as possible. Being low-level, non-violent crimes (contradicted, of course, by your evading/DWI defendant), such defendants would theoretically benefit from every opportunity at programs, etc., short of confinement.

Not sure why we bother with jury punishment if the judge can veto it, though.

quote:

I just feel that there has to be some argument that if the legislature truly intended for the judge to have continuing jurisdiction, it would have made a separate section entitled "Continuing Court Jurisdiction in State Jail Felony Cases" or added a section under Section (6).

No need; that's already the law, for the policy reasons JB stated. For further proof, consider the new "diligent participation credits" that apply for post-9/1/11 SJF cases. Those would be impossible unless the court retained jurisdiction throughout the probation period.