Ever kept the probation language out of a jury charge based on a court-martial conviction? I've found a large amount of cases where a crime was enhanced but nothing involving probation eligibility.

The bigger issue is determining whether the court-martial conviction is a "felony" for 42.12 purposes. My argument would be that the definition in Penal Code 12.41 would be helpful in determining whether the conviction is a felony....thoughts? The judge doesn't appear to agree.

[This message was edited by cgatewood on 02-02-12 at .]

1) was the crime punishable by more than one year's confinement?
2) Could the conviction result in the loss of any civil rights?

Punishment is up to 2 years, loss of rank, loss of pay, etc. I'd say it's common sense that the crime was a "felony" for 42.12, but the court is reluctant to agree.

try Penal Code � 12.42(c)(2)(B)(v).
353 S.W.3d 863
Court of Criminal Appeals of Texas.
Brandon Gene RUSHING, Appellant,
v.
The STATE of Texas@865-866

Yeah, I have the Rushing case. Thanks for the input.