Herein probation = community supervison ... gray eagle problem.

I have just finished a weird jury trial. The defendant was convicted of a State Jail Felony and the Jury found an Affirmative Finding of a Deadly Weapon. The Defendant elected punishment by a jury.

Section 12.35(c) provides upon conviction of the State Jail felony with a deadly weapon it is punished as a 3rd degree (not a word about probation).

The same chapter provides 3rd a degree felony punishment is 2 to 10 years and a fine up to $10,000 (not a word about probation).

Article 42.12, Section 4 provides that there is no probation from a jury upon conviction for a Section 12.35 offense - obviously includes a, b & c.

Article 42.12, Section 15 provides that a judge may probate a jury conviction of a 12.35(a), REPEAT AND NOTE THE (A). My case was a 12.35(c) conviction, not an (a) conviction. Thererfore, no judge probaton.

In any case any reading of Article 42.12, Sections 3 and 3(g) preclude a judge from granting probation after an affirmative finding of a deadly weapon.

I argued against submitting the community supervision option to the jury in the punishment charge even though defendant had filed the application and proven it up.

The law says third degree felony offenses are punished by prison ... how do we get a probation option where there is no law leading to it or authorizing it? This is obviously an oversight by our legislature and left over from the days when a state jail offense was mandatory probation, but it is the law ...

My defendant got probation from the jury. Is it unlawful? In the event of a revocation, does he get day for day credit for the time he was out after a wrongful release? A new sentencing hearing? A new trial?

My judge called around but ... he gave the charge on the theory that it is impossible that a murder defendant can be eligible, but not a criminally negligent homicide defendant. Hey, he said other courts have done it ... I didn't care if other courts had fallen into error ... but we did it his way.

This problem really sends you in circles. The restriction of the jury's authority to recommend suspension of the sentence in 42.12 sec. 4(d)(2), C.C.P. is with respect to persons "sentenced under" sec. 12.35, Penal Code. But is a person convicted of a state jail felony involving use of a deadly weapon sentenced under sec. 12.35. 12.35 (c) sends you to 12.34. Thus, I say he is being sentenced under 12.34 and accordingly the judge correctly gave the jury the option to consider probation. I realize it is just as easy to say he is being sentenced under 12.35(c), but it does seem rather absurd to say killing someone by criminal negligence deserves a harsher penalty than the more aggravated forms of homicide. I do not think the defendant will ever get the opportunity to say punishment assessed in accordance with 12.34 (and 42.12 sec. 4) was improper. The only way he could get there would be to say he should have been punished under 12.35(a), because for all practical purposes a 12.35(c) offense is a third degree felony and not a state jail felony (since you never go to state jail). You are probably right that the judge could not have probated him (assuming he had asked under either sec. 3 or 15 of 42.12).

Your question raises another interesting point though. Except for things like third-time theft and DWI, an enhanced penalty is not treated as upgrading the degree of the offense(or creating a separate offense), it merely changes the applicable range of punishment. Still, in my judgments I state the degree of the offense as though it had changed. No one has been objecting and I figure it will impress the parole board differently.

Martin,

I wish it were that easy. Note that in 42.12 that there is no reference to 12.34 but there are references to 12.35.

The jury convicted the defendant of Criminally Negligent Homicide, a state jail felony. With their deadly weapon finding, 12.35(c) says is is punished as a 3rd degree felony but 12.35(c) still says "upon conviction of a state jail felony". 12.35(a) sets forth the 180 days to 2 years and 12.35(c) incorporates by reference 12.34 but it is still a 12.35 conviction.

------------------------------------------------- Texas Statutes
PENAL CODE
TITLE 3. PUNISHMENTS
CHAPTER 12. PUNISHMENTS
SUBCHAPTER C. ORDINARY FELONY PUNISHMENTS

-------------------------------------------------
� 12.34 PENAL. Third Degree Felony Punishment

(a) An individual adjudged guilty of a felony of the third degree shall be punished by imprisonment in the institutional division for any term of not more than 10 years or less than 2 years.

(b) In addition to imprisonment, an individual adjudged guilty of a felony of the third degree may be punished by a fine not to exceed $10,000.
------------------------------------------------

Note: Not one word about probation or community service - take a 3rd Degree hit and go to prison - no options in 12.34.

Mercy is in 42.12, Tx.C.C.P. -

Section 4 says no probation/community service from a jury if it is a 12.35 Penal Code offense. 12.35(c) says my case is a state jail felony with a deadly weapon.

Section 3g says no probation/community service from a judge if there is a deadly weapon.

No probation/community service from a judge or from a jury equals go to prison like it says in 12.34.

I agree it is stupid that a 19.02 murderer can be eligible, but not my defendant. However, it is what the law says. I think it is an artifact left over from 1994 when state jail felonies carried a mandatory probation and when that was changed that this little hole was left.

It needs to be addressed but for right now my oath is to enforce the laws of the State of Texas ... is that always justice? In my case justice would not have been bruised by this defendant going to prison ...

If it is justice, there are the possibilities of opportunities here.

It helps to put the state jail felony in the context of its history. The new fourth degree felony was created as a way to divert nonviolent, low level felony crimes from prison and into a relatively short-term place of confinement or community supervison. To get into prison or the regular probation laws, you had to do something to graduate from that degree.

Violence was one way to do it, hence the enhancement of a state jail felony to a third degree felony if the defendant used or exhibited a deadly weapon. But that didn't mean that the probation laws no longer applied. They apply just like for any third degree felony.

John,

Thanks for the imput, but I still don't understand the issue in terms of the statutes. Where is it written in the statute that a jury is authorized to recommend probation upon conviction of a state jail felony with a deadly weapon finding?

Just because a state jail felony is punished as a 3rd degree felony does not mean a defendant is eligible for probation from the jury. As you know better than I do (the judge was waiving your book at me), there are many exclusions under our law that preclude jury recommended probation upon conviction by a jury of a felony punishable as a 3rd degree felony, i.e. previous conviction of a felony and conviction of aggravated perjury under aggravating circumstances, i.e. Art. 38.22, Section 4, Tx.C.C.P. In the latter case, neither a judge or a jury can ever give probation.

Article 42.12, Section 4(d)(2) provides that a defendant is not(!) eligible for probation from a jury if sentenced to confinement under Section 12.35, Tx.P.C. - surely the legislature knew that 12.35 had 3 subsections (a), (b) & (c). The legislature cut some slack for the felons in Art. 42.12, Section 15(a) but limited to that slack to state jail felonies under 12.35(a) where the confinement assessed is 180 days to 2 years in the state jail.

The fact that the state jail felony is punished as a 3rd degree felony does not mean that it not a state jail conviction - see Section 12.35(c), Tx.P.C. The section says "An individual adjudged guilty of a state jail felony ..."

Logically, the jury should be able to consider and recommend probation if they could were the defendant convicted of murder instead of criminally negligent homicide, but as I well know ... criminal law is not always logical.

It is going to take a very "painful" spin by the appellate courts to let a judge or jury grant probation with 42.12, Section 4 says no probation from a jury when convicted of a state jail felony under all provisions of 12.35 and 42.12, Section 3g says no probation from a judge in there is an affirmative finding of a deadly weapon and 42.12, section 15(a) limits judges to 12.35(a) offenses after a conviction for a state jail.

I hope the legislature clears this up if I'm not reading this right or have overlooked something. Help!

We've had an identical case here. Defendant went to the pen. Haven't seen the appellate brief yet.

The plain language of the statutes dictates the result--defendant is ineligible. The defense argument is that the result is absurd, and that they should get to go behind the statutory language to legislative history. The legislative history, according to John Bradley, would require to the court to construe 42.12, Sec. 4(d)(2) ("term of confinement under Sec. 12.35") to mean "a term of confinement under Sec. 12.35(a)." But, construing courts are not supposed to add language by their construction. The other argument is that Sec. 12.35(c) should be construed as converting the conviction from State Jail to Third Degree. The language of Sec. 12.35(c), though, is too specific for that since it indicates that you are guilty of state jail but punished more severely. This reading would also then allow us to use the conviction for "real" enhancement later on, which the defense would not like, right? Thus, while history may support what the defense wants, they're just not entitled to it under the law of statutory construction.

I think you have to analyze the sections separately. The leg. had good reason to discourage jury punishment of state jail felonies through 42.12 Sec. 4--save time since it is often automatic probation. The leg. had good reason to prohibit judges from awarding probation to defendants who use deadly weapons. The fact that these two policies combine in a way that upsets someone doesn't mean you throw out the whole statute. It also doesn't mean the statute is unconstitutional. The defendant could have gotten probation in this case by making a deal with the prosecution, going open to the judge in hopes of deferred, or by winning the deadly weapon issue at trial. We shouldn't let the judge torture the law to get him probation.

Appeal the sentence or seek mandamus. The defendant's remedy is to call his rep or senator and ask them to fix the law (if it is broken). Our remedy is to get the Leg. to make criminally negligent homicide a third degree felony. Save state jail punishment for "non-violent" offenders--someone died in this case. Seems violent to me.

Is it such a stretch to say that criminally negligent homicide, when enhanced to a third degree felony by alleging a deadly weapon, causes a defendant to be sentenced to a term of confinement under section 12.34 (third degree felony) rather than 12.35 (state jail felony)? Come on. Can't we all just get along?

If you want to see the Court of Criminal Appeals (particularly Judge Johnson) stretch the language of 12.35 to say whatever they want it to say, check out Campbell v. State 49 s.w.3d 874. They can and will add language, change language, and rewrite the language so that it complies with what they believe the statute should say regardless of what it actually does say.
My guess is that the CCA will agree with John that the intent of the statute would be subverted by a literal reading of it. In other words, the legislature is too dumb to articulate its real intent by writing statutes. I may be in agreement with the Court on that one.

It is a little tempting to say the Legislature is too stupid to say what it means, but, having been there when this stuff got written, I have to say, it ain't that easy.

The 73rd Legislature was attempting something fairly radical for its time: the creation of a brand new punishment range (state jail felony) and accompanying enhancements. The negotiations on how and who to enhance was very complicated. And it all had to go through two sides of the Leg, various commitees, and lots of amendments. All in all, they didn't do too bad a job.

But their intent was very clear. They wanted to isolate nonviolent offenders from expensive prison cells. They wanted to avoid enhancing them all back into prison cells. It wasn't always pretty, but it did make some sense.

I guess my meaning was lost in what I wrote (sound familiar?). My complaint is with the Court of Criminal Appeals rewriting the plain language of the statute so that it comports with their desired result, not the legislature that wrote (I believe) what they meant. In Campbell, the Court clearly overstepped their constitutional authority in construing an unambiguous statute. The Court simply did not like the result of a plain reading of the enhancement portion of 12.35. So they rewrote it.

I believe that Campbell shows us a Court that will interpret 12.35 to result in the lightest punishment possible. Thus, the Court will find that probation is available in this situation. Of course I thought that I made sense with my last post, so what do I know.

I agree that the appellate courts will probably find a way to twist and spin to get a defendant such as mine eligible for probation, but ... perhaps it can be put on the list to be cleaned up next time we let our learned legislators come to Austin.

Martin, tell Frank Long and the other gray eagles of the criminal bar that Steve Hughes says "Hi" and don't let them tell you any wild tales about me ...

But Campbell construes "felony" and "state jail felony" to have different meanings rather than saying that 12.42(a)(2) should have the words "non state jail" added in front of the word "felony." That is an important distinction. The term "Section 12.35" is not vague or ambiguous. Calling it Section 12.34 or adding "(a)" goes beyond what a court is supposed to do under Boykin.

No one can challenge John Bradley's reading of legislative history and intent. The question is whether you get to use it. I'm not saying that an appellate court might not, in the interest of "fairness," construe the statute in favor of the defendant and DNP its opinion. I just don't think a court properly applying the construction rules can reach the defendant's desired result. You can interpret the words that are there, not add, delete or change them to another word.

You can if the result would otherwise be absurd. Denying probation eligibility to an otherwise eligible third degree felon makes no sense in light of the legislative history. The rules of statutory construction are just rules. They are not inflexible. In fact, the Government Code contains rules of statutory construction that encourage the use of legislative intent, regardless whether there is an ambiguity.

I've already heard them all.

quote:

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Except for things like third-time theft and DWI, an enhanced penalty is not treated as upgrading the degree of the offense(or creating a separate offense), it merely changes the applicable range of punishment. Still, in my judgments I state the degree of the offense as though it had changed. No one has been objecting and I figure it will impress the parole board differently.

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Well, the objection has now been made, and at least for purposes of what should be stated in the judgment I guess I have been doing it wrong. Mack My new question is whether the enhanced state jail offense (i.e., the ones I have been calling 3rd and 2nd degrees) can be used to enhance future non-state-jail offenses. That issue seems to be the one of real concern to Mack. Otherwise I cannot figure out why it was so important to him to get the language in the original judgment changed.

Wonder about this and my Campbell (11-06-00041) issue on PDR. There the sentence was enhanced under 481.134(d). I believe the way the statute reads it is a third degree felony, not a state jail felony. Hopefully, the issue is different because the statute also has similar language to 12.42 under 481.134(b).

I do not think the decision will impact the issue of how to classify a 12.35(c) or 481.134(b)offense (except for how it is decribed in the judgment).
My concern is that when the judgment states the conviction is "for" a "state jail felony" it immediately becomes confusing why the sentence is for time in the institutional division. But, more importantly, I believe this recitation in the judgment is a mere prelude to a defendant arguing that such conviction is not available for enhancement under Sec. 12.42 (a)(3), (b), or (c)(1). To my knowledge, that issue has never been addressed. But, in light of the restrictive interpretation of "felony" as used in those statutes, it appears there is a problem waiting to happen; and I do not understand art. 42.01 sec. 1(14) to clearly require what the Second Court says. I realize that the designation in the judgment of the degree of the offense would probably not be controlling on this point, but the Mack rule at least serves to confuse the matter and perhaps strengthen the argument.

Furthermore, I believe Mack means all judgments should reflect only the "base offense" as "the degree of offense for which the defendant was convicted." I have always listed the "enhanced status" of an offense when preparing a judgment with the idea that this was both more accurate and that it might somehow influence any parole decision.

What has been the practice of everyone else in complying with art. 42.01 sec. 1 (14)?