I have a case that has two prior pen trips and we enhanced under 12.42. The defense attorney wants to go open to the Judge and ask for probation. Is that possible? I would think not since the minimum would be 25 years and he has been convicted of a felony. Any advice or guidance would be appreciated.

Defendant could plead open and ask for deferred adjudication, assuming offense is eligible. Only way to avoid that is to refuse to waive jury and get a conviction.

Will defendant be pleading true or not true to enhancements?

If true, and there is a conviction, then Judge must find true and begin punishment at 25 years. Probation is available only if sentence 10 years or less.

If D pleads not true, then, theoretically, judge could find insufficient evidence to support enhancements and make negative findings, leaving punishment range within amount available for a probated sentence. That also assumes underlying offense is probation eligible.

For further discussion, read chapter on Community Supervision in The Perfect Plea.

You could condition your waiver of jury trial upon defendant pleading true to enhancements.

Thank you for the help!