If someone is on TYC parole and gets popped with a handgun (at a quarter pound coke deal, i might add), is he a felon in possession of a firearm? my thought is no since he is not "convicted of a felony" but i'm not sure.

thanks in advance, abby

Abigail
Parker County

You need a definition of felony that would include a TYC trip. Except for the special definition over in felony enhancements (Chapter 12 of Penal Code), I don't know of any such statute. So, not felon in possession of firearm.

You could always ask the Leg to expand the general definition of a felony to include a trip to TYC. That would also solve the problem of probation eligibility for a defendant who commits a felony as an adult while having been sent to TYC as a juvenile.

Family Code 51.13 says "Except as provided by Subsection (d), an order of adjudication or disposition in a proceeding under this title is not a conviction of crime."

It goes on to say "An adjudication under Section 54.03 that a child engaged in conduct that occurred on or after January 1, 1996, and that constitutes a felony offense resulting in commitment to the Texas Youth Commission under Section 54.04(d)(2), (d)(3), or (m) or 54.05(f) is a final felony conviction only for the purposes of Sections 12.42(a), (b), (c)(1), and (e), Penal Code."

[This message was edited by WHM on 12-02-08 at .]

well that's exactly the situation that i have. i get to vd on probation, as he's never before been convicted of a 'felony' and also a minimum 15.

Abigail
Parker County

Well, if the minimum sentence is 15 years, then he is not probation eligible. No defendant, regardless of criminal history, is eligible for probation unless the sentence is 10 years or less.

And, of course, you will want to give notice of intent to seek a DW finding, as that will change parole eligibility.

[This message was edited by JB on 11-25-08 at .]

quote:

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Originally posted by JB:
Well, if the minimum sentence is 15 years, then he is not probation eligible. No defendant, regardless of criminal history, is eligible for probation unless the sentence is 10 years or less.

[This message was edited by JB on 11-25-08 at .]

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I can only assume we are looking at adult charged w/ 1st degree felony and has a prior TYC trip? Then you do have to voir dire on probation as the jury could find the TYC allegation "not true." Just because they don't want to send the defendant to prison or think 15 is too long.

Saw a judge to it in a case where the defendant charged w/ 3rd degree felony w/ 2 prior pen trips looking at 25 to life. Found the two priors "not true" and sentenced for a short period in TDC.

The issue is whether a rational jury, based on the evidence anticipated in the case, could give probation. If there truly is no issue on the prior and you really do expect to prove it, then you should not concede that probation is a proper subject of voir dire. I can certainly see that you might want to cover it, just in case, but you should make it clear to the jury that they have a duty to make the finding if the evidence presented supports it. Judges, on the other hand, don't always feel like they have to follow the law.

In addition, at arraignment, the defendant will be given an opportunity to indicate whether he will plead true or not true to the enhancement. If he indicates he will plead true, then you have an additional reason not to voir dire on probation, as the judge should be instructing the jury to find the allegation true and set punishment 15-life.

Unfortunately, in my jurisdiction they only plead not guilty to the charge and nothing else is asked. So, unless proving the records is a given, as you indicated, I would still cover the probation issue. I think, as in all things, it depends on your jurisdiction and knowing how your juries will react. Here, depending on the current offense and what the prior was for, it might be necessary.