In several courts I have previously practiced in, it was the procedure that some evidence had to be introduced in order to qualify a defendant for probation, in addition to a sworn probation application being timely filed. Most Judges I have practiced before stated that they felt that evidence almost had to be a defendant testifying, since a spouse or probation officer et al attempting to introduce the fact that a defendant had never been convicted of a felony offense would either be relying on hearsay evidence or that it would be speculation.

It has been quite some time since I have tried a felony defendant that was probation eligible, so in reviewing the case law, Palasota 460 sw2d 137, says that the mere filing of the sworn motion for probation is not sufficient, there must be proof of appellant's eligibility for probation in support of such sworn motion. Green, 658 sw2d 303, says that the jury need not be charged on the issue of probation in the absence of evidence before the jury to support the motion for probation, citing Walker 440 swd2 653, and that hearsay has no probative value, citing Alexander 587 sw2d 729 and Mendoza522 sw2d 898.

What is the policy and/or practice amongst the judges in your county? Does the defendant have to take the stand in order to qualify himself for probation? Is there a case I missed somewhere?

You are correct that the motion is not self-proving; there msut be testimony from some source that the defendant is eligible. Generally the defendant will testify. I have seen a parent provide that testimony.

Ken, do you make hearsay or speculation objections or do you let it slide and get on with it?

The common practice in West Texas seems to be that a relative (frequently mother) will testify. In a couple of cases, the investigating officer has been asked by the defense attorney "to your knowledge has the defendant ever been on probation"? I have not objected to such a question, especially since in the fairly small communities out here the officers and probation officers generally "know" if the defendant has a felony conviction. I would more likely object if the defendant was not a local. I cannot recall any judge accepting the motion as sufficient by itself.

The better objection may lie under Rule 602. I have never quite understood how someone can say they knew someone else so intimately that they know the person has never been convicted of a felony. But, apparently family members, at least, are so qualified.

My biggest complaint is that trial judges seem to allow testimony concerning lack of prior convictions at the guilt phase. Objections under Rule 608(b) or 402 seem not to work. I have not even succeeded in getting a limiting instruction under Rule 105 (assuming the testimony is addmissible under Rule 404(a)(1)(A)).

In my previous life in a larger jurisdiction, we generally objected as hearsay to the investigating officer testifying to this as his knowledge was usually based on TCIC/NCIC, not the most accurate source.

I tried a case last month where the defense put on no evidence of probation eligibility. After the defense had rested, I pointed this out to the judge and defense counsel at a quick bench conference and suggested I would have to remove the probation language from the jury charge. The judge allowed the defense to reopen and have her boyfriend, who had known the 40-ish defendant all of two years, to testify that she'd never been convicted of a felony. The judge told me at the bench she would overrule any hearsay objection.

The jury came back with 17 years.

Greg, it only happened one time and the testimony was framed in terms of the knowledge of the witness. I cross-examined the witness to show the lack of knowledge and how quickly someone can waive indictment and be placed on probation. Probation was not granted.