1. What is the consensus as far as the ultimate disposition for cases that are taken into account in sentencing under Texas Penal Code sec. 12.45? If the case taken into account is an indicted case, does it have to ultimately be dismissed to have a final disposition, or does it automatically "go away" once it has been 12.45'd into the case that is plead?
2. Should a judgment reflect that the judge took a case into consideration under 12.45? If not, how do you record/memorialize that the defendant admitted his guilt to an unadjudicated offense so that it could possibly be used as punishment evidence in the future?
I'm trying to revamp some local procedures and I want to do this the best way possible, as well as the legally correct way without reinventing the wheel. Thanks.
Posts: 38 | Location: Nacogdoches, Texas, USA | Registered: March 21, 2001
The judgment in the case in which a defendant requests consideration of his unadjudicated conduct should reflect such request and the court's agreement to do so. Not only does this memorialize the fact for the benefit of the prosecutor/court in which the unadjudicated conduct would otherwise presumably be prosecuted, but I think such reference could conceivably affect any future parole eligibility determination. As you note, it might also give some future prosecutor a better chance of getting usable punishment phase evidence, since the CCH will likely just reflect an arrest and no disposition for the 12.45 offense. If the unadjudicated conduct has been indicted, but already "punished" in another case, then it makes sense that the indictment should be dismissed. Presumably if it were ever set for trial, the defendant enters a plea in bar (another reason why the first judgment should memorialize what has happened). If it isn't dismissed, isn't it considered a pending case?
In our 12.45 cases, I always request a copy of the judgment from the other prosecutor,in order to be sure the defendant did acknowledge guilt, and received whatever punishment was contemplated. If the judgment says nothing about the court taking our case into consideration, then I'm not sure there's any bar raised. After all, it is ultimately the decision of the judge (which should be reflected in his judgment) whether such a bar comes into existence. I would also include as much info as possible about the "other" offense in the judgment: at least the name of the offense, and either the venue and date of the offense or "as alleged in Cause No. ___ in the _____ Court of _____ County".
[This message was edited by Martin Peterson on 12-12-01 at .]
In Williamson County we always include language in the felony judgments that the defendant admitted guilt to the other offense and it was taken into consideration pursuant to section 12.45. And my personal practice is to actually make the defendant admit guilt to the other offense on the record.
My opinion has always been that the 12.45 disposes of the case and that no dismissal should be necessary, but in practicality the clerk's office gets a dismissal because they will not show the case as disposed of otherwise.
But, I recently heard that some fairly recent changes to the expunction statutes might then allow the case that was 12.45'd to be expunged. This seems ridiculous in light of the fact that the defendant admitted guilt, but look at the statute and see what you think.
Posts: 172 | Location: Georgetown, Texas, USA | Registered: June 05, 2001
You shouldn't wait for some appellate judge to decide what a 12.45 means. Dictate the conditions of including an offense under section 12.45, Penal Code, by making it an explicit part of any plea agreement.
We put in every single plea agreement, the express requirement that the defendant admit his guilt to the additional offense and that he waive the right to any expunction of that record. Then, we put the 12.45 into the judgment and dismiss the complaint, information, or indictment. But we put in the motion to dismiss that the defendant has waived any right to expunction. That way it stays on the record and is available for any future prosecution.
Our position is that the defendant can agree to anything in a plea agreement.
I agree with JB. And I'm reviving the thread because it's Friday afternoon, I'm bored (er, I mean, I'm really really hard at work...), no one else is posting, and DW thinks that some other thread is the oldest around.
Someone get me a 12-step program for this website. Please.
Posts: 1089 | Location: UNT Dallas | Registered: June 29, 2004
We put it in the judgment but we also have a separate 12.45 motion and order. It is signed by the defendant admitting his guilt; by the prosecutor having jurisdiction over the charge agreeing to the 12.45 and an order is signed by the Court granting the 12.45 motion and barring further prosecution. We do not do a dismissal.
