As the below clip from the Houston Chronicle shows, a jury convicted an officer of criminally negligent homicide and presumably made a deadly weapon finding, because the range of punishment was announced as 2-10 years. The article also indicates the jury recommended probation. My questions:

1) Can the jury even consider probation for a state jail felony?
2) Even if a jury can consider probation, does the jury decide the term of probation?


Jury recommends probation for Carbonneau
By ANDREW TILGHMAN
Copyright 2005 Houston Chronicle

A former Houston police officer who shot an unarmed 14-year-old boy to death should serve almost a decade on probation, but no time in prison, a jury decided this afternoon.

Without explanation, jurors recommended that Arthur J. Carbonneau, 25, be sentenced to nine years, six months and 14 days on probation for the killing of Eli Eloy Escobar II.

Article 42.12, Sec. 4(d)(2) specifically provides that a jury cannot probate a state jail felony. A judge cannot probate a defendant if the jury makes a deadly weapon finding. See Article 42.12, Sec. 3g(a)(2). We've had a couple of these situations arise in criminally negligent vehicle homicides. Here's an opinion discussing the issue on the merits and in the context of ineffective assistance of counsel. Goodrich v. State

Basically, depending on how criminally negligent homicide is charged or how the jury renders a verdict, it can be an offense where the defendant cannot receive probation. How do you like them apples? I think the solution is make criminally negligent homicide a 3rd degree felony--it is not like the other state jail offenses--you have a dead victim.

Kind of interesting since criminally negligent homicide before 9/1/94 was a Class A misdemeanor. I'd like to hear some opinions on what people think the punishment range should be and why.

John, I know that I may be taking the bait you throw out as chum (sp)periodically but doesn't 42.12 Sec 4 apply to all cases? Doesn't the jury set the number of years for the sentence to ID or the SJ facilty and once they recommend probation the number of years and the terms of probation are totally up to the Judge?

How does CCP Art. 42.12, Sec. 4(d)(2) prevent a jury from probating a state jail felony? The defendant was not sentenced to a term of confinement; he was given probation.

Well, now maybe I do sometimes ask a rhetorical question or two, but ain't it fun to see the answers?

Before 9/1/93, the jury decided probation and the number of years of supervision. Then, the Leg amended CCP art. 42.12 (for about the millionth time) and limited the jury to deciding the issue of probation only, leaving the period of supervision to the judge.

And, then, beginning 9/1/94, the state jail felony kicked in. At first, it was all automatic probation, so there wasn't any decision on probation for anyone to make. Therefore, sentencing was done by the judge.

Then, the following session, the Leg made probation automatic only for those lucky first-time felons. A judge or jury could decide the time of confinment, but the judge would decide probation and period of supervision.

Then, the following session, the Leg made SJF probation discretionary for everyone, but left confinement to judge or jury and probation and period of supervision to judge only.

Meanwhile, the appellate courts began to get in the game. Their special reading skills led some of them to say that the jury couldn't decide probation even when the SJF was enhanced to a 3rd degree felony by a deadly weapon finding.

Now, I have to tell you that was news to some of us. A definite unintended consequence.

So, I found it kind of amazing that I was reading about a case in which the defendant got convicted of a SJF, enhanced to a 3rd degree felony, probated by a jury, which also decided the period of supervision.

I guess anything can happen by procedural default.

Lots of judges still charge the jury to set the length of the probation. I've talked to quite a few prosecutors who were surprised to learn that the jury only decides if, not how long.

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Meanwhile, the appellate courts began to get in the game. Their special reading skills led some of them to say that the jury couldn't decide probation even when the SJF was enhanced to a 3rd degree felony by a deadly weapon finding.

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I don't know if in that particular case the judges looked to legislative history but I can't resist the chance to post this quote from Scalia. He and Breyer had a "discussion" at American University School of Law which C-Span broadcast last weekend. To paraphrase, he said that when Judges look to legislative history, it is is the judicial equivalent of surveying the guests at a party to see if they recognize anyone.

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Originally posted by Ken Sparks:
How does CCP Art. 42.12, Sec. 4(d)(2) prevent a jury from probating a state jail felony? The defendant was not sentenced to a term of confinement; he was given probation.

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Well, 42.12, Sec. 4(a) says the jury imposes confinement, but "recommends" probation. 42.12, Sec. 4(d)(2) says confinement under section 12.35--state jail--cannot be probated. I'm not saying its artfully drafted, I'm just saying when you put it together, it looks like no jury probation for state jails. Throw a deadly weapon into the mix, no probation at all for state jails.

As to misdemeanor homicide, had I been a legislator, I wouldn't have voted for that in 1973. Two to ten seems like a more appropriate penalty range for the criminally stupid killer. My two cents. Remember, agg assault started as 3rd degree, got moved to second, and now they want to bump certain agg assaults to 1st degree. And those are for people that live.

Do you think that absolutely forclosing probation for negligent homicide, while allowing it for all the(non-capital) reckless or intentional homicides raises any constitutional issues?

I don't see what the constitutional issue would be. As far as I know, there is no constitutional right to probation. The legislature can make some offenses probation eligible, and others not-eligible, as long as they have a rational basis for the distinction.

If a prosecutor wants probation to be available for criminally negligent homicide, he need not allege the deadly weapon in the indictment and the defendant can elect judge punishment. If criminally negligent homicide pops up as a lesser included offense, a defense lawyer can try to keep probation in the mix by asking for a special issue on deadly weapon and trying win that issue.

Wouldn't proportionality or a similar argument be the basis for a constitutional issue? What reasonable basis is there for allowing a jury to recommmend probation for murder or manslaughter but not for a lesser offense of negligent homicide?

The rational basis for not letting jurys recommend probation for state jail cases was probably to encourage defendants to waive jury punishment for small value cases. Supply your own rational basis for the prohibition on judges granting probation on deadly weapon cases. It is the combination of the two that leads to the result. I just don't see an equal protection claim succeeding.

Proportionality is a more intersting issue.

[This message was edited by John Rolater on 01-21-05 at .]

The precise contours of the principle (that the punishment for similar offenses must not be grossly disproportionate) are described as being "unclear". But, even the Supremes say the issue "is applicable only in the "exceedingly rare" and "extreme" case". Thus I say, so what if the Texas Legislature chooses to put criminally negligent homicide in a category of offenses for which the suspended sentence law does not apply (unless the Defendant chooses to waive the right granted to other defendants to have a jury assess punishment). There is obviously no constitutional right to have a jury assess punishment. (d)(2) is either constitutional as to all state jails or it is unconstitutional in its entirety. Besides the decision to suspend impostion of a sentence is not really a determination of the sentence (penalty for the offense). Lockyear v. Andrade is inapplicable. The jury's recommendation in the Houston case should be disregarded. It cannot be given effect. Maybe the Defendant is entitled to another jury determination of his punishment as a result, but the Court is prohibited by law from entering a suspended sentence. See Judge Womack's opinion in Williams, 65 S.W.3d at 664. The Defendant can be denied the privilege of a suspended sentence on whatever terms the Legislature may choose.