I have been preparing for a non-jury trial with a pro se defendant that starts in the morning....I just realized today that he has not made application for probation, nor do I expect him to. I have briefly looked for the provision that requires same but have been unable to put my finger on it....in all the years I have been doing this, no one has ever failed to file a written application prior to trial. if he fails to do so, can the judge grant probation if he finds the defendant guilty?
Any help would be appreciated.

An application for probation only needs to made if a defendant is to seek probation from a jury. If he does not, the judge assesses punishment by default. Since this is a TBC, no application is required. I don't have the site, but it's in the front of 42.12 somewhere.

The provision is art. 42.12 sec. 4(d)(3) and sec. 4(e). There is no corresponding requirement in sec. 3 (judge ordered straight probation) or sec. 5 (deferred adjudication).

ah ha! Thanks guys! no wonder I could not find it for a non jury case.....it seemed to me that the judge was not prohibited from granting it if the case was tried to the court, but I have never run into that before....as always this forum is a life saver....and being tried to a non-atty judge always makes things more interesting.

See also CCP 37.07, sec 2(b).