Where adjudication of guilt is being deferred, can the court properly take into consideration unadjudicated conduct pursuant to Sec. 12.45 PC even though there is no "sentencing hearing"? This could become important in light of the "lawfully" requirement in 12.45(c). I always try to include mention of the other conduct for which a defendant admitted his guilt in our judgments since I have assumed that might affect the decision of the BPP. But, now I wonder whether that is proper when the only sentencing hearing occurs under art. 42.12 sec. 5(b) and the defendant does not admit his guilt at that point. Is it your common practice to "12.45" another offense even where the recommended "punishment" is a deferred adjudication? If so, when is the defendant required to admit his guilt of the unadjudicated conduct?

We have sometimes used a separate form which the defendant signs and is included with the paperwork in the plea. If you get him to admit his guilt in writing at the plea phase, he shouldn't be able to deny it later.

Although you do raise an interesting point--since 12.45(a) refers to the instant offense as one "of which he stands adjudged guilty," it would seem that the statute on its face would be inapplicable in a deferred adjudication, since in such as case the defendant is not "adjudged guilty" by definition.

Perhaps you should wait until the adjudication comes around before you attempt a 12.45 agreement. After all, the BPP won't be looking at it until after he's adjudicated anyway, right?

Martin, I am nowhere near the case law whiz you are but I recall several years ago stumbling on a case that said we could not do a 12.45 in a deferred adjudication case. We just made a record of it, but this was misdemeanor court and so we were more interested with the judge knowing than any BPP. Sorry for providing essentially nothing.

I looked in the annotations under 12.45 and didn't find anything--perhaps the case was unpublished.

I did think of another option: you ould probably accomplish the same objective by getting the defendant to sign a stipulation to the facts of the unadjudicated case. The stipulation would be admissible, and if you had to have a bar to prosectution as a carrot, just get the prosecutor on your unadjudicated case to agree to dismiss with prejudice in exchange for the stipulation.

Here is another thread regarding dismissals with prejudice, which I think would probably be binding in this kind of case.