Community Supervision – Deferred Adjudication Probation…

As I wrote in my July 14 post, under the provisions of Article 42.12 of the Texas Code of Criminal Procedure, trial courts are given the authority to place a person on community supervision, also known as probation, in lieu of incarceration. I noted that there are two types of community supervision commonly known as straight probation and deferred adjudication probation.

The topic of this post is deferred adjudication probation.

Article 42.12 §5(a) states:

… when in the judge’s opinion the best interest of society and the defendant will be served, the judge may, after receiving a plea of guilty or nolo contendere, hearing the evidence, and finding that it substantiates the defendant’s guilt, defer further proceedings without entering an adjudication of guilt, and place the defendant on community supervision.

This provision applies when a person enters a plea of guilty or nolo contendere to the trial court. A person cannot receive deferred adjudication probation from a jury.

Under deferred adjudication probation, the court would defer the proceedings without a finding of guilty and place the person on community supervision for a certain period. In most felony cases, the maximum length of the probation period is ten years. While on probation, the person would be required to comply with certain terms and conditions.

If the person successfully completes the probation period, he would be discharged from probation, the charges filed against him would be dismissed, he would not have a final conviction on his record and he would never serve time in prison.

If it is believed that the person has violated a condition of probation, the State may file a motion to revoke community supervision. The court would then conduct a hearing to determine if the person in fact violated a condition of community supervision. If the court determines the person did violate a condition of probation, the court may revoke the community supervision and impose sentence anywhere within the range of punishment prescribed by law.

The four most important points to remember about deferred adjudication probation are: (1) the person avoids serving time in prison if he successfully completes the probation term; (2) the person will not have a final conviction on his record if he successfully completes the probation term; (3) the charges filed against the person will be dismissed if he successfully completes the probation term; and (4) If the person violates a term or condition of probation, the Court may find him guilty and may impose sentence anywhere within the range of punishment prescribed by law.

Possession of Controlled Substance Charge Dismissed…

In May of 2011, one of my clients was stopped in Hartley County for speeding. He was headed north on US Highway 87. (DPS officers in Hartley County & Dallam County have stepped up their efforts at drug interdiction in the last year or so along Highway 87 which is a major route between the high plains of Texas and Colorado.) During the course of the traffic stop, the state trooper asked for consent to search the vehicle. My client denied consent to search his vehicle. The state trooper then called for a drug-sniffing canine to do a free-air search of the vehicle. According to the dog handler, the dog hit on the vehicle. The officers then conducted a search of the vehicle and found edibles containing Tetrahydrocannabinol (hashish) and a few mushrooms containing Psilocybin.

My client was arrested and subsequently charged with two counts of possession of a controlled substance.

We filed a motion to suppress alleging that the officer did not have reasonable suspicion to detain my client until a drug dog arrived on the scene. We also challenged the purported hit by the drug dog. After an evidentiary hearing on the motion to suppress, the Court granted our motion and suppressed all evidence in the case. In July of this year, the State dismissed the criminal charges filed against my client.

Community Supervision – Straight Probation…

Under the provisions of Article 42.12 of the Texas Code of Criminal Procedure, trial courts are given the authority to place a person on community supervision, also known as probation, in lieu of incarceration.

There are two types of community supervision commonly known as straight probation and deferred adjudication probation. The topic of this post is straight probation.

Article 42.12 §3(a) states:

A judge, in the best interest of justice, the public, and the defendant, after conviction or a plea of guilty or nolo contendere, may suspend the imposition of sentence and place the defendant on community supervision or impose a fine applicable to the offense and place the defendant on community supervision.

Article 42.12 §4(a) states:

A jury that imposes confinement as punishment for an offense may recommend to the judge that the judge suspend imposition of the sentence and place the defendant on community supervision. A judge shall suspend the imposition of sentence and place the defendant on community supervision if the jury makes that recommendation in the verdict.

These provisions apply when a person is convicted of a crime by a jury or by the court, or when a person enters a plea of guilty or nolo contendere.

Under straight probation, the person would be found guilty and therefore have a final conviction on his record. In a felony case, the person would be sentenced to a term of confinement in prison. However, imposition of sentence would be suspended and the person would be placed on community supervision for a certain period. In most felony cases, the maximum length of the probation period is ten years. While on probation, the person would be required to comply with certain terms and conditions.

If the person successfully completes the probation period, he would be discharged from probation and would never serve time in prison.

If it is believed that the person has violated a condition of probation, the State may file a motion to revoke community supervision. The court would then conduct a hearing to determine if the person in fact violated a condition of community supervision. If the court determines the person did violate a condition of probation, the court may revoke the community supervision and impose the original sentence.

The two most important points to remember about straight probation are: (1) the person avoids serving time in prison if he successfully completes the probation term; and (2) the person will have a final conviction on his record.