Bail…

Under the provisions of Article 1, Section 11 of the Texas Constitution and Article 1.07 of the Texas Code of Criminal Procedure, all persons accused of a crime (except capital crimes) are eligible to post bail.

Article 17.15 of the Code of Criminal Procedure states:

The amount of bail to be required in any case is to be regulated by the court, judge, magistrate or officer taking the bail; they are to be governed in the exercise of this discretion by the Constitution and by the following rules:
(1) The bail shall be sufficiently high to give reasonable assurance that the undertaking will be complied with.
(2) The power to require bail is not to be so used as to make it an instrument of oppression.
(3) The nature of the offense and the circumstances under which it was committed are to be considered.
(4) The future safety of the victim of the alleged offense and the community shall be considered.

The 8th Amendment to the United States Constitution states:

Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.

Texas courts recognize that the primary object or purpose of bail is to secure the presence of the defendant in court upon the trial of the accusation against him. Ex parte Vasquez, 558 S.W.2d 477, 479 (Tex.Cr.App. 1977). While bail should be sufficiently high to give reasonable assurance that the undertaking will be complied with, the power to require bail is not to be used so as to make it an instrument of oppression. Ex parte Bufkin, 553 S.W.2d 116, 118 (Tex.Cr.App. 1977).

If a person is unable to post bail, it has been my experience that, in most cases, a bond reduction can be negotiated with the State. The trial court must approve the negotiated bond reduction. If the State will not agree to a bond reduction, the next step is to file a Writ of Habeas Corpus with the trial court.

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.

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.

No Country for Innocent Men…

Timothy Brian Cole was 26 years old when he was wrongfully convicted of rape in a Lubbock, Texas, courtroom in 1986. At the time of the rape, he was a student at Texas Tech University – Texas Tech had an enrollment of approximately 22,000 students – About 500 were African-American. Timothy was one of the 500.

Timothy died in a Texas prison on December 2, 1999, while suffering an asthma attack. At the time of his death, he had served 13 years of a 25 year sentence for a crime he did not commit. He was 39. He was finally exonerated in February of 2009. DNA evidence showed him to be innocent. He was pardoned posthumously in March of 2010.

Beth Schwartzapfel wrote a wonderful article entitled “No Country for Innocent Men” about this tragic failure of the Texas Criminal Justice System. It appears in Mother Jones. This is a must read.

To read more about Timothy’s case see The Innocence Project.

Texas Ranks Third in Exonerations…

According to a recent article in The Texas Tribune, the state of Texas comes in third behind Illinois and New York in the number of exonerations in the United States since 1989. This is according to data compiled by Mother Jones. You should read the full Texas Tribune article.

You should also read the story in Mother Jones to see how Texas Governor Rick Perry was forced to pardon an innocent man years after he had died in a Texas prison. The story of Timothy Cole and his struggles with the Texas criminal justice system is tragic indeed.