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Casenotes Supplementing
Baker's Texas Criminal Procedure Handbook

From recent decisions of the Texas Court of Criminal Appeals
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CCP Art. 42.12. Community Supervision (Probation)

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Sec. 1. Purpose (CCP Art. 42.12. Community Supervision (Probation))
  • It is the purpose of 42.12 to place wholly within the state courts the responsibility for determining when the imposition of sentence in certain cases shall be suspended, the conditions of community supervision, and the supervision of defendants placed on community supervision, in consonance with the powers assigned to the judicial branch by the Constitution of Texas. It is the purpose of 42.12 to remove from existing statutes the limitations, other than questions of constitutionality, that have acted as barriers to effective systems of community supervision in the public interest. Kesaria v State (April 5, 2006, PD-1802-04)


Sec. 2. Probation - definitions (CCP Art. 42.12. Community Supervision (Probation))
  • 42.12 creates several specific forms of community supervision for various circumstances and offenses -- such as regular (or "straight"), deferred-adjudication, shock, boot-camp, and state-jail-felony. Each type of community supervision has its own limitations and requirements. The special provisions for deferred adjudication in Section 5 prevail over provisions for regular probation in Section 3, the general definition of "community supervision" in Section 2(2) notwithstanding. State v Juvrud (March 22, 2006, No. PD-0006-03)


Sec. 3. Probation by Court - eligibility (CCP Art. 42.12. Community Supervision (Probation))
  • Article 42.12 does not confer upon a defendant a right to avoid being placed on community supervision. Under sec. 3 a trial court may place an eligible defendant on community supervision even if the defendant has elected to have his punishment assessed by the jury and under sec. 4 the jury does not recommend it. Ivey v State (February 11, 2009, PD-0552-08)

  • Under Article 42.12, a trial judge has fairly broad discretion to suspend the imposition of sentence when he deems it to be "in the best interest of justice, the public, and the defendant" to do so, Sec. 3(a). That discretion is not unfettered, of course. For example, the trial judge may not suspend a sentence of imprisonment that exceeds ten years, Sec. 3(e)(1), Nor may a trial judge suspend a sentence for certain particularly heinous crimes, Sec. 3g(a)(1), or for felonies involving the use or exhibition of a deadly weapon, Sec. 3g(a)(2). A trial judge must suspend the imposition of a sentence of confinement under circumstances in which a jury is authorized to, and does in fact, recommend it, Sec. 4(a). A jury may recommend community supervision even for some of the heinous offenses that a trial judge may not, Sec. 4(d)(5)-(7), and regardless of whether a deadly weapon was involved. But there are several limitations upon the jury's authority to recommend community supervision. First, as with the trial judge, the jury may not recommend community supervision in a felony case when it has imposed a sentence longer than ten years, Sec. 4(d)(1). Second, whereas the trial judge may place an otherwise eligible defendant on community supervision even if he has a prior felony conviction, a jury may not recommend community supervision unless the defendant files a timely sworn motion alleging that he has never been convicted of a felony offense and the jury makes an express finding that his allegation is true, Sec. 4(d)(3) and (e). Ivey v State (February 11, 2009, PD-0552-08)

  • Where def was placed on probation even though he was not eligible for probation, and trial court later revoked probation, def could not complain about the unlawful grant of probation in a habeas corpus application. To prevail in habeas, applicant must show harm. That is, he must prove by a preponderance of the evidence that the error contributed to his conviction or punishment. Def alleged that, had he known that the offense was one which is not eligible for probation, he "may not have plead [guilty] at all." This speculative assertion was insufficient to establish by a preponderance of the evidence that the illegal grant of probation contributed to the voluntariness of his plea. Indeed, since he received probation anyway, eligible or not, appeals court found it hard to imagine how the illegality of that probation affected the voluntariness of his plea. In any event, it certainly did not contribute to his conviction or punishment. Rather, it did just the opposite - detracted from his punishment by allowing him a suspended sentence when he was not entitled to one. He therefore failed to show that he was harmed by the illegal grant of probation. Ex parte Williams (April 11, 2001, No. 73,845)

  • Disavowing Heath v. State, 817 S.W.2d 335 (Tex. Crim. App. 1991), to extent it extended a doctrine of law regarding sentences to facts involving a probation order: The illegal granting of community supervision is not governed by a rule which applies to illegal sentences. No merit to contention that the illegal probation order rendered sentence illegal and, under Heath v. State, entitled def to habeas relief. Ex parte Williams (April 11, 2001, No. 73,845)

  • Community supervision is not a sentence or even a part of a sentence. Trial court’s unauthorized probation order did not constitute an illegal or void sentence, and was not grounds for post-convictin habeas relief. Ex parte Williams (April 11, 2001, No. 73,845)


Sec. 3g. Deadly Weapon Finding - plea bargains (CCP Art. 42.12. Community Supervision (Probation))
  • On application for writ of habeas corpus, relief denied: The trial court properly included an affirmative deadly-weapon finding in the written judgment. No merit to contention trial court following adjudication of guilt was bound by plea agreement at time of original guilty plea. Even if the parties purport to have a plea bargain as to the sentence to be assessed after adjudication, the trial court is not bound by the rules that apply to plea bargains at an original sentencing; regardless of whether the deferred adjudication was part of a plea bargain, recommended by the prosecution, imposed by the trial court without objection by def, or granted under other circumstances, once the trial court proceeds to adjudication, it is restricted in the sentence it imposes only by the relevant statutory limits Ex parte Huskins (November 2, 2005, No. AP-75,153)


Sec. 3g. Deadly Weapon Finding - notice (CCP Art. 42.12. Community Supervision (Probation))
  • Indictment for burglary of a habitation, alleging def committed or attempted to commit aggravated assault, was not defective for failure to give def notice there would be an issue of his use or exhibition of a deadly weapon. Aggravated assault may be committed in only two ways: (1) by causing serious bodily injury or (2) by using or exhibiting a deadly weapon during the commission of the assault. Each of these involves the use of a deadly weapon. The first way necessarily implies the use of a deadly weapon, which is "anything that in the manner of its use or intended use is capable of causing death or serious bodily injury." The second way specifies the use of a deadly weapon. Therefore an allegation that a defendant committed aggravated assault gives him notice that the deadly nature of the weapon alleged in the indictment would be an issue at trial and that the State may seek an affirmative finding on the use of the weapon. Blount v State (July 2, 2008, PD-1645-06)


Sec. 3g. Deadly Weapon Finding - rules (CCP Art. 42.12. Community Supervision (Probation))
  • On application for writ of habeas corpus, relief denied: The trial court properly included an affirmative deadly-weapon finding in the written judgment. No merit to contention that court following adjudication of guilt lacked authority to enter affirmative deadly-weapon finding. Ex parte Huskins (November 2, 2005, No. AP-75,153)

  • On application for writ of habeas corpus, relief denied: The trial court properly included an affirmative deadly-weapon finding in the written judgment. No merit to contention entry of finding in written judgment violated due process because def had legitimate expectation of serving sentence announced orally by the court. While it is true that, when the oral pronouncement of the sentence and the written judgment differ, the oral pronouncement controls, a deadly-weapon finding is not part of the sentence. While a deadly-weapon finding does affect a defendant's eligibility for probation and parole, it does not alter the range of punishment to which the defendant is subject, or the number of years assessed. A deadly-weapon finding may affect how the sentence is served, but it is not part of the sentence. Thus, a trial court is not required to orally announce a deadly-weapon finding at sentencing if the allegation of use of a deadly weapon is clear from the face of the indictment. In instant case indictment alleged use of a firearm, which is a deadly weapon per se, and when trial court properly admonished def and accepted his guilty plea to indictment, trial court necessarily determined that def used a deadly weapon in commission of offense. Ex parte Huskins (November 2, 2005, No. AP-75,153)

  • Because def could have raised claim on direct appeal (seeking removal of deadly weapon finding from judgment) he could not raise it by post-conv writ of habeas corpus, refusing to follow Ex parte Petty, 833 S.W.2d 145 (Tex. Cr. App. 1989). Ex parte Nelson (June 23, 2004, No. 74,818)

  • 42.12 sec. 3g(a)(2) authorizes a deadly weapon finding in pros for DWI, third offense, 49.09(b). Mann v State (October 3, 2001, No. 387-00)

  • Challenge to legal sufficiency of evid to support deadly weapon finding under 42.12 sec. 3g(a)(2) is not waived by failure to raise issue in trial court. Court of appeals erred in holding that def waived a claim of legally insufficient evidence as to deadly weapon finding by failing to preserve error in the trial court. Rankin v State (June 6, 2001, No. 542-00)

  • US Supreme Court decision in Bailey v United States, 516 U.S. 137 (1995) does not substantially affect the continued application of Patterson v State, 769 S.W.2d 938 (Tex. Crim. App, 1989) as precedent for the definition of “use” in Texas jurisprudence, regarding proof of deadly weapon issue under 42.12 sec. 3g. Gale v State, 998 S.W.2d 221 (May 19, 1999)


Sec. 3g. Deadly Weapon Finding - sufficiency of findings (CCP Art. 42.12. Community Supervision (Probation))
  • It was not error for trial court to enter deadly weapon finding where jury verdict* found def guilty of criminally negligent homicide "as included in the indictment" and indictment* expressly alleged def committed offense with "a deadly weapon." The verdict's reference to the indictment constituted a finding that the allegation was true. Entry of the finding was also proper because a verdict of homicide necessarily is a finding that a deadly weapon was used. Having found that def was guilty of homicide, the jury necessarily found that he used something that in the manner of its use was capable of causing, and did cause, death, meeting definition of deadly weapon in 1.07(a)(17)(B). Crumpton v State (December 9, 2009, PD-1634-07)

  • Where jury convicted def of included offense of manslaughter and charge* in application of law to facts on included offense recited indictment allegation of means "by shooting complainant with a deadly weapon, to-wit: a firearm," guilty verdict was suff to support entry of deadly weapon finding. Lafleur v State (May 21, 2003, No. 1447-02)


Sec. 3g. Deadly Weapon Finding - sufficiency of evidence (CCP Art. 42.12. Community Supervision (Probation))
  • State was not precluded from relitigating deadly-weapon issue on retrial under collateral-estoppel component of double jeopardy, where trial judge (as fact finder) explicitly found that def did use a deadly weapon during the commission of offense. It does not matter, for purposes of collateral estoppel, that the court of appeals found the evidence legally insufficient to support the original factfinder's determination. The court of appeals was not the original factfinder. Neither double jeopardy nor collateral estoppel bars the state from seeking a deadly weapon finding in any retrial of the case, because the original factfinder found for, not against, the deadly-weapon finding. Rollerson v State (June 27, 2007, PD-0962-06 and PD-0964-06)

  • In conv for poss of drugs with intent to deliver, evid was legally suff to support deadly weapon finding where officers searched house and found weapons and drugs in the house. No merit to contentions evid was insufficient to establish def used or exhibited a deadly weapon during the commission of offenses because: (1) he was handcuffed and sitting in the back of patrol car at the time of search and thus had no access to the guns; (2) there was no evidence that his fingerprints were on the guns or that the guns were registered in his name; (3) no evidence established the guns as deadly weapons, and because there was no one present at the time the weapons were found, the danger was only hypothetical; (4) the weapons were not located in close proximity to the drugs; 5) no drugs were discovered in the front bedroom or any area shown to be under def's exclusive control; and (6) there was no evidence of def's actual physical possession or control of the weapons. The drugs were found all over the house and two guns were found in a room inside a safe containing two large bottles of PCP and large amounts of cash. Although def was handcuffed rather than present in the house, def's presence is not necessary. It is the proximity of the weapons to the drugs, not the proximity of the guns to the defendant, that is significant. The real question is whether the weapons are found to have facilitated def's possession and intended distribution of the drugs. In this case, a rational jury could have found that def "used" the weapons in order to facilitate his possession and distribution of the narcotics. Coleman v State (September 29, 2004, Nos. 1466-03 & 1480-03)

  • In conv for failure to stop and render aid, evid was insuff to support deadly weapon finding, that def's truck was used or exhibited as a deadly weapon. Relevant time period for determining whether his truck was used and exhibited as a deadly weapon is the time period after X was hit by def's truck. The only evidence in the record concerning the manner in which the truck was driven after it hit X was Y's testimony that she and her husband drove 85 to 90 miles per hour when they chased def's truck. There was no evidence that def's truck was traveling at this speed. Y testified that the "chase" ended quickly and they caught up to the truck when it was stopped at a traffic light. This evidence indicates that the truck was moving at a speed less, perhaps significantly less, than Y and her husband. That the truck stopped at the traffic light also refutes any conclusion that the truck was driven dangerously. Moreover, the truck was found at an address just five minutes away from the accident scene. This supports Y's testimony that the chase ended quickly, reflecting that Y's husband must have been driving significantly faster than the truck. And Y testified that there was no other traffic on the road at the time and that the truck never left the roadway. Also, there was no evidence that anyone was actually endangered by the truck while it left the scene of the accident. No merit to state's contention that because X was hit and killed, truck was still a deadly weapon during commission of instant offense; the fact that the truck was driven in a deadly manner before the offense could assist the trier of fact if it were coupled with other evidence of how the truck was driven during the offense, but absent any evidence of the truck's use or exhibition as a deadly weapon during the offense, the evidence of how it was driven before the offense was not sufficient to sustain the deadly weapon finding. Judgment reformed to delete deadly weapon finding. Cates v State (April 16, 2003, No. 421-02)

  • 38.14, by its very terms, requires corroboration of accomplice testimony for a conviction only. This means there must be some non-accomplice evidence tending to connect the defendant to the crime, not to every element of the crime. The corroboration requirements are inapplicable to the testimony of accomplice witnesses regarding the use or exhibition of a deadly weapon. Vasquez v State (September 12, 2001, No. 1573-00)

  • In pros for engaging in organized criminal activity, evid was legally suff to support deadly weapon finding, where co-def shot and killed officer when officer attempted to interfere with commission of underlying burglary. The gun did not just happen to be in the car for some reason unrelated to the criminal activities. Co-def had deliberately armed himself for the purpose of using the weapon if necessary in order to accomplish the burglary and the commission of other related criminal activities. The fact that co-def had armed himself was made known to his co-conspirators with the shooting. Co-def's lack of reservation in firing to stop any interference with commission of the criminal objective was clear from the manner in which he killed the officer. (Co-def shot the officer point blank in the face as the officer looked into the passenger's side window. Then co-def got out of the car and shot the officer three more times.) Based on these circumstances, a trier of fact could rationally conclude def knew of co-def's intention to "use" the weapon during the continuing course of criminal activities. Court of Appeals erred by failing to consider def's knowledge of co-def's use of the firearm during the continuing course of criminal activities following the shooting. (Cause remanded for court of appeals to address challenge to factual sufficiency of evid on deadly weapon issue.) Dowdle v State, 11 S.W.3d 233 (Feb. 9, 2000)

  • Evid was suff to prove use of deadly weapon where there was uncontroverted testimony that drug traffickers use firearms to protect their drugs and drug proceeds. Police discovered def’s firearms within the same closet that they encountered a substantial amount of drugs and cash. Although the weapons were unloaded, the ammunition for the firearms was found in the same closet. There was also uncontroverted testimony that these weapons could be fully loaded and ready to fire within "seconds". This is not a case where a person's weapons are found in a gun cabinet or closet completely separate from the criminal enterprise; here, all of the weapons were virtually inches away from the contraband and its alleged proceeds -- one of the weapons was even inside the trash bag containing the marijuana. Nor is this a case where a person possessed a small amount of drugs, more akin to "recreational" drug use. Def possessed over 20 pounds of marijuana that had been previously divided into distribution-sized packages. Taking all of these facts into consideration, it would be rational for a fact-finder to determine that def "used" these weapons to facilitate the criminal possession of marijuana. Gale v State, 998 S.W.2d 221 (May 19, 1999)


Sec. 4. Probation from Jury (CCP Art. 42.12. Community Supervision (Probation))
  • Jury's initial verdict was not illegal or improper, as declared by trial judge, where jury assessed minimum period of confinement and recommend probation; was error to rule verdict was improper on basis that minimum period of probation for offense was greater than period of confinement assessed by jury. Jury initially returned verdict sentencing def to two years confinement with a recommendation for probation. Although minimum community supervision period for offense was five years, jury properly returned a verdict within the sentencing range of two to twenty years. Because supervision is not a part of the sentence, def could receive a sentence of two years, and trial judge could place him on community supervision for the minimum term of five years (or for any greater period up to ten years). Jury was properly instructed on the pertinent law, and it followed that law. Initial jury verdict of a sentence of two years with a recommendation of community supervision was legal, and trial judge should have accepted it. Mayes v State (September 14, 2011, PD-1633-10)

  • There is nothing in Article 42.12 that states, or even suggests, that jury must assess a sentence that equals the minimum period of community supervision, the maximum period, or any particular period in between. The jury does not determine the period of community supervision. It assesses the sentence and recommends that the trial judge place def on community supervision. Judge must follow that recommendation, but he has discretion to determine appropriate period of supervision, as long as it is within minimum and maximum statutory periods. Mayes v State (September 14, 2011, PD-1633-10)

  • No reversible error presented by sustaining state's objection to testimony by def's father of whether def had ever been placed on felony probation, resulting in def testifying and state impeaching def with evid of extraneous acts; def's father had already testified without objection that def had never been convicted of a felony, so def did not have to take the stand to establish his eligibility for probation; def could have declined to testify and relined solely on testimony he had already elicited from his father to support submission of probation issue. What def had to plead and prove was that he had never been convicted of a felony. Although a conviction in which (regular) probation is granted is still a conviction for this purpose, that does not mean def was required to elicit testimony specifically saying that he had never been on a felony probation. Testimony that he had never been convicted of a felony would suffice to show that. Def's use of county form to apply for probation, which included check boxes for both having "never been convicted of a felony in this or any other state" and having "never been placed on community supervision for a felony offense in this or any other state" did not support def's position, where it was not clear that he had to use that form; it was his motion for community supervision. Also, use of the form did not mean that, in order to establish eligibility for probation, he had to elicit testimony expressly stating that he had never been on community supervision for a felony offense. The jury charge contained no such requirement. It simply stated that the jury could recommend community supervision if it found "that the defendant has never before been convicted of a felony in this or any other state." Mansfield v State (March 17, 2010, PD-1263-08)

  • Article 42.12 does not confer upon a defendant a right to avoid being placed on community supervision. Under sec. 3 a trial court may place an eligible defendant on community supervision even if the defendant has elected to have his punishment assessed by the jury and under sec. 4 the jury does not recommend it. Ivey v State (February 11, 2009, PD-0552-08)

  • Under Article 42.12, a trial judge has fairly broad discretion to suspend the imposition of sentence when he deems it to be "in the best interest of justice, the public, and the defendant" to do so, Sec. 3(a). That discretion is not unfettered, of course. For example, the trial judge may not suspend a sentence of imprisonment that exceeds ten years, Sec. 3(e)(1), Nor may a trial judge suspend a sentence for certain particularly heinous crimes, Sec. 3g(a)(1), or for felonies involving the use or exhibition of a deadly weapon, Sec. 3g(a)(2). A trial judge must suspend the imposition of a sentence of confinement under circumstances in which a jury is authorized to, and does in fact, recommend it, Sec. 4(a). A jury may recommend community supervision even for some of the heinous offenses that a trial judge may not, Sec. 4(d)(5)-(7), and regardless of whether a deadly weapon was involved. But there are several limitations upon the jury's authority to recommend community supervision. First, as with the trial judge, the jury may not recommend community supervision in a felony case when it has imposed a sentence longer than ten years, Sec. 4(d)(1). Second, whereas the trial judge may place an otherwise eligible defendant on community supervision even if he has a prior felony conviction, a jury may not recommend community supervision unless the defendant files a timely sworn motion alleging that he has never been convicted of a felony offense and the jury makes an express finding that his allegation is true, Sec. 4(d)(3) and (e). Ivey v State (February 11, 2009, PD-0552-08)

  • Where def was convicted of a felony and placed on community supervision, and before the time had expired for filing a notice of appeal from that conviction, he was convicted in instant case, def was entitled to a jury instruction on community supervision in this case, in spite of his previous conviction. Milburn v State (September 20, 2006, PD-1219-05)

  • Habeas corpus relief denied, on claim of ineffective assistance of counsel for failure to file sworn application for probation, where def did not establish prejudice. His allegations of prejudice in instant case did not address the central issue of prejudice under Strickland, which is whether there is a reasonable probability that def's sentencing jury would have recommended probation had the issue been submitted to it. Such a finding in instant case would be based on pure conjecture and speculation. This is especially true when record reflects the jury sentenced def to 40 years in prison, which is considerably more than 10 years in prison (maximum term under which jury may consider application for probation). Ex parte Cash (November 16, 2005, No. AP-75,108)


Sec. 5. Deferred Adjudication - constitutionality (CCP Art. 42.12. Community Supervision (Probation))
  • It was violation of ex post facto clause to use a successfully completed deferred adjudication to enhance punishment for a later offense when the provision permitting such enhancement did not exist at the time adjudication was deferred. Although savings provision* of 1997 amending Act showed the Legislature intended to permit the use for enhancement of deferred adjudications that were assessed before the enactment of the enhancement provision, to do so would violate ex post facto prohibition. Although the use of prior crimes to enhance punishment in other situations has been held not to be an ex post facto violation (under reasoning that the punishment is for the new crime only), in instant case prior statutory law explicitly limited the collateral consequences of deferred adjudication. When a statute explicitly restricts the collateral consequences of an offense, the defendant is entitled to rely on that restriction. Punishment for the offense is increased by the removal of the statutory restriction, and such an increase in punishment constitutes an ex post facto law. Scott v State (September 12, 2001, No. 1220-00)


Sec. 5. Deferred Adjudication - construction (CCP Art. 42.12. Community Supervision (Probation))
  • Where def was placed on deferred adjudication probation and filed motion for new trial claiming his plea was involuntary, trial court correctly concluded it had no authority to consider a motion for new trial before adjudication. When adjudication is deferred, there is no "finding or verdict of guilt." Because there is no finding or verdict of guilt, there is nothing that can be set aside so as to create an occasion for implementation of Rule 21. Other portions of Rule 21 support this conclusion. Rule 21.4(a) permits the defendant to "file a motion for new trial before, but no later than 30 days after, the date when the trial court imposes or suspends sentence in open court." Rule 21.8 provides that the trial court "must rule on a motion for new trial within 75 days after imposing or suspending sentence in open court." Under the deferred adjudication scheme, there is no conviction, and therefore, no sentence to impose or suspend. Because Rule 21 provides for the trial court to rule on a motion for new trial within 75 days after imposing or suspending sentence, the rule indicates that a motion for new trial is not available at the time adjudication is deferred. Def has other avenues for relief on a claim of involuntary plea: (1) He may move for adjudication of guilt under 42.12 sec. 5(b), which provides that upon such motion the judge shall proceed to final adjudication "as in all other cases" - indicating that, once def requests final adjudication, the proceedings resume at the point immediately before the trial judge deferred adjudication and as if adjudication had not been deferred. Under those circumstances, def is in the same position he would be in if he had pled guilty and the judge had taken the case under advisement. In that situation, if def asks to withdraw his plea, the trial judge is empowered to permit or deny such withdrawal, within his sound discretion. The trial judge also has discretion to authorize a hearing on the subject, at which time he can hear def's evidence concerning any reasons for permitting withdrawal, including allegations that the plea was involuntary. If the trial judge refuses to permit withdrawal of the plea and refuses to hear evidence on the matter, proceedings will continue normally, through judgment and sentence, allowing def to file motion for new trial raising the issue. (2) If def fails to move for final adjudication within thirty days, he has another available avenue for relief: an application for writ of habeas corpus under Article 11.08 or 11.09. A claim that the plea was involuntary is cognizable in such a proceeding. Donovan v State (January 30, 2002, No. 1310-00)

  • Under 26.13(a)(2), although trial judge did not “inform” def by expressly stating whether he would “follow or reject” the plea bargain, but stated only that he would defer a finding of guilt and place def on probation for ten years, by imposing punishment that comported exactly with the terms of the plea agreements, the judge “informed” def by his actions that he would follow the terms of the agreements. Deferred adjudication probation is viewed as a “punishment.” Ditto & Ervin v State, 988 S.W.2d 236 (March 10, 1999)

  • Under 42.12, sec. 5(b), only after guilt has been adjudicated do proceedings continue as if there had been no deferred adjudication. Sec. 5(b) does not stand for the proposition that def can withdraw guilty plea after revocation of deferred adjudication probation. Ditto & Ervin v State, 988 S.W.2d 236 (March 10, 1999)

  • A plea agreement in which the State makes no recommendation on probation or does not address it at all, but sets a cap on punishment, is satisfied when the trial court assesses as punishment deferred adjudication probation within the terms of the cap. Imposition of a higher sentence is not precluded upon proceeding to adjudication due to a violation of the terms of deferred adjudication probation since the bargain was satisfied and completed by previous assessment of the deferred adjudication probation. Ditto & Ervin v State, 988 S.W.2d 236 (March 10, 1999)


Sec. 5. Deferred Adjudication - discharge of defendant (CCP Art. 42.12. Community Supervision (Probation))
  • Trial court had authority under 42.12 sec. 5(c) to discharge def's community supervision and dismiss indictment four months after def had started ten-year deferred adjudication probation. State v Juvrud (March 22, 2006, No. PD-0006-03)

  • 42.12 sec 20 and its procedures for terminating community supervision do not apply to a defendant placed on deferred-adjudication community supervision. Rather, Section 5(c) controls deferred-adjudication community supervision and requires no minimum period of supervision that must be served before early dismissal. State v Juvrud (March 22, 2006, No. PD-0006-03)

  • When necessary, Section 5 refers to other sections of Article 42.12. For example, Section 5(a) provides, "A judge may increase the maximum period of community supervision in the manner provided by Section 22(c) or 22A of this article." However, in regard to dismissing and discharging a defendant prior to the expiration of the period of community service, there is no reference to Section 20, or to any other section of Article 42.12. State v Juvrud (March 22, 2006, No. PD-0006-03)


Sec. 5. Deferred Adjudication - procedure (CCP Art. 42.12. Community Supervision (Probation))
  • Habeas corpus relief granted where def's deferred adjudication community supervision was revoked without due process of law, where ground for revocation (commission of assault) was based entirely on perjured testimony and alleged assault never occurred. Ex parte Carmona (March 1, 2006, No. AP-75,182, AP-75,183 & AP-75,184)

  • On application for writ of habeas corpus, relief denied: The trial court properly included an affirmative deadly-weapon finding in the written judgment. No merit to contention trial court following adjudication of guilt was bound by plea agreement at time of original guilty plea. Even if the parties purport to have a plea bargain as to the sentence to be assessed after adjudication, the trial court is not bound by the rules that apply to plea bargains at an original sentencing; regardless of whether the deferred adjudication was part of a plea bargain, recommended by the prosecution, imposed by the trial court without objection by def, or granted under other circumstances, once the trial court proceeds to adjudication, it is restricted in the sentence it imposes only by the relevant statutory limits Ex parte Huskins (November 2, 2005, No. AP-75,153)

  • On application for writ of habeas corpus, relief denied: The trial court properly included an affirmative deadly-weapon finding in the written judgment. No merit to contention that court following adjudication of guilt lacked authority to enter affirmative deadly-weapon finding. Ex parte Huskins (November 2, 2005, No. AP-75,153)

  • On application for writ of habeas corpus, relief denied: The trial court properly included an affirmative deadly-weapon finding in the written judgment. No merit to contention entry of finding in written judgment violated due process because def had legitimate expectation of serving sentence announced orally by the court. While it is true that, when the oral pronouncement of the sentence and the written judgment differ, the oral pronouncement controls, a deadly-weapon finding is not part of the sentence. While a deadly-weapon finding does affect a defendant's eligibility for probation and parole, it does not alter the range of punishment to which the defendant is subject, or the number of years assessed. A deadly-weapon finding may affect how the sentence is served, but it is not part of the sentence. Thus, a trial court is not required to orally announce a deadly-weapon finding at sentencing if the allegation of use of a deadly weapon is clear from the face of the indictment. In instant case indictment alleged use of a firearm, which is a deadly weapon per se, and when trial court properly admonished def and accepted his guilty plea to indictment, trial court necessarily determined that def used a deadly weapon in commission of offense. Ex parte Huskins (November 2, 2005, No. AP-75,153)


Sec. 5. Deferred Adjudication - punishment (CCP Art. 42.12. Community Supervision (Probation))
  • Trial court did not have to hold a separate punishment hearing before sentencing def upon adjudication of guilt, where record* showed that def had the opportunity to, and did, present punishment evidence at the adjudication hearing. Grammer v State (September 30, 2009, PD-1508-08)

  • An unlawful cumulation order does not constitute "reversible error" under 44.29. Court of appeals did not err in rejecting state's proposal to remand for resentencing following ruling that cumulation order in instant case was unlawful. Because trial judge in instant case did not have authority to stack deferred adjudication community supervision term onto prison sentence, court of appeals was correct when it deleted the cumulation order. Result would not necessarily be the same if trial judge had the authority to cumulate but entered, at his discretion under 42.08(a), a cumulation order that lacked the requisite specificity. Beedy v State (April 2, 2008, PD-1224-06 and PD-1225-06)

  • Trial court, a few minutes after assessing 7-year sentence at adjudication of guilt, could withdraw that sentence, schedule a sentencing hearing for a later date, and at that later hearing assess 15 years. Ex parte Cruzata (April 18, 2007, AP-75,513)

  • On appeal from adjudication of guilt, def could waive his right to the PSI report during the initial plea proceedings and the waiver was effective for the sentencing proceedings after adjudication of guilt. Griffith v State (June 29, 2005, No. PD-1121-04)

  • Based on the plain meaning of the language in Article 42.12, def could waive his right to the PSI report during the initial plea proceedings and his waiver at that time was effective for the sentencing proceedings following adjudication of guilt. Griffith v State (June 29, 2005, No. PD-1121-04)

  • Post-conviction habeas corpus relief granted for reassessment of punishment following revocation of deferred adjudication probation where record* showed original trial judge violated def's right to due process because he refused to consider full range of punishment at hearing on state's motion to adjudicate, but assessed maximum punishment, which he had promised when def was originally placed on deferred adjudication probation. Ex parte Brown (January 12, 2005, No. AP-73,932)

  • Where order deferring adjudication of guilt contained a fine of $300, which the judge orally pronounced at that time, but when guilt was adjudicated, the judge did not orally pronounce a fine but included the $300 fine within the written judgment, the fine must be deleted in this case because of the unique circumstances of deferred adjudication. While this action would be permissible in a case involving regular probation, it was not permissible under deferred adjudication probation. Def was not sentenced until his guilt was adjudicated. At that time, the judge did not orally pronounce a fine, but included a fine within the written judgment. When there is a conflict between the two, the oral pronouncement controls. Since the judge did not orally assess a fine as part of def's sentence when guilt was adjudicated, the court of appeals was correct to delete the fine from the judgment. Taylor v State (April 7, 2004, No. 1327-03)

  • Nothing preserved for review on claim that trial court erred by not conducting a separate punishment hearing after the adjudication of guilt and before sentencing, where record showed that after adjudicating guilt, the trial judge asked def whether he had anything to say before he pronounced sentence, and there was no response. Def was given an opportunity to object and to present evidence, but he did neither. As a result, he failed to preserve error. Hardeman v State, 1 S.W.3d 689 (September 15, 1999)

  • On appeal following revocation of deferred adjudication probation, no merit to contention def was not given opportunity to present punishment evid and preserved issue for appeal, where after state presented its evidence in support of adjudication, def was sworn and testified in response to questions from his attorney as to “anything you would like to address the Court on [sic] regarding the sentencing,” and trial court also spoke* with def. It was immaterial that the opportunity to present evidence came before the actual words of adjudication. The failure of counsel to either obtain the attendance of subpoenaed witnesses or to request a continuance to obtain their attendance based on the repeated rescheduling of the hearing was not dispositive. Def had the opportunity to present evidence during the proceedings. [Distinguishing Issa v. State, 826 S.W.2d 159 (Tex. Crim. App. 1992).] Pearson v State, 994 S.W.2d 176 (June 9, 1999)

  • No merit to def's contention that he was not required to file a motion for new trial to preserve his point of error (that he was denied a punishment hearing prior to sentencing at time of revocation of deferred adjudication probation) because it was not necessary to adduce facts not in the record. The fact that def had an objection to having been prevented from offering punishment evidence was a fact not in the record. Rule 21.2 is not limited to "evidentiary facts" not in the record. Although def was entitled to a separate punishment hearing, it is a statutory right which can be waived. The trial judge should have been given an opportunity to allow def to present punishment evidence or to make a ruling denying def such an opportunity. Assuming def was, as he claimed on appeal, prevented from doing so by request or objection, he should have brought the issue to the attention of the trial court with a motion for new trial. Vidaurri v State (June 20, 2001, No. 515-99)


Sec. 5. Deferred Adjudication - appeal (CCP Art. 42.12. Community Supervision (Probation))
  • Article 42.12 sec. 5(b) does not bar review of complaints that do not challenge the decision to adjudicate. An assertion that def was not competent at time of adjudication hearing is such a complaint: It raises a preliminary due-process issue that must be resolved before the adjudication process may begin. The adjudication process begins when the state files a motion to adjudicate, a motion that is based on an alleged violation of the terms or conditions of the deferred adjudication. The status of being incompetent is not a violation of a term or condition of community supervision and cannot, therefore, be the basis for a motion to adjudicate. If incompetence cannot be the basis for a motion to adjudicate, it cannot be the basis for a decision to adjudicate. It is thus separate and distinct from the decision to adjudicate and therefore court of appeals has jurisdiction to resolve the issue. Durgan v State (November 7, 2007, PD-1069-06)

  • On appeal after adjudication of guilt, no merit to def's contention he was denied counsel at an earlier hearing at which the term of his supervision was extended and that the lack of counsel caused the extension and the subsequent adjudication both to be void. There is no such jurisdictional exception to the prohibition against appealing the determination to adjudicate guilt. Davis v State (June 28, 2006, PD-0078-05)

  • The prohibition in sec. 5(b) contains no jurisdictional exception. It simply says: "No appeal may be taken from this determination." A jurisdictional attack on the trial court's determination is still an attack on that determination, and it may not be advanced on appeal. Davis v State (June 28, 2006, PD-0078-05)

  • The prohibition on direct appeals in Article 42.12, section 5(b) is not a bar to habeas relief in case where def claims revocation of deferred adjudication community supervision was based on alleged offense that never occurred and that all testimony presented at adjudication of guilt hearing to prove the alleged offense was perjured. Ex parte Carmona (March 1, 2006, No. AP-75,182, AP-75,183 & AP-75,184)

  • Rule 25.2(a)(2) extends only to appeals from the initial plea of guilty in exchange for deferred adjudication, and not to appeals from the proceeding on the motion to adjudicate guilt. Keeping the final adjudication of guilt distinct from the plea bargain better represents the actual substance of the plea bargain and reduces the potential for confusion in the certification process. In instant case, court of appeals erred in denying def's general notice of appeal of the trial court's revocation proceeding solely on the basis of an underlying plea bargain from the original proceeding. The trial judge was instructed to re-certify instant case by designating it as "not a plea-bargain case" on the certification form. Hargesheimer v State (January 18, 2006, No. PD-1610-04)

  • Rather than complicating the certification process by maintaining an exception to Rule 25.2(a)(2) for certain appeals from plea-bargain deferred adjudication community supervision cases that have been finally adjudicated, court of criminal appeals ruled that the better course is to treat the final adjudication hearing as distinct from the underlying plea bargain to the original charge. In holding that a defendant's underlying plea bargain for deferred adjudication community supervision will no longer trigger the application of Rule 25.2(a)(2)'s restrictions to his appeal of the revocation proceeding, court overruled Watson v State, 924 S.W.2d 711, 714 (Tex. Crim. App. 1996), and eliminated the need for the exception in Vidaurri v State, 49 S.W.3d 880 (Tex. Crim. App. 2001). Now once a defendant who enters into a plea bargain for deferred adjudication community supervision decides not to appeal the order deferring adjudication, the restrictions of Rule 25.2(a)(2) are no longer applicable. After adjudication of guilt, the defendant's appeal will be restricted only by Article 42.12 sec. 5(b), which prevents him from appealing the trial court's decision to adjudicate guilt in the first place. Hargesheimer v State (January 18, 2006, No. PD-1610-04)

  • In a plea-bargain case for deferred adjudication community supervision, the plea bargain is complete at the time the defendant enters his plea of guilty in exchange for deferred adjudication community supervision. Rule 25.2(a)(2) will restrict appeal only when the defendant appeals his placement on deferred adjudication community supervision pursuant to the original plea. Under this circumstance, the trial judge certifying the defendant's right of appeal may designate the case on the certification form as "a plea-bargain case, and the defendant has NO right of appeal." It is important to note, however, that if the defendant filed written motions that were ruled on before his placement on deferred adjudication community supervision pursuant to Rule 25.2(a)(2)(A), or obtained the permission of the trial court for the appeal of his placement on deferred adjudication community supervision pursuant to Rule 25.2(a)(2)(B), he still has the right of appeal. On the other hand, when the defendant appeals from the proceeding on the motion to adjudicate guilt, Rule 25.2(a)(2) will not restrict appeal, but Article 42.12 sec. 5(b) will continue to prohibit the appeal of the trial court's decision to adjudicate guilt. Under this circumstance, the trial judge must check the box on the certification form indicating that the case "is not a plea-bargain case, and the defendant has the right of appeal." Hargesheimer v State (January 18, 2006, No. PD-1610-04)

  • In the PDR context, satisfying a showing that counsel's conduct caused the deprivation of right to file PDR entails: (1) demonstrating that the appellant was entitled to be in the appellate process, and (2) absent counsel's conduct, the appellant would have timely filed a PDR. When the appellant has no right to appeal, he can hardly be in position to complain about the denial of a PDR. In that circumstance, there should have been no occasion to file a PDR because appeal itself was unauthorized. So, where appeal is barred by Article 42.12, sec. 5(b), Rule 25.2(a)(2), Manuel v. State, 994 S.W.2d 658 (Tex. Crim. App. 1999) (defendant cannot attack original plea in appeal from revocation of deferred or regular probation), or some similar provision or doctrine, or where the defendant waived appeal, the attorney's failure to comply with Ex parte Wilson, 956 S.W.2d 25 (Tex. Crim. App. 1997), does not cause the defendant to be deprived of consideration of his PDR. Likewise, when an appellant would not have filed a PDR anyway, even if he had been notified in compliance with Wilson, then the attorney's action cannot be said to have caused the deprivation. Ex parte Crow (November 23, 2005, No. AP-75,176)

  • Court of appeals correctly dismissed on jurisdictional grounds, def's appeal following adjudication of guilt, in which def asserted ineffective assistance of counsel, because the purported error directly affected the decision to adjudicate, and its effect on the trial court's sentencing decision was simply part of the natural "spill over" effect of all evidence that shows the circumstances under which an offense occurred. Hogans v State (November 9, 2005, No. PD-1932-04)

  • At least in the context of combined adjudication-sentencing hearings, evidence and procedures that relate directly and distinctly to the sentence imposed are cognizable on direct appeal even when the events themselves occur before the magic words, "I find you guilty." Hogans v State (November 9, 2005, No. PD-1932-04)

  • The fact that a defendant may appeal sentencing claims that temporally occur during adjudication "proceedings" does not give an appellate court jurisdiction to consider any issue framed as a punishment issue. Rather, the asserted error must directly and distinctly concern the second phase; the claim must, on its face, relate to the sentence imposed, not to the decision to adjudicate. Any other rule would eviscerate the Section 5(b) bar on direct appeals of the decision to adjudicate. Hogans v State (November 9, 2005, No. PD-1932-04)

  • Although an appellant cannot appeal the trial court's decision to adjudicate guilt, an appellant sentenced under a guilty plea agreement can appeal aspects of the second phase to determine punishment. Kirtley v State (September 12, 2001, No. 1193-00)

  • No merit to state's contention that def is prohibited by rule 25.2(b)(3) from appealing his claim of ineffective assistance of counsel at punishment following adjudication of guilt. Such a claim is "unrelated to" a claim regarding the propriety of the conviction. There is nothing to prohibit def from claiming ineffective assistance of counsel during the punishment hearing on appeal. Because def can make that claim, the record is "necessary to the appeal's resolution" as is required by Rule 34.6(f)(3). Kirtley v State (September 12, 2001, No. 1193-00)

  • On appeals from revocation of regular probation in one case and revocation of deferred adjudication probation in second case, where def contended his original pleas in those cases were not voluntary and trial court held hearing on def's motion for new trial at which the involuntariness issue was litigated, it appeared def had satisfied the requirements of the "habeas corpus" exception to the rule against raising issues related to original plea on appeal after revocation, but court abandoned that exception and overruled Warren State, 744 S.W.2d 614 (Tex. Crim. App. 1988)(court of appeals erred in refusing to address claim of ineffective assistance of counsel at the original plea proceedings when the issue was litigated at the revocation hearing) and Carter v. State, 641 S.W.2d 557 (Tex. Crim. App. 1982)(trial court erred in refusing to allow the defendant to elicit evidence in support of a claim that counsel gave ineffective assistance at the original plea proceedings), to the extent those cases held that habeas corpus claims could be raised at a revocation hearing without actually filing a writ of habeas corpus application. Jordan v State (June 27, 2001, No. 1929-99 & 1930-99)

  • On appeals following revocation of regular probation and revocation of deferred adjudication probation, it was not error for court of appeals to fail to address def's claims that his original pleas in those two cases were involuntary, which def sought to raise by hearing on his motion for new trial where evid on the issue was presented. Court abandoned the "habeas corpus" exception to rule against raising issues related to original plea on appeal after revocation, and def failed to follow procedures for filing habeas corpus application during that time period. Abandonment of "habeas corpus" exception, announced in instant case, will be applied retroactively. Jordan v State (June 27, 2001, No. 1929-99 & 1930-99)

  • Decision to abandon the "habeas corpus" exception to rule against raising issues related to original plea on appeal after revocation announced in instant case, will be applied retroactively: The purpose of the holding was to avoid confusion from the use of an informal procedure; while accused persons who have relied on prior cases may lose their ability to have a trial court decide their claims before revocation, they still have an avenue after revocation in which their claims may be heard; and the administration of justice will benefit from streamlining the process and avoiding confusion that would be engendered by the old rule. Jordan v State (June 27, 2001, No. 1929-99 & 1930-99)

  • It was not error for court of appeals to dismiss def's appeal taken after revocation of deferred adjudication probation, for lack of jurisdiction, where def complained his original guilty plea was taken in violation of his right to counsel and right to a jury trial. Those issues should have been raised in an appeal taken at time deferred adjudication was first imposed. Def did not come within void judgment exception, where court could not determine truth of his claims because appellate record did not include transcription of the original plea proceedings. Def also did not come within "habeas corpus" exception [which exception is overruled in Jordan v S, (June 27, 2001, No. 1929-99 & 1930-99)], where def failed to litigate, in any fashion, his claim before the trial court; without even a "functional" writ of habeas corpus before the trial court, no appellate jurisdiction could lie in the court of appeals. Nix v State (June 27, 2001, No. 793-00)

  • There are exceptions to the rule stated in Manuel v State, 994 S.W.2d 658 (Tex. Crim. App. 1999), that "a defendant placed on deferred adjudication community supervision may raise issues relating to the original plea proceeding, such as evidentiary sufficiency, only in appeals taken when deferred adjudication community supervision is first imposed." One exception is the "void judgment" exception. But a judgment is void only in very rare situations, usually due to a lack of jurisdiction. A judgment of conviction for a crime is void when (1) the document purporting to be a charging instrument (i.e. indictment, information, or complaint) does not satisfy the constitutional requisites of a charging instrument, thus the trial court has no jurisdiction over the defendant [except for certain circumstances outlined by Duron v. State, 956 S.W.2d 547, (Tex. Crim. App. 1997)(failure to allege an offense because the Court cannot ascertain which offense is alleged) and Cook v. State, 902 S.W.2d 471, (Tex. Crim. App. 1995)(failure to charge a "person"), "fundamental" indictment errors have been eliminated by constitutional and statutory amendment], (2) the trial court lacks subject matter jurisdiction over the offense charged, such as when a misdemeanor involving official misconduct is tried in a county court at law, (3) the record reflects that there is no evidence to support the conviction [for the judgment to be void because there is no evid to support the conv, the record must show a complete lack of evidence to support the conviction, not merely insufficient evidence; and a guilty plea constitutes some evidence for this purpose], or (4) an indigent defendant is required to face criminal trial proceedings without appointed counsel, when such has not been waived, in violation of Gideon v. Wainwright. Also, for a judgment to be void, the record must leave no question about the existence of the fundamental defect. If the record is incomplete, and the missing portion could conceivably show that the defect does not in fact exist, then the judgment is not void, even though the available portions of the record tend to support the existence of the defect. Nix v State (June 27, 2001, No. 793-00)

  • Rule in Manuel v State, 994 S.W.2d 658 (Tex. Crim. App. 1999), that "a defendant placed on deferred adjudication community supervision may raise issues relating to the original plea proceeding, such as evidentiary sufficiency, only in appeals taken when deferred adjudication community supervision is first imposed," did not create a "new" rule. It was a statutory interpretation and no prior inconsistent, authoritative interpretation ever existed. No merit to def's contention that the rule should not be applied retroactively; because it was not a new rule, no retroactivity balancing test under Stovall v. Denno, 388 U.S. 293 (1967), was required. Nix v State (June 27, 2001, No. 793-00)

  • TRAP 34.6(f)(3), providing that a defendant is entitled to a reversal of his conviction and a new trial if a lost or destroyed reporter's record is "necessary to the appeal's resolution," did not require reversal where the reporter's record from the original deferred adjudication proceeding was lost at time of appeal from adjudication of guilt, because that record was not necessary to instant appeal's resolution since def could not now appeal any issues relating to the original deferred adjudication proceeding. Daniels v State (October 11, 2000, No. 1612-99)

  • Def waived complaints, on appeal after adjudication of guilt, about merits of claims regarding enhancement paragraphs (that there was insufficient evidence to support enhancement paragraphs and that the trial court erred in failing to arraign him on the enhancement paragraphs) where def did not raise them in an appeal after the trial court imposed deferred adjudication. Hardeman v State, 1 S.W.3d 689 (September 15, 1999)

  • On direct appeal from the adjudication proceeding, where def claimed state failed to use due diligence in apprehending him and bringing him before the trial court for a hearing, and court of appeals dismissed appeal for lack of jurisdiction because, among other things, def’s general notice of appeal failed to vest court of appeals with jurisdiction of appeal: court of criminal appeals disagreed with reasoning of court of appeals, but agreed with its ultimate holding that it lacked jurisdiction of the appeal based on decision in Connolly v. State, 983 S.W.2d 738, 741, (Tex.Cr.App. 1999). Rodriquez v State, 992 S.W.2d 483 (April 28, 1999)

  • Under Article 42.12, sec. 5(b), def whose deferred adjudication community supervision was revoked after his supervisory term had expired could not appeal trial court’s finding of due diligence on the part of the State in apprehending him and having the revocation hearing. Connolly v State, 983 S.W.2d 738 (Jan. 13, 1999)

  • Under Article 42.12, sec. 5(b), def could not appeal from the trial court’s finding of due diligence. Given the plain meaning of Article 42.12, sec. 5(b), a def whose deferred adjudication probation has been revoked and who has been adjudicated guilty of the original charge, may not raise on appeal contentions of error in the adjudication of guilt process. The due diligence issue is really in the nature of a plea in bar or defense which must be raised by the defendant at the revocation hearing. Thus, trial court’s decision on the due diligence issue was merely a part of its decision to revoke and proceed to judgment, and no appeal lies from that decision. Connolly v State, 983 S.W.2d 738 (Jan. 13, 1999)

  • Art. 42.12, sec. 5(b), prohibited def from raising a claim of error (insufficiency of the evidence to prove due diligence) in the adjudication of guilt process. The Court of Appeals should have dismissed def’s points of error dealing with due diligence without reaching their merits. Connolly v State, 983 S.W.2d 738 (Jan. 13, 1999)

  • Limitations on appeal in rule 25.2(b)(3) apply to appeals from adjudication of guilt on the nature of the initial plea-bargaining process, not on def's plea to the allegations regarding violation of deferred adjudication conditions at the adjudication hearing. Vidaurri v State (June 20, 2001, No. 515-99)

  • A defendant placed on deferred adjudication may raise issues relating to the original plea proceeding only in appeals taken when deferred adjudication is imposed and not after guilt is adjudicated. Vidaurri v State (June 20, 2001, No. 515-99)

  • Watson v. State, 924 S.W.2d 711 (Tex. Crim. App. 1996), [which broadly held that when a defendant pleads guilty or nolo contendere and is sentenced in accordance with a plea bargain agreement, appeal from his subsequent adjudication of guilt is subject to the restrictions of former Rule 40(b)(1), now Rule 25.2(b)(3)] is disavowed to the extent it conflicts with later cases Feagin v. State, 967 S.W.2d 417 (Tex. Crim. App. 1998) [which distinguished between appeals of issues relating to the conviction and appeals regarding issues separate from the conviction, holding that only the former are limited by Rule 40(b)(1), now Rule 25.2(b)(3)] and Manuel v. State, 994 S.W.2d 658 (Tex. Crim. App. 1999). However, Watson still stands for the proposition that when a prosecutor recommends deferred adjudication in exchange for a defendant's plea of guilty or nolo contendere, the trial judge does not exceed that recommendation if, upon proceeding to an adjudication of guilt, he later assesses any punishment within the range allowed by law. Vidaurri v State (June 20, 2001, No. 515-99)

  • Def's claim that he was deprived of a separate punishment hearing at time of revocation of deferred adjudication did not challenge his conviction; it challenged the process by which he was sentenced, an issue unrelated to his conviction. Therefore, the Rule 25.2(b)(3) limitations did not apply to def's claim and court of appeals erred in finding that it lacked jurisdiction to consider the claim. Vidaurri v State (June 20, 2001, No. 515-99)


Sec. 6. Shock Probation (CCP Art. 42.12. Community Supervision (Probation))
  • Trial court lacked jurisdiction to grant shock probation where def was not eligible for judge-ordered probation. Because jury verdict included an affirmative finding of use of a deadly weapon, under sec. 3(g)(a)(2) trial judge could not grant probation without a recommendation from the jury. Although jury did recommend probation (which was later revoked), that recommendation extended only to regular probation. That limitation exists because a grant of regular probation suspends the imposition of the assessed sentence, while shock probation suspends further execution of a sentence that defendant had already begun serving. Trial judge’s authority to order any form of probation arises from the jury’s recommendation of regular probation and thus has the same limitations. State v Posey (January 12, 2011, PD-0034-10 and PD-0035-10)

  • A trial judge may not grant shock probation unless the defendant is eligible for judge-ordered probation. State v Posey (January 12, 2011, PD-0034-10 and PD-0035-10)

  • State was not barred from complaining for the first time on appeal that the trial court lacked jurisdiction to place def on shock community supervision. Trial court jurisdiction over a case is an absolute systemic requirement. Thus, Rule 33.1 does not prohibit the State from raising a jurisdictional complaint for the first time on appeal. State v Dunbar (November 18, 2009, PD-1713-08)

  • The trial court lacked jurisdiction to place def on shock community supervision where (1) def was convicted of indecency with a child and trial court lost personal jurisdiction over def 30 days after sentencing, (2) under 42.12, sec 3g, a person convicted of indecency with a child is ineligible for "regular" community supervision, and (3) under 42.12, sec. 6(a)(1), a person who is ineligible for regular community supervision is also ineligible for shock community supervision. State v Dunbar (November 18, 2009, PD-1713-08)

  • When a defendant makes a proper and timely request for shock probation, but the trial court's order is made after it has lost jurisdiction and is therefore void, the defendant will be entitled to time credit for the time spent in release status due to the erroneous order. Ex parte Busby (March 7, 2001, No. 73,797)

  • Def was entitled to credit for time he was on release under a void shock probation order, where nothing in the record reflected that he was responsible for his erroneous release. He timely requested release to shock probation. His untimely release was not through any fault of his own, but because of the improper actions of the trial court after a request was properly made. When an applicant makes a proper and timely request for shock probation, but the trial court's order is untimely and therefore void, the applicant should not be penalized for asserting his statutory rights. Habeas relief granted. Ex parte Busby (March 7, 2001, No. 73,797)


Sec. 9. PSI Report - construction (CCP Art. 42.12. Community Supervision (Probation))
  • A PSI does not necessarily have to establish beyond a reasonable doubt that the defendant is responsible for extraneous misconduct before a court may consider it in assessing punishment. However, the PSI must provide the trial court with some basis from which it can rationally infer that the defendant was responsible before using it to inform its normative judgment of what punishment to assess within the statutorily prescribed range. Smith v State (June 27, 2007, PD-1486-06)

  • Where court of appeals held that trial court erred in considering extraneous misconduct evidence in making its normative decision of the appropriate punishment to assess within the applicable range because the state failed to establish that def committed that misconduct to a level of confidence beyond a reasonable doubt, as required by 37.07 sec. 3(a)(1), court of appeals affirmed on different reasoning: That provision does not prohibit a trial court, as a sentencing entity, from considering extraneous misconduct evidence in assessing punishment just because the extraneous misconduct has not been shown to have been committed by the defendant beyond a reasonable doubt, if that extraneous misconduct is contained in a PSI; but it would violate due process for a trial court to consider evidence of extraneous misconduct, even contained in a PSI, if there was no evidence from any source from which it could be rationally inferred that the defendant had any criminal responsibility for that extraneous misconduct. Smith v State (June 27, 2007, PD-1486-06)

  • Although 37.07 sec. 3(d) and 42.12 sec. 9 appear to conflict (37.07 appears to give the trial judge discretion in ordering a PSI while 42.12 appears to require a PSI absent certain exceptions), this apparent conflict is resolved by an examination of statutory history. The discretionary provision in 37.07, sec. 3(d) was enacted at a time when no requirement to order a PSI even existed. The Legislature's later revisions of Article 42.12 make clear that a PSI is now mandatory in all criminal cases unless one of the statutory exceptions is satisfied, and for felony cases, no statutory exceptions apply if the defendant timely requests a PSI. Any ambiguity about whether the mandatory PSI requirement exists when probation is not an option was eliminated by the most recent legislative amendments which provided an exception to the PSI mandate when imprisonment was the only available punishment but removed that exception when the defendant requests a PSI. The Article 42.12 provisions are more specific and were enacted after the Article 37.07 provision. Whitelaw v State (October 11, 2000, No. 352-00)


Sec. 9. PSI Report - waiver (CCP Art. 42.12. Community Supervision (Probation))
  • On appeal from adjudication of guilt, def could waive his right to the PSI report during the initial plea proceedings and the waiver was effective for the sentencing proceedings after adjudication of guilt. Griffith v State (June 29, 2005, No. PD-1121-04)

  • Section 9 requires a PSI report more often in a felony case than in a misdemeanor case. But, there is nothing in Section 9 that prevents the defendant in a felony case from waiving the preparation of the report. Because the legislature did not address this in Section 9, Article 1.14 controls and allows a defendant to waive the preparation of the report. A defendant in a felony case may waive his right to the preparation of a PSI report, even when he is eligible for community supervision. Griffith v State (June 29, 2005, No. PD-1121-04)

  • Based on the plain meaning of the language in Article 42.12, def could waive his right to the PSI report during the initial plea proceedings and his waiver at that time was effective for the sentencing proceedings following adjudication of guilt. Griffith v State (June 29, 2005, No. PD-1121-04)


Sec. 9. PSI Report - error (CCP Art. 42.12. Community Supervision (Probation))
  • Under the plain language of 42.12 sec. 9, a trial court is always required to order a PSI in a felony case when the defendant requests one, even when a defendant is not eligible for community supervision. In the present case, def requested a PSI while the jury was deliberating on the issue of guilt. The request was sufficient under the statute. No merit to state's contention that a PSI is not required if a full punishment hearing is conducted. Nowhere does sec. 9 provide for such an exception. The statute plainly forecloses any exceptions not contained therein. The fact that the defendant had a full punishment hearing may well impact whether the error was harmless, but conducting a full punishment hearing does not exempt a trial court from Article 42.12's PSI requirements. Whitelaw v State (October 11, 2000, No. 352-00)


Sec. 9. PSI Report - contents of report (CCP Art. 42.12. Community Supervision (Probation))
  • When a PSI is used in a non-capital case in which def has elected to have the judge determine sentencing, Crawford does not apply and the information in a PSI is not subject to the Confrontation Clause. Therefore, def's Sixth Amendment rights were not violated by the inclusion of unadjudicated-offense information in the report. Stringer v State (April 14, 2010, PD-1569-08)

  • Def's request for probation and his reliance on the positive information in the PSI report did not prevent him from objecting to other parts of the PSI. No merit to state's contentions def thereby waived, forfeited, or was estopped from asserting a Confrontation Clause objection. Stringer v State (April 14, 2010, PD-1569-08)

  • The purpose of a report such as the PSI used in a non-capital case in which the defendant has elected to have the judge determine sentencing, is to provide a wide range of information to the trial court without an adversarial hearing. The probation officer who prepares the report is neutral and the report is written in anticipation of consideration by the trial judge for sentencing, not for prosecution. The PSI is prepared by the community supervision and corrections department and is as likely to contain information adverse to the punishment position of the state as of the defense. By statute, the Legislature has directed what is to be included in a PSI, and the statute does not limit the criminal history to final convictions. The PSI statute also provides the defendant the opportunity to present contrary evidence. Stringer v State (April 14, 2010, PD-1569-08)

  • It was not error for trial court to consider portion of PSI in which victim opposed probation. Because a victim's opinion regarding a defendant's suitability for probation falls within the scope and plain language of "any other information relating to the defendant or the offense," [CCP 42.12, sec. 9(a)] the PSI was authorized to contain that information. Fryer v State (January 30, 2002, No. 1474-99)

  • It was not error for trial court to consider portion of PSI in which victim opposed probation. No merit to def's contention that trial court's consideration of victim's opinion about def's suitability for probation violates Eighth Amendment principles articulated in Booth v. Maryland, 482 U.S. 496 (1987). Booth is distinguished in that (1) it was a death penalty case, and instant case is not; (2) in involved opinions not of victim but of family members who did not view the crime, and instant case involved opinions of victim. Fryer v State (January 30, 2002, No. 1474-99)

  • It was not error for trial court to consider portion of PSI in which victim opposed probation. No merit to def's contention that trial court's consideration of victim's opinion about def's suitability for probation violated limitations on opinion testimony. Generally, the rules of evidence do not apply to the contents of a PSI. Fryer v State (January 30, 2002, No. 1474-99)

  • It was not error for trial court to consider portion of PSI in which victim opposed probation. No merit to def's contention that trial court's consideration of victim's opinion about def's suitability for probation was error because language of 56.03 allows a trial court to consider a written "victim impact statement" and sets forth a list of economic, physical, and social effects to be included within the statement and also directs the inclusion of any other information regarding the impact of the offense on a victim, guardian, or relative, but does not include a victim's punishment recommendation in that list. 56.03 does not purport to restrict the information contained in a PSI or to restrict a trial court's ability to obtain information through other statutorily authorized methods. 56.03 sets up a Texas Crime Victim Clearinghouse and mandates that the Clearinghouse develop and send victims a form designed to collect information regarding the impact of crimes on victims. Because 56.03 was enacted after the relevant PSI provisions, it is inapposite in interpreting the meaning of the PSI statutes. Fryer v State (January 30, 2002, No. 1474-99)

  • It was not error for trial court to consider portion of PSI in which victim opposed probation. No merit to def's contention that trial court's consideration of victim's opinion about def's suitability for probation was error because 42.03 provides for a victim statement (giving the victim a right to state his views about the offense, about the defendant, and about the effect of the offense on the victim), but permits such a statement only after punishment has been imposed, and that this post-sentencing victim statement - not the PSI - is the appropriate mechanism for a victim's opinion concerning the proper punishment. 42.03 does not purport to restrict the information contained in a PSI or to restrict a trial court's ability to obtain information through other statutorily authorized methods. Because 42.03 was enacted after the relevant PSI provisions, it is inapposite in interpreting the meaning of the PSI statutes. Fryer v State (January 30, 2002, No. 1474-99)


Sec. 11. Conditions of Probation (CCP Art. 42.12. Community Supervision (Probation))
  • It was error to revoke community supervision for violation of condition that required def either to obtain legal status to remain in this country within twelve months or else leave the country and reside in a location where she did have a legally authorized status, even though issue was raised for first time on appeal. A condition of community supervision that effectively operates to deport a probationer violates an absolute prohibition and is therefore not subject to ordinary principles of waiver or procedural default. No merit to state's contentions that def's challenge was barred by estoppel by judgment and estoppel by contract. Gutierrez v State (October 10, 2012, PD-1658-11)

  • A probationer retains his Fifth Amendment right against self-incrimination concerning statements that would incriminate him in future criminal proceedings, but def had no Fifth Amendment right to refuse to answer legitimate questions that are a condition of his community supervision regarding offenses alleged in counts of original indictment, where double jeopardy bar precluded state from prosecuting def for those offenses. Ex parte Dangelo (June 20, 2012, PD-0769-11 and PD-0770-11)

  • For sex offenders, 42.12 Sec. 11(i) specifies that conditions may include supervision according to the offense-specific standards of practice adopted by the Council on Sex Offender Treatment, which includes use of polygraph exams. Polygraph exams serve to establish treatment progress, to determine honesty and openness to treatment, to monitor compliance with the treatment program, and to deter and prohibit similar conduct while in treatment. Leonard v State (March 7, 2012, PD-0551-10)

  • An award of community supervision is not a right, but a contractual privilege, and conditions thereof are terms of the contract entered into between trial court and defendant. Therefore, conditions not objected to are affirmatively accepted as terms of the contract. Thus, by entering into the contractual relationship without objection, a defendant affirmatively waives any rights encroached upon by the terms of the contract. Leonard v State (March 7, 2012, PD-0551-10)

  • Timely objection requirement did not prevent def from raising complaint on appeal (that conditions of probation imposing two consecutive 180-day periods of confinement in jail violated requirement under 3.03(a) PC that sentences be served concurrently), where grounds for complaint were not apparent at time trial judge announced sentence and conditions of probation in open court, and grounds for complaint were first apparent on the next day, when def signed "Conditions of Community Supervision" in each case. There was no reporter's record of this proceeding; it was not noted on the court's docket sheets; the record did not show whether either the state or def was represented by counsel; no counsel signed the conditions; the trial judge did not participate (the conditions were signed by another judge "for" the trial judge); and def and a "court liaison officer" also signed the conditions. Appeals court concluded the document was signed in def's meeting with a community supervision officer, rather than during a hearing before the trial judge. Thus, def had no meaningful opportunity to object to these specific conditions of his probations. Therefore def did not "waive," or fail to preserve, his complaint for appellate review. Kesaria v State (April 5, 2006, PD-1802-04)

  • Def's notice of appeal was timely where it was filed within 30 days of original restitution order in the case, even though it was more than 30 days from initial sentencing. Before the original restitution order there was no decision from which def could appeal. In the unique facts of this case, the parties considered the sentencing to be incomplete until the amount of restitution, if any, was set. Because of these facts, the day the sentence was "suspended in open court," within the meaning of Rule 26.2(a)(1), was the day the last condition of probation was decided, and def's filing of his appeal was timely. Bailey v State (March 24, 2004, No. 2189-01)

  • Condition of probation prohibiting def from going "within three hundred (300) feet of any premises where children 17 years or younger congregate or gather" was not too vague to be enforced, over claim the condition did not specify how the child safety zone was to be measured. In instant case, the property line of elementary school was proper boundary from which to measure; there is nothing vague about a measurement from def's body to the boundary line of the school. Rickels v State (June 25, 2003, No. 0462-02)

  • Where condition of probation was added by modification of terms of probation without a hearing, def had no opportunity to object in trial court when condition was imposed, and could raise issue for first time at hearing on motion to revoke probation for violation of that condition. Rickels v State (June 25, 2003, No. 0462-02)

  • In original mandamus proceeding, mandamus conditionally granted in favor of trial judge seeking mandamus relief against order of court of appeals that granted mandamus relief against trial judge: Defendant in criminal case in trial judge's court did not establish his right to mandamus relief before court of appeals. Def sought order compelling trial judge to remove condition of probation requiring def to place a sign in his yard to notify public that he was a registered sex offender, and court of appeals issued mandamus relief based on conclusion that 62.045 preempts 42.12 sec. 11(a)(23) by providing exclusive means for informing public of registered sex offender in neighborhood. Because matter was issue of first impression whose merits were not so "clear and indisputable" as to be "beyond dispute," def failed to establish he had a clear legal right to decision by trial judge that 62.045 preempted 42.12 sec. 11(a)(23). Also, def had adequate remedy at law through habeas corpus. Banales, Judge v Court of Appeals (May 22, 2002, No. 74,307)

  • State court may order restitution in a criminal case for an obligation based upon a debt which has been discharged by a federal court in a bankruptcy proceeding. Cabla v State, 6 S.W.3d 543 (Dec. 8, 1999)

  • Restitution is intended to “adequately compensate the victim of the offense” in the course of punishing the criminal offender. CCP art. 42.12 sec. 9(a). These compensations include “property damage or medical expenses” sustained by the victim as a direct result of the offense. CCP art. 42.12 sec. 11(a)(14). Cabla v State, 6 S.W.3d 543 (Dec. 8, 1999)

  • Restitution is a component of the criminal justice system not operated primarily for the benefit of the victim, but for the benefit of society as a whole. Society is benefitted by punishment, including restitution, that is directly related to the offenses for which a defendant has been charged and convicted. The goal of a bankruptcy proceeding is to relieve the debtor of his financial obligations and permit the debtor to start his or her financial life over. The goals and purposes of restitution and bankruptcy differ greatly. Cabla v State, 6 S.W.3d 543 (Dec. 8, 1999)

  • Where def was convicted of theft and as a condition of probation was ordered to pay restitution to nine separate victims, no merit to def's contention that the victims were manipulating the criminal justice system to pursue collection of a previously discharged civil debt. The trial court convicted def of the charged theft and found def acted with criminal intent to deceive the victims and unlawfully appropriate their money. The trial court awarded restitution to the victims based on proof in the record of the amount of money received by def as a result of his criminal deception of the victims ($66,412.88). The facts that the victims of def’s offense were named as creditors in def’s bankruptcy proceeding, or that the bankruptcy court discharged def’s other “debts” prior to the conviction and restitution order, had no impact on the trial court’s restitution order. Cabla v State, 6 S.W.3d 543 (Dec. 8, 1999)

  • Def’s previous Chapter 7 bankruptcy did not discharge the trial court’s restitution orders in def’s conditions of probation. The restitution orders were valid because the evidence at trial established def committed a crime against the alleged victims and that he was ordered to pay restitution in the amount proven to have been unlawfully appropriated from those victims. Cabla v State, 6 S.W.3d 543 (Dec. 8, 1999)

  • Where def did not object to conditions of probation at trial, but complained about them for the first time on direct appeal, he procedurally defaulted his claim by failing to make a trial objection. Doctrine that def can raise “a defect in his sentence” even though he had not objected to it at trial, did not apply to challenge to conditions of probation. Code of Criminal Procedure defines community supervision as involving a suspension of the sentence; community supervision is an arrangement in lieu of the sentence, not a part of the sentence. Speth v State, 6 S.W.3d 530 (Dec. 1, 1999)

  • Trial court has broad discretion in determining the conditions of probation to be imposed. The judge may impose any reasonable condition that is designed to protect or restore the community, protect or restore the victim, or punish, rehabilitate, or reform the defendant. There are two exceptions to Section 11's permissive tone--a provision prohibiting the imposition of certain payments, 42.12 sec. 11(b), and another provision prohibiting a requirement that a defendant undergo an orchiectomy, 42.12 sec. 11(f). By treating these matters in prohibitory terms, the Legislature has provided that they are per se unreasonable. But a defendant can affirmatively waive unreasonable terms by entering into the probation contract containing such terms, without objection. Speth v State, 6 S.W.3d 530 (Dec. 1, 1999)

  • An award of community supervision is not a right, but a contractual privilege, and conditions thereof are terms of the contract entered into between the trial court and the defendant. Therefore, conditions not objected to are affirmatively accepted as terms of the contract. Thus, by entering into the contractual relationship without objection, a defendant affirmatively waives any rights encroached upon by the terms of the contract. A defendant who benefits from the contractual privilege of probation, the granting of which does not involve a systemic right or prohibition, must complain at trial to conditions he finds objectionable. A trial objection allows the trial court the opportunity to either risk abusing his discretion by imposing the condition over objection or reconsider the desirability of the contract without the objectionable condition. Speth v State, 6 S.W.3d 530 (Dec. 1, 1999)

  • A trial court having jurisdiction over a defendant placed on community supervision is authorized under 42.12 sec. 11 to alter or modify the conditions of community supervision at any time "during the period of community supervision." For offenses committed before September 1, 1993, under sec. 25(b) [now amended and renumbered as sec. 22(c)] a court could "[extend] the period of probation for a period not to exceed one year" after finding in a sec. 24 [now sec. 21] revocation hearing that the probationer violated a condition of community supervision. A court has no authority to act outside the periods permitted by statute. Ex parte Fulce, 993 S.W.2d 660 (May 19, 1999)


Sec. 12. Confinement as a Condition of Community Supervision (CCP Art. 42.12. Community Supervision (Probation))
  • It was error for trial judge to impose jail time as a condition of community supervision immediately after he heard unsworn, un-cross-examined victim-allocution statements that they wanted def to go to jail; 42.03 requires such statements be read after sentence has been imposed and court has announced terms and conditions of sentence. Error was not harmless on theory that trial court retained authority to modify and amend the conditions of probation at any time during the period of community supervision. If the trial judge finds that def is a less than perfect probationer, he may always amend the conditions of community service to include jail time as long as that condition is not inextricably connected to the victims' allocution statements asking for jail time. Johnson v State (June 17, 2009, PD-1187-07)

  • After a court suspends imposition of two sentences that would be served concurrently because they arose from the same criminal episode, the law permits a judge to impose conditions of probation that a defendant be confined in jail for two, consecutive periods of 180 days. No merit to contention this violated 3.03(a) PC requirement that sentences run concurrently. The Code of Criminal Procedure defines community supervision as involving a suspension of the sentence. In other words, community supervision is an arrangement in lieu of the sentence, not part of the sentence. Section 12(a) of Article 42.12 authorizes a judge with jurisdiction of a felony case to require a defendant who has been convicted to submit to a period of confinement in a county jail not to exceed 180 days, even when a jury has recommended probation. There is a statutory limit on that authority; Section 12(b) says that, when the judge also requires a defendant to serve a term in a community corrections facility, the total time served in such a facility and in a jail may not exceed 24 months. Nothing else in the article limits the judge's authority to require confinement in jail for each offense of which a defendant is convicted. Because sec. 12(a) authorizes a condition of confinement of jail for up to 180 days for a probationer who has been convicted in a felony case, the authority of the statute is not exceeded by another such condition of probation for a probationer who has been convicted in another felony case. Kesaria v State (April 5, 2006, PD-1802-04)


Sec. 13B. Community Supervision for Sexual Offenses Against Children (CCP Art. 42.12. Community Supervision (Probation))
  • It was not abuse of discretion to revoke def's probation for going within 300 feet of an elementary school, over claim the only evidence presented was that a portion of def's property, rather than def himself, was within 300 feet of the school's property line; it was not unfair or unreasonable for the trial court to have inferred ultimate fact of violation of probation condition from the basic fact that def's front yard and front door were within 300 feet of school's property line where children congregate or gather. Rickels v State (September 27, 2006, PD-0631-05)


Sec. 15. State Jail Felony Probation (CCP Art. 42.12. Community Supervision (Probation))
  • Art. 42.12, Sec. 15(b), governs extensions of an originally assessed period of community supervision for state-jail felonies, but it plainly does so only when that community supervision is assessed after a conviction and suspension of the imposition of a state-jail-felony sentence, and not when community supervision is assessed after an order of deferred adjudication of a state-jail felony. The authority to extend an originally assessed period of deferred-adjudication community supervision in state-jail-felony cases derives from the combination of provisions found in Art. 42.12, Secs. 5(a) and 22(c). Garrett v State (June 20, 2012, PD-0934-11)

  • A prior conviction must be final to be eligible for use under 42.12 sec. 15. Jordan v State (January 17, 2001, No. 156-99)

  • Prior conviction was not final and could not be used to deny def community supervision in the primary offense under 42.12 sec. 15, where at the time trial judge sentenced def to state jail in connection with primary offense, def still had time to file a motion for new trial in the proceedings involving the prior conviction. Jordan v State (January 17, 2001, No. 156-99)


Sec. 18. Community Corrections Facilties - notes (CCP Art. 42.12. Community Supervision (Probation))
  • Where under law in effect at time of offense def was entitled to credit against sentence for time spent in jail as condition of community supervision, subsequent amendments of 42.12 sec. 26 and 42.03 sec. 2(a), which provided that persons confined in county jails as a condition of community supervision would no longer receive credit for those periods of confinement if the community supervision were revoked, did not apply to def. Habeas relief granted in part to give def credit for such time. But under 42.12, sec. 19(d) [now sec. 18(c)], as in effect at time of offense, def was not entitled to credit for his periods of confinement in community corrections facilities. Ex parte Roberts, 987 S.W.2d 575 (Jan. 27, 1999)


Sec. 20. Reduction or Termination of Community Supervision (CCP Art. 42.12. Community Supervision (Probation))
  • 42.12 sec 20 and its procedures for terminating community supervision do not apply to a defendant placed on deferred-adjudication community supervision. Rather, Section 5(c) controls deferred-adjudication community supervision and requires no minimum period of supervision that must be served before early dismissal. State v Juvrud (March 22, 2006, No. PD-0006-03)

  • Section 20 provides the guidelines for the reduction or termination of community supervision. Although its title, "Reduction or Termination of Community Supervision," refers generally to "community supervision," the definition of which includes deferred adjudication, its language indicates that Section 20 can apply only to the types of community supervision that follow a conviction and sentence. State v Juvrud (March 22, 2006, No. PD-0006-03)

  • There are two entirely different types of "discharge" from felony community supervision under 42.12, sec. 20: (1) there is the usual method of discharge after the person placed on community supervision has completed his entire term of community supervision and has satisfactorily fulfilled all of the conditions of community supervision; (2) the judge may discharge the person early. Under first type, a person who has fulfilled all of the conditions of community supervision must be discharged; that person has paid his debt to society and, in effect, "graduates" from community supervision. However, that person has been convicted of a felony, even though he never went to prison. The second type of discharge under sec. 20 is not a right but rather is a matter of "judicial clemency" within the trial court's sole discretion. That is, when a trial judge believes that a person on community supervision is completely rehabilitated and is ready to re-take his place as a law-abiding member of society, the trial judge may "set aside the verdict or permit the defendant to withdraw his plea, and shall dismiss the accusation, complaint, information or indictment against the defendant, who shall thereafter be released from all penalties and disabilities resulting from the offense or crime of which he has been convicted or to which he has pleaded guilty." If a judge chooses to exercise this judicial clemency provision, the conviction is wiped away, the indictment dismissed, and the person is free to walk away from the courtroom "released from all penalties and disabilities" resulting from the conviction. Once the trial court judge signs the Article 42.12, sec. 20, order, the felony conviction disappears, except as specifically noted in subsections (1) and (2). Cuellar v State (February 13, 2002, No. 733-01)

  • A person who successfully completes all of the terms and conditions of community supervision must be discharged from community supervision. This is not a discretionary matter. However, whether to dismiss the indictment and set aside the conviction is wholly within the discretion of the trial court. A person whose conviction is set aside pursuant to an order under Article 42.12, sec. 20, is not a convicted felon. Cuellar v State (February 13, 2002, No. 733-01)

  • Penal Code sec. 46.04(a) requires a felony conviction as an element of the offense. Where def's prior felony conviction was set aside pursuant to an order under Article 42.12, sec. 20, there was no predicate felony conviction to support a conviction under 46.04(a). Cuellar v State (February 13, 2002, No. 733-01)


Sec. 22. Continuation or Modification (CCP Art. 42.12. Community Supervision (Probation))
  • A trial court has authority under Art. 42.12, Secs. 5(a) and 22(c), to extend the original term of community supervision of an accused who has been placed on deferred adjudication for a state-jail felony. Garrett v State (June 20, 2012, PD-0934-11)

  • Art. 42.12, Sec. 15(b), governs extensions of an originally assessed period of community supervision for state-jail felonies, but it plainly does so only when that community supervision is assessed after a conviction and suspension of the imposition of a state-jail-felony sentence, and not when community supervision is assessed after an order of deferred adjudication of a state-jail felony. The authority to extend an originally assessed period of deferred-adjudication community supervision in state-jail-felony cases derives from the combination of provisions found in Art. 42.12, Secs. 5(a) and 22(c). Garrett v State (June 20, 2012, PD-0934-11)

  • No merit to claim that a showing of good cause was required to justify trial judge’s extensions of deferred-adjudication community supervision under Sec. 22(c); requirement of showing of good cause was added by 2007 amendment. Because def was originally placed on deferred adjudication in August of 2006, the version of Sec. 22(c) that was in effect at that time applied. Garrett v State (June 20, 2012, PD-0934-11)

  • A trial court having jurisdiction over a defendant placed on community supervision is authorized under 42.12 sec. 11 to alter or modify the conditions of community supervision at any time "during the period of community supervision." For offenses committed before September 1, 1993, under sec. 25(b) [now amended and renumbered as sec. 22(c)] a court could "[extend] the period of probation for a period not to exceed one year" after finding in a sec. 24 [now sec. 21] revocation hearing that the probationer violated a condition of community supervision. A court has no authority to act outside the periods permitted by statute. Ex parte Fulce, 993 S.W.2d 660 (May 19, 1999)

  • Habeas corpus relief granted where def's community supervision expired before he allegedly committed the violations of the conditions for which his community supervision was revoked. His original community supervision was scheduled to expire on February 17, 1996, unless the trial court extended it pursuant to 42.12 sec. 25(b). The trial court conducted a sec. 24 [now sec. 21] hearing, found a violation, and modified the conditions of community supervision in an order entered March 17, 1995. Regardless of whether that order extended the period, subsequent orders dated July 3, 1996 and December 3, 1996, purportedly extending the period of supervision, were entered well after the community supervision expired. All actions after that date were not authorized, and the revocation of community supervision was a nullity. Ex parte Fulce, 993 S.W.2d 660 (May 19, 1999)


Sec. 23. Revocation of Probation - construction (CCP Art. 42.12. Community Supervision (Probation))
  • A Texas community-supervision revocation proceeding involves the application of law to past facts that remain static. It is conducted according to judicial rules before a trial judge, not an administrative agency. Applying administrative law – the law that governs the decision-making processes of administrative agencies – to revocation hearings has no basis in the Code of Criminal Procedure. Community-supervision revocation proceedings are not administrative hearings; they are judicial proceedings, to be governed by the rules established to govern judicial proceedings. Ex parte Doan (June 20, 2012, PD-1547-10)

  • Even though revocation of community supervision may result in defendant’s loss of liberty, a revocation hearing does not involve findings of guilt; rather it is a forum in which judge decides whether defendant has broken the contract he made with the court after a determination of guilt has already been made. While the rules of evidence and procedure generally apply to revocation hearings, evidence not normally admissible at a trial can be presented to the judge at a revocation hearing. And, because the judge is not determining guilt, the standard of proof is lower than in a criminal trial; the State must prove by a preponderance of the evidence that the conditions of community supervision were violated. Leonard v State (March 7, 2012, PD-0551-10)


Sec. 23. Revocation of Probation - jurisdiction to revoke (CCP Art. 42.12. Community Supervision (Probation))
  • Due diligence requirement did not apply where capias was issued and def was apprehended within probation period, but revocation hearing was held after probation period expired. Ballard v State (January 14, 2004, No. 1683-02)

  • Habeas corpus relief granted, and def discharged, where no motion to revoke was pending at time probation period expired, because motion to dismiss had been dismissed at state's request. Trial court had no jurisdiction to reinstate motion to revoke probation and enter order revoking probation after probation period had expired. Ex parte Donaldson (October 2, 2002, No. 74,334)

  • For a trial court's jurisdiction to continue after the probationary period expires, there must be (1) timely filing of a motion to revoke probation and (2) timely issuance of a warrant or capias. Without these requirements, the trial court has no jurisdiction, and all actions taken after the date that community supervision expires are void. Ex parte Donaldson (October 2, 2002, No. 74,334)

  • Where probationer is not apprehended until after his probationary period has expired and state is required to show due diligence, trial court may consider actions taken by the state before the motion to revoke is filed in determining whether the state has exercised due diligence in apprehending the probationer, overruling Harris v. State, 843 S.W.2d 34 (Tex. Crim. App. 1992). Bawcom v State (June 26, 2002, No. 1427-00)

  • Two requirements must be met for a trial court to acquire jurisdiction to revoke probation. The State must file with the trial court, before the expiration of the probationary period, a motion to revoke probation that alleges the probationer violated the terms of the probation judgment. The trial court must then, before the expiration of the probationary period, issue a capias based upon this motion that orders the arrest of the probationer. In addition to these jurisdictional requirements, the court is required to use due diligence in hearing and determining the allegations in the revocation motion. The State is also required to use due diligence in executing the capias that results from the motion to revoke. The requirement of due diligence is not a third jurisdictional element of probation revocations. The lack of due diligence is a plea in bar or defense, which must be raised by a defendant at the revocation hearing. This defense, however, is not an affirmative defense. Once the defendant meets the burden of production by raising the due-diligence issue at the revocation hearing, the State incurs the burden of persuasion to show that it exercised due diligence. Brecheisen v State, 4 S.W.3d 761 (October 27, 1999)

  • Habeas corpus relief granted where def's community supervision expired before he allegedly committed the violations of the conditions for which his community supervision was revoked. His original community supervision was scheduled to expire on February 17, 1996, unless the trial court extended it pursuant to 42.12 sec. 25(b). The trial court conducted a sec. 24 [now sec. 21] hearing, found a violation, and modified the conditions of community supervision in an order entered March 17, 1995. Regardless of whether that order extended the period, subsequent orders dated July 3, 1996 and December 3, 1996, purportedly extending the period of supervision, were entered well after the community supervision expired. All actions after that date were not authorized, and the revocation of community supervision was a nullity. Ex parte Fulce, 993 S.W.2d 660 (May 19, 1999)


Sec. 23. Revocation of Probation - due diligence (CCP Art. 42.12. Community Supervision (Probation))
  • Def failed to establish lack of due diligence by state, and court of appeals erred when it did not view evidence in light most favorable to trial court's findings on def's due diligence claim. Court of appeals wrongly focused on what it perceived to be inaction or lack of due diligence on part of law enforcement while ignoring def's responsibility to keep authorities informed of his whereabouts and de-emphasizing his efforts to abscond. Evidence supported trial court findings that before probation expired law enforcement authorities diligently attempted to locate def at two separate addresses where def had told probation authorities he would be. Also, by def's own admission he remarried, after which he moved five times, changed his name, changed his employment and declined to renew his driver's license, without notifying authorities. Browder v State (July 2, 2003, No. 1748-01 & 1749-01)

  • A trial court can hear a motion to revoke community supervision even after the period of community supervision has expired. To hold otherwise would reward an absconder who is able to elude capture until the expiration of his probationary period. However, in order for the jurisdiction of the trial court to extend beyond the expiration of the defendant's community supervision, two things must first occur: 1) a motion to revoke probation must be filed; and 2) a capias must be issued. As long as both a motion alleging a violation of probationary terms is filed and a capias or arrest warrant is issued prior to the expiration of the term, followed by due diligence to apprehend the probationer and to hear and determine the allegations in the motion the trial court's jurisdiction continues. The issue of lack of due diligence must be raised by the def before or during the revocation hearing in order to preserve it for appellate review. Once a defendant raises the issue, the State has the burden to show due diligence. The burden on the State to show due diligence was used in executing the capias and in holding a hearing on the motion to revoke is by a preponderance of the evidence. Peacock v State (May 29, 2002, No. 1750-00)

  • Where petition to revoke probation was filed and capias for def's arrest was issued before probation period expired, but def was not arrested until 17 months after capias issued and almost three months after probationary period expired, state was required to show due diligence in arresting def. State failed to show due diligence where only steps taken by state were to enter capias in TCIC (state-wide criminal information database) and send a letter to def's last known mailing address, a post office box. State also had address and phone number of def's mother, whom def had named as a contact person and by whom def had previously been contacted, but state did not attempt to contact def through her. Peacock v State (May 29, 2002, No. 1750-00)

  • So long as the State’s failure to exercise due diligence is a defense to revocation, the erroneous failure to give effect to the defense cannot be said to be harmless. Brecheisen v State, 4 S.W.3d 761 (October 27, 1999)

  • Where court of appeals found that the state “wholly failed” to meet its burden to show that it exercised due diligence in executing the capias and apprehending def, but it affirmed the trial court’s judgment by applying a harmless-error analysis, court of appeals erred in finding that the trial court’s failure to dismiss the state’s motion to revoke was harmless error. Judgments of the court of appeals and the trial court reversed, and case remanded to the trial court with directions to dismiss the motion to revoke probation. Brecheisen v State, 4 S.W.3d 761 (October 27, 1999)

  • The harm from reversible errors that would bar a retrial is plain: def would be free if not for the error. The standard remedy for reversible error is to provide def with a new proceeding that is free from the error that required reversal. Because the outcome of def’s probation-revocation proceeding depended upon the trial court’s ruling on due diligence, this remedy is not practical. A new proceeding without the error would result in def’s release from her probation. Brecheisen v State, 4 S.W.3d 761 (October 27, 1999)


Sec. 23. Revocation of Probation - period of probation (CCP Art. 42.12. Community Supervision (Probation))
  • Where def was placed on probation for ten years on April 29, 1994, his probation ended at midnight on April 28, 2004. State's motion to revoke filed on April 29, 2004, was too late. Nesbit v State (June 13, 2007, PD-1907-05)

  • The duration of a time period during which a person suffers specified restrictions upon his freedom by virtue of either a sentence of imprisonment or community supervision includes the first day in which such restrictions upon freedom operate and excludes the anniversary date. The same day cannot be double counted. This rule is logical, fair, and in accord with prior precedent construing the Code Construction Act. Nesbit v State (June 13, 2007, PD-1907-05)


Sec. 23. Revocation of Probation - plea (CCP Art. 42.12. Community Supervision (Probation))
  • Where def on motion to revoke probation pled true to allegation of failure to pay fees without raising any argument or evidence that he was unable to pay and for first time on appeal claimed state had burden to prove that his failure to pay fees was willful despite his plea of true and that, because the motion to revoke did not allege that he was able to pay the fees, his plea of true did not constitute evidence of his ability to pay, it was error for court of appeals to reverse on the merits of the claim without first determining that it was preserved for appeal. Cause remanded to court of appeals to determine whether, by pleading true to an allegation that he failed to pay and by failing to assert his inability to pay, a defendant waives or forfeits a claim that he is unable to pay. Gipson v State (November 14, 2012, PD-1470-11)

  • In the context of revocation proceedings, the legislature has not authorized binding plea agreements, has not required the court to inquire as to the existence of a plea agreement or admonish the defendant pursuant to 26.13, and has not provided for withdrawal of a plea after sentencing. Gutierrez v State (June 18, 2003, No. 0358-02)


Sec. 23. Revocation of Probation - due process (CCP Art. 42.12. Community Supervision (Probation))
  • It would offend due process if a probationer were discharged from his therapy program for a wholly inappropriate reason – such as illegal discrimination or mere caprice – and the bare fact of that discharge were used as a basis to revoke his community supervision. Yet, by an ordinary abuse-of-discretion review, such a revocation would be sustained. In instant case trial court, through a condition of def’s community supervision, made def’s compliance with the terms of his community supervision subject to the discretion of a third party. In such a case, to determine whether the trial court abused its discretion court must also examine the third party’s use of its discretion to ensure that it was used on a basis that was rational and connected to the purposes of community supervision. Leonard v State (November 21, 2012, PD-0551-10)


Sec. 23. Revocation of Probation - evidence at revocation (CCP Art. 42.12. Community Supervision (Probation))
  • Where trial court revoked deferred-adjudication community supervision based on results of polygraph examinations, that evidence was inadmissible, and therefore the trial court abused its discretion. Leonard v State (November 21, 2012, PD-0551-10)

  • Condition of probation that def "show no deception on any polygraph examination" did not justify admission of polygraph test results in evidence at hearing on motion to revoke probation. Leonard v State (November 21, 2012, PD-0551-10)

  • Where polygraph exams taken by def were used only for treatment purposes, and he showed deception on five of the exams and was discharged from the treatment program, and due to his unsuccessful completion of the treatment program his community supervision was revoked: while the polygraph results may have been used as “evidence” in the revocation hearing, it was as evidence only that def did not comply with or progress in the treatment program and not as evidence of guilt of the original offense. Leonard v State (March 7, 2012, PD-0551-10)

  • Most of the problems usually associated with admissibility of polygraph exam results are not present in a community-supervision revocation hearing. In such an administrative hearing, polygraph results are not used to establish guilt of original offense, there is no jury to be confused or to overvalue the results, and the judge is not deciding guilt. Leonard v State (March 7, 2012, PD-0551-10)

  • Even generally inadmissible facts or data may be used by an expert in forming an opinion, as long as the facts or data are of a type reasonably relied upon by other experts in the field. Polygraph exams are reasonably relied upon by experts in sex offender psychotherapy. As such, Rule 703 permits expert witness to rely on polygraph results in forming his expert opinion that def on probation in sex offense case should be discharged from the sex offender treatment program. Leonard v State (March 7, 2012, PD-0551-10)

  • While Rule 703 allows experts to rely on inadmissible evidence in forming an opinion, Rule 705 dictates whether the basis for the opinion is disclosed to the court. Rule 705(a) allowed expert witness in instant case to disclose that def's failed polygraphs were the basis for his opinion. Rule 703 allowed expert witness to testify, “I discharged the defendant because I felt that he was being dishonest,” and under Rule 705(a), he may add, “I felt he was being dishonest because he failed the mandated polygraph exams.” Leonard v State (March 7, 2012, PD-0551-10)

  • In a community-supervision revocation hearing, where there is no jury, polygraph results may be admissible as the basis for an expert opinion under Rules 703 and 705(a). Leonard v State (March 7, 2012, PD-0551-10)

  • Because adjudication hearings are administrative proceedings, in which there is no jury and the judge is not determining guilt of the original offense, the results of polygraph exams are admissible in revocation hearings if such evidence qualifies as the basis for an expert opinion under Rules 703 and 705(a). Leonard v State (March 7, 2012, PD-0551-10)


Sec. 23. Revocation of Probation - proof at revocation (CCP Art. 42.12. Community Supervision (Probation))
  • Before the State may take advantage of the rule that a revocation may stand on appeal so long as the evidence supports a finding that at least one of the conditions of community supervision was violated, it must demonstrate from the record that the one violation upon which it relies on appeal is supportable independent of whatever constitutional taint arguably inheres in the other. Dansby v State (May 8, 2013, PD-0613-12)

  • Bearden v Georgia, 461 U.S. 660, 672 (1983), does not require a showing, to revoke probation and impose imprisonment for failure to pay fees, that probationer willfully refused to pay or make sufficient bona fide efforts to do so. (1) Bearden prescribes a mandatory judicial directive, not a prosecutorial evidentiary burden. (2) Bearden does not categorically prohibit incarceration of indigent defendants; it permits incarceration when “alternative measures are not adequate to meet the State’s interests in punishment and deterrence.” Gipson v State (November 14, 2012, PD-1470-11)


Sec. 23. Revocation of Probation - evidence sufficient (CCP Art. 42.12. Community Supervision (Probation))
  • It was not abuse of discretion to revoke def's probation for going within 300 feet of an elementary school, over claim the only evidence presented was that a portion of def's property, rather than def himself, was within 300 feet of the school's property line; it was not unfair or unreasonable for the trial court to have inferred ultimate fact of violation of probation condition from the basic fact that def's front yard and front door were within 300 feet of school's property line where children congregate or gather. Rickels v State (September 27, 2006, PD-0631-05)


Sec. 23. Revocation of Probation - evidence insufficient (CCP Art. 42.12. Community Supervision (Probation))
  • Evid was insuff to prove def violated a “no contact” condition of probation (that def have no contact with his wife), when the condition allowed contact by telephone regarding issues of child custody and when def and his wife had an arrangement for def to babysit their children at his wife’s home while she was at work, and evidence failed to show any contact by def with his wife that was not within the permitted telephone contact regarding child custody issues [details in opinion]. Hacker v State (January 16, 2013, PD-0438-12)


Sec. 23. Revocation of Probation - rules for findings to revoke (CCP Art. 42.12. Community Supervision (Probation))
  • On appeal from revocation of deferred adjudication probation, in which def claimed revocation was based on his invocation of privilege against self-incrimination by refusing to answer questions during a court-imposed sexual history polygraph examination about past sexual assault offenses, court of appeals incorrectly failed to address that issue by affirming revocation on violation by def's discharge from treatment program, where he was discharged because he refused to answer incriminating questions during the sexual history polygraph. Failure to successfully complete sex offender treatment program was not independent basis for revocation where record failed to show that, even without refusing to answer what he took to be incriminating questions, def actually would have been discharged from the sex offender treatment program. Dansby v State (May 8, 2013, PD-0613-12)

  • Before the State may take advantage of the rule that a revocation may stand on appeal so long as the evidence supports a finding that at least one of the conditions of community supervision was violated, it must demonstrate from the record that the one violation upon which it relies on appeal is supportable independent of whatever constitutional taint arguably inheres in the other. Dansby v State (May 8, 2013, PD-0613-12)


Sec. 23. Revocation of Probation - punishment (CCP Art. 42.12. Community Supervision (Probation))
  • Trial court did not violate def's federal constitutional right to due process when it revoked probation and assessed punishment, and then denied def's request for a separate hearing on punishment at a later date. No merit to def's contention that due process required trial court to grant his request for another hearing on another day so that he could gather evidence and show that incarceration was not the appropriate punishment in his case. If def wanted an opportunity to present evidence and argument on the question of punishment, it was incumbent upon him to ask for that opportunity and to be ready to present such evidence and argument as soon as trial court announced finding that def had violated the conditions of his probation. Part of being prepared for a revocation hearing is being prepared to present evidence and argument on the question of the proper disposition in the event that trial court finds that the conditions of probation have been violated. Euler v State (March 21, 2007, PD-0472-05)


Sec. 23. Revocation of Probation - jeopardy (CCP Art. 42.12. Community Supervision (Probation))
  • On claim that doctrine of res judicata applied to bar a prosecution for a criminal offense in one county after a prosecutor in another county unsuccessfully attempted to revoke defendant’s community supervision on the ground that he committed the same offense, the two prosecuting attorneys were the same party for res judicata purposes. The issues and procedures were nearly identical in the the two proceedings. In both the prosecutors plead and sought to prove that def committed the same act; both were criminal, judicial proceedings with nearly identical procedural rules, in which the State was represented by sworn prosecutors; the prosecutor in the probation revocation proceeding had the authority to litigate the matter to a final adjudication. The only difference between the interests of the two prosecutors is that one sought to prove theft in order to criminally punish def for theft, while the other sought to prove theft in order have def’s criminal punishment from a prior case altered to his detriment. That difference is sufficient to allow this case to escape the narrow grasp of the Double Jeopardy clause, but as a matter of state law, a prosecuting authority who alleges a criminal offense in a community supervision revocation hearing represents the same state interests as a prosecuting authority who later alleges the same criminal offense in a trial. The Court of Appeals erred in holding that two prosecuting authorities could not be the same party for res judicata purposes. Ex parte Doan (June 20, 2012, PD-1547-10)


Sec. 23. Revocation of Probation - appeal: collateral attack on conviction (CCP Art. 42.12. Community Supervision (Probation))
  • On appeals from revocation of regular probation in one case and revocation of deferred adjudication probation in second case, where def contended his original pleas in those cases were not voluntary and trial court held hearing on def's motion for new trial at which the involuntariness issue was litigated, it appeared def had satisfied the requirements of the "habeas corpus" exception to the rule against raising issues related to original plea on appeal after revocation, but court abandoned that exception and overruled Warren State, 744 S.W.2d 614 (Tex. Crim. App. 1988)(court of appeals erred in refusing to address claim of ineffective assistance of counsel at the original plea proceedings when the issue was litigated at the revocation hearing) and Carter v. State, 641 S.W.2d 557 (Tex. Crim. App. 1982)(trial court erred in refusing to allow the defendant to elicit evidence in support of a claim that counsel gave ineffective assistance at the original plea proceedings), to the extent those cases held that habeas corpus claims could be raised at a revocation hearing without actually filing a writ of habeas corpus application. Jordan v State (June 27, 2001, No. 1929-99 & 1930-99)

  • On appeals following revocation of regular probation and revocation of deferred adjudication probation, it was not error for court of appeals to fail to address def's claims that his original pleas in those two cases were involuntary, which def sought to raise by hearing on his motion for new trial where evid on the issue was presented. Court abandoned the "habeas corpus" exception to rule against raising issues related to original plea on appeal after revocation, and def failed to follow procedures for filing habeas corpus application during that time period. Abandonment of "habeas corpus" exception, announced in instant case, will be applied retroactively. Jordan v State (June 27, 2001, No. 1929-99 & 1930-99)

  • Decision to abandon the "habeas corpus" exception to rule against raising issues related to original plea on appeal after revocation announced in instant case, will be applied retroactively: The purpose of the holding was to avoid confusion from the use of an informal procedure; while accused persons who have relied on prior cases may lose their ability to have a trial court decide their claims before revocation, they still have an avenue after revocation in which their claims may be heard; and the administration of justice will benefit from streamlining the process and avoiding confusion that would be engendered by the old rule. Jordan v State (June 27, 2001, No. 1929-99 & 1930-99)


Sec. 24. Due Diligence Defense (CCP Art. 42.12. Community Supervision (Probation))
  • The common-law requirement that the state exercise due diligence in prosecuting a motion to revoke community supervision has been replaced by Art. 42.12, Sec. 24 (the “due-diligence statute”). Furthermore, the due-diligence statute applies to only two alleged community-supervision violations: failure to report to a supervision officer as directed or to remain within a specified place. Garcia v State (December 12, 2012, PD-1846-11)

  • Sec. 24, which expressly created a due-diligence affirmative defense to revocation, is more favorable to the state than was the common-law defense in three ways. First, it makes due diligence an affirmative defense, thereby shifting the burden of proof to the defendant. Second, it limits the state’s due-diligence duty to contacting or attempting to contact the defendant at his last-known residential or employment addresses, whereas common law required reasonable investigative efforts to apprehend the defendant. Third, it applies to only two revocation allegations: failure to report to an officer as directed, and failure to remain within a specified place. By contrast, the common-law due-diligence requirement applied to all revocation allegations. Garcia v State (December 12, 2012, PD-1846-11)

  • Where probation revocation was based in part on failure to complete required substance-abuse treatment, even assuming that state did not exercise due diligence in executing the capias, trial court did not abuse its discretion def's on claim of no due-diligence by state because no due-diligence defense is available with respect to failure to complete substance-abuse treatment, and proof of a single violation will support revocation. Garcia v State (December 12, 2012, PD-1846-11)

  • 2003 amendment to Article 42.12, Section 24, (Due Diligence Defense) applied to instant case, where revocation hearing was held after effective date of amendment. Although the State did not argue that Section 24 was applicable in the Court of Appeals, it had no obligation to do so. The State was not required to preserve anything because it was successful in the trial court. Pena v State (September 20, 2006, PD-1639-04)


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