The great majority of sentences in Texas are arrived at by agreement following the negotiations that lead to a guilty plea. When a case goes to trial, the guilt or innocence is determined in a proceeding that is separate from the sentence determination—referred to as a bifurcated trial. If a guilty verdict is returned at a trial, the sentencing phase begins immediately.
Before trial, the defendant elects whether to have any potential punishment determined by a judge or a jury. This is a strategic decision best made in close consultation with an experienced defense attorney—one who can advise the client on sentencing trends in particular courts or in juries selected from the community, and effectively present mitigating factors.
The choice of going to a judge or jury for sentencing may also depend on eligibility for probation, now called community supervision. In the case of certain serious crimes or those involving a deadly weapon, only a jury can sentence the defendant to probation. In these cases the defendant must also be “probation eligible,” meaning that there are no prior felony convictions.
WHAT ARE THE PLACES OF CONFINEMENT?
Local correctional facilities designated by law for the confinement of persons include: (1) municipal (city) jails – generally hold arrested persons until either bonded or transferred to county jails; (2) county jails – hold defendants awaiting trial or transfer to prison, or confined for misdemeanor punishment or a condition or violation of a community supervision; and (3) community corrections facilities – such as restitution centers, boot camps, and substance abuse treatment facilities.
The institutional division of the Texas Department of Criminal Justice operates and manages the state prison system with more than 100 facilities located across the state, including: (1) transfer facilities – hold defendants awaiting transfer to prison; (2) boot camps – for first time felony (except state jail) offenders (age 17-25) using a regimented program similar to military boot camps; (3) state jail facilities – for defendants convicted of state jail (4th degree) felonies; (4) substance abuse felony punishment facilities (SAFPFs); (5) psychiatric and minimum, medium, and maximum security units (prisons) for inmates convicted of capital, 1st, 2nd and 3rd degree felonies, and inmates awaiting execution; and (6) private prisons – serve as pre-release centers for prisoners awaiting release on parole.
WHAT IS COMMUNITY SUPERVISION?
Community supervision, formerly called “probation,” means that the defendant is released into the community under certain conditions set by the court and subject to court supervision. The maximum period of community supervision is ten years in a felony case; two years in a misdemeanor case (three years if extended by the judge). However, if the offense is indecency with a child, sexual assault, or aggravated sexual assault, the judge may extend the period of supervision for a period not to exceed 10 additional years. And the judge may extend the period in a misdemeanor case not to exceed an additional two years beyond the limit to pay the fine, costs, or restitution.
Basic conditions of community supervision include, for example, that the defendant: (1) commit no criminal offense; (2) report to the supervision officer as directed; (3) permit the supervision officer to visit at the defendant’s home or elsewhere; (4) work faithfully at suitable employment and support his/her dependents; (5) remain within a specified place; and (6) pay restitution to the victim and any fine assessed and all court costs. Defendants placed on community supervision are supervised by community supervision officers, formerly called “probation officers.”
A defendant’s eligibility for community supervision depends on factors including: (1) the type of community supervision; (2) the offense involved; (3) whether the defendant used or exhibited a deadly weapon or knew that a deadly weapon would be used or exhibited; (4) whether the defendant has previously been convicted of a felony offense or placed on community supervision; (5) whether the defendant pleads guilty or nolo contendere; (6) whether the judge or jury sets the defendant’s punishment; and (7) whether the defendant is sentenced to a term of imprisonment exceeding ten years.
One type of community supervision is a regular community supervision (sometimes called straight probation). The defendant is convicted and given a term of confinement which the judge immediately suspends and then places the defendant on community supervision.
In a deferred adjudication community supervision, after receiving the defendant’s plea of guilty or nolo contendere, hearing the evidence, and finding that it substantiates the defendant’s guilt, the judge defers further proceedings without entering an adjudication of guilt and places the defendant on community supervision. Unlike the other types of community supervision, if the defendant successfully completes the supervision period, the judge is required to dismiss the proceedings and discharge the defendant. However, if the defendant violates a condition of the deferred adjudication community supervision, the defendant may not appeal the court’s decision to proceed with the adjudication of guilt on the original charge.
Finally, in a continuing jurisdiction community supervision (formerly called “shock probation”) or state boot camp program, the defendant is convicted and given a sentence requiring confinement. After serving a set period of confinement, the judge may suspend further execution of the sentence and place the defendant on community supervision.
At any time during the period of any community supervision, the prosecutor may file a motion to revoke and the judge may issue a warrant for violation of any of the conditions of the supervision and cause the defendant to be arrested and held without bond until a hearing within 20 days after demand. The state must prove by a preponderance of the evidence (greater weight and degree of credible evidence) that the defendant violated the conditions of the community supervision. After a hearing without a jury, the judge may continue, extend, modify or revoke the community supervision, or, in deferred adjudication community supervision, proceed to adjudication. In a deferred adjudication, the judge may assess the full range of punishment prescribed for the offense; if it is one of the other types of community supervision, the judge may not go beyond the original term of confinement. No part of the time that the defendant is on community supervision shall be considered as any part of the time that he/she shall be sentenced to serve.
A good criminal defense attorney has at least two primary tasks. The first is to help their client beat any and all pending charges either by dismissal or a not guilty verdict. Accomplishment of this task is not always possible. The second task comes if and when the first is not possible. The second task is to ensure that the client gets the best possible sentence possible. Even when the guilt of a defendant is not in dispute, an aggressive defense attorney will work to achieve the least restrictive and shortest sentence possible. With so many options available to the court, and so many factors involved in the court’s decision, you want someone with experience by your side. The legal professionals at the Law Offices of Roderick C. White will always aggressively do a complete job; and that includes an aggressive sentencing plan and implementation when unfortunately necessary.