Texas Sentencing in Non-Capital Cases

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Wednesday, January 30th, 2019
Texas Sentencing in Non-Capital Cases

Regardless of the plea and whether the punishment be assessed by the judge or the jury, evidence may be offered by the state and the defendant as to any matter the court deems relevant to sentencing . . .

Tex Code Crim Proc. 37.07, § 3(a)(1).

The sentencing stage of any case, regardless of the potential punishment, is the time at which for many defendants the most important services of the entire proceeding can be performed.

Vela v. Estelle, 708 F.2d 954, 964 (5th Cir. 1983) cert denied, 464 U.S. 1053 (1984)

Those two quotes summarize the gravity of the second stage of a trial. This is where the rubber truly meets the road for a criminal defendant; just about anything is usually game. No matter how you plan on proceeding for guilt or innocence, punishment needs to be on your mind from day one. While every one of us would like that two-word verdict, the reality is that most trials aren’t about guilt or innocence. Often, it’s because the defense and the state couldn’t agree on an outcome. The goal of this article is to provide some tools to help determine what is coming at you, what defense attorneys should be looking for, and some technical considerations in punishment, enhancement, and community supervision.

I. Figure Out What Is Coming

Talent is cheaper than table salt. What separates the talented individual from the successful one is a lot of hard work.

—Stephen King

The number-one tool for any case of any kind is preparation. Unfortunately for many defense attorneys, the sentencing phase of a trial is often spent rebutting bad information instead of being able to provide good information about our clients. The biggest advantage is in preparation and knowing what is coming at you before the second half of your trial. Luckily the Texas Code of Criminal Procedure and the Texas Rules of Evidence provide requirements of information that the State must provide. Below are some avenues that can be used in finding out what is coming at you, and your client, in the second half of the trial.

A. The Indictment

The first and best place to see what will be presented at sentencing is the indictment. The indictment and subsequent motions to amend or enhance the indictment put you on notice of what range of punishment your client will be looking at and what extraneous bad acts will be presented at sentencing. Take the time to look at the enhancement paragraphs if they are there. Make sure dates and cause numbers are correct. Pull copies of past convictions, including probable cause affidavits, and if appropriate, testimony from those proceedings. Your client may have previously been convicted of aggravated robbery, but it could make the difference to a judge or jury if your client was just the driver instead of the one inside with the gun.

Be aware, prior offenses used to enhance your client’s range of punishment do not have to be included in the indictment. Brooks v. State, 957 S.W.2d 30, 33 (Tex. Crim. App. 1997). However, the State must give “proper notice” of the intent to enhance. Id. That notice to enhance can come as late as the beginning of the punishment phase of the trial. Villescas v. State, 189 S.W.3d 280, 294 (Tex. Crim. App. 2006). Make sure to use your requests for disclosure, discussed below, to know what prior offenses the State intends to use during your trial.

B. Discovery Orders

Under the Due Process Clause of the Fourteenth Amendment, a prosecutor has an affirmative duty to turn over material exculpatory evidence. Brady v. Maryland, 373 U.S. 83, 87–88 (U.S. 1963); Ex parte Kimes, 872 S.W.2d 700, 702 (Tex. Crim. App. 1993). Brady is also now codified in the Texas Code of Criminal Procedure § 39.14(h). The prosecution violates due process when it suppresses evidence in its possession favorable to an accused “where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.” Brady, 373 U.S. at 87. Evidence withheld by a prosecutor is “material” if there is “a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different.” United States v. Bagley, 473 U.S. 667, 782 (1985). A “reasonable probability” is a “probability sufficient to undermine confidence in the outcome.” Id.

Prior to the passage of SB 1611, better known as the Michael Morton Act, a Defendant was required to make a showing of good cause to have the inspection and copying of evidence in the State’s possession and have the court order the production. Now, upon a “timely request” a Defendant is entitled to inspection and duplication of essentially everything in the State’s possession. Tex Code Crim Proc. 39.14(a)

If discovery is requested and the State fails to comply, then the non-disclosed evidence should be excluded from trial. “Evidence willfully withheld from disclosure under a discovery order should be excluded from evidence.” Oprean v. State, 201 S.W.3d 724, 726 (Tex. Crim. App. 2006), citing Hollowell v. State, 571 S.W.2d 179, 180 (Tex. Crim. App. 1978). However, when the evidence is disclosed during trial and still comes in, the materiality question turns on whether the defendant was prejudiced by the delayed disclosure. Williams v. State, 995 S.W.2d 754, 761–62 (Tex. App.—San Antonio 1999, no pet.). When previously withheld evidence is disclosed at trial, the defendant has an opportunity to request a continuance. Id. The failure to request one waives any Brady violation, as well as any violation of a discovery order. Gutierrez v. State, 85 S.W.3d 446, 452 (Tex. App.—Austin 2002, pet. ref’d). If confronted with evidence that was not turned over in discovery, you must make your objection, request a continuance, and make your record to object to the surprise the evidence creates and how it is materially adverse to your client.

C. Requests for Disclosure of Extraneous Offenses

Like the new procedures under the Michael Morton Act, a re­quest for disclosure triggers an automatic requirement for dis­clo­sure of prior bad acts and extraneous offenses. “On timely request of the defendant, notice of intent to introduce evidence under this article shall be given in the same manner as required by Rule 404(b), Texas Rules of Evidence.” Tex Code Crim Proc. 37.07 § 3(g). If the extraneous offense is one that has not resulted in a conviction, then notice must include 1) the date of the alleged bad act, 2) the county in which the alleged bad act occurred, and 3) the name of the alleged victim of the crime or bad act. Id. Additionally, Texas Rule of Evidence 609(f) also excludes evidence of prior convictions if proper notice is not given after a specific request.

Special rules apply to cases involving a sex offense against a child under 17 years old. Tex Code Crim Proc. 38.37. Evidence of other crimes, wrongs, or acts by a defendant against the child victim in this type of case will be admissible to show the relationship between the defendant and the child. In this type of case, make sure to include in your request those prior bad acts pursuant to Tex Code Crim Proc. Article 38.37 § 3, which must then be disclosed in the same manner as Article 37.07 notice.

D. Expert Disclosure

In addition to the information obtained from the State in discovery, Tex Code Crim Proc. Article, 39.14(b) allows for discovery of experts the State intends to introduce. When properly requested, the defense is entitled to the name and address of any experts to be used to present evidence under Rule 702, 703, and 705. Be aware that the same goes for the disclosure of defense experts when the State makes a request under 39.14(b).

Unlike traditional civil discovery, disclosure of an expert’s identity and address does not necessarily entitle a defendant to disclosure of an expert’s opinion, or the facts and data used to form that opinion. Additionally, those facts and data may not necessarily be in the State’s control. Make sure to include in any request for expert disclosure the summary opinion of each expert, as well as the facts and data relied on to form that opinion pursuant to Texas Rule of Evidence 705. If necessary, do a separate motion (and get a ruling from the Court) about the additional requested information.

E. Pre-Sentence Report—Formerly Pre-Sentence Investigation (PSI)

A Pre-Sentence Report can be a useful tool in convincing an otherwise reluctant District Attorney to offer probation, or to prepare for an open plea of guilt for probation. Under the amendments to the Texas Code of Criminal Procedure Article 42.12, codified in article 42A, if punishment is being assessed by the Judge, the court is required to order a Pre-Sentence Report, with some exceptions. Tex Code Crim Proc. 42A.252. A defendant is allowed to waive the preparation of a Pre-Sentence Report. Tex Code Crim Proc. 1.14; Griffith v. State, 166 S.W.3d 261, 263 (Tex. Crim.App. 2005). A judge is not required to order a Pre-Sentence Report if punishment is agreed to by plea bargain, the only possible sentence is imprisonment, or if punishment is to be assessed by a jury. Id. A Pre-Sentence Report is also not required in a misdemeanor case if waived by the Defendant or the Judge finds sufficient information is apparent from the record. Id.

A Pre-Sentence Report will include, at the least, a report of the offense, restitution if any, and the criminal and social history of your client, a community supervision plan, IQ testing, or “any other information relating to the defendant or the offense as requested by the judge.” Tex Code Crim Proc. 42A.253. It can also include a drug or alcohol evaluation, Tex Code Crim Proc. 42A.257, and sexual evaluations in cases of sex offenses. Tex Code Crim Proc. 42A.258.

A Judge is not allowed to review the report or disclose it to any party until there is plea or finding of guilt. Tex Code Crim Proc. 42A.254. However, at least 48 hours prior to sentencing a Defendant must be allowed to review the Pre-Sentence report and comment or introduce evidence alleging factual inaccuracy in the report. Tex Code Crim Proc. 42A.255. Be cautious. The State is allowed access to any information provided to the Defense in the Pre-sentence Report. Tex Code Crim Proc. 42A.255(c).

II. Admissibility: What’s Coming In?

As noted above, admissibility of evidence during sentencing is governed in section 37.07 of the Texas Code of Criminal Procedure. The purview is broad, allowing for anything the court deems relevant. Ellison v. State, 201 S.W. 3d. 714, 721 (Tex. Crim. App. 2006). The general, overarching rule is that punishment evidence is relevant if it provides information about the defendant’s life and characteristics. Brooks v. State, 961 S.W.2d 396, 396–400 (Tex.App—Houston [1st Dist.] 1997, no pet.).

A. Relevance

Relevance is not without limits, however. The Texas Court of Criminal Appeals equates relevance analysis to that of Texas Rule of Evidence 401: That evidence is relevant if it has any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence. Tex. R. Evid. 401. “Relevancy in the punishment phase is ‘a question of what is helpful to the jury in determining the appropriate sentence for a particular defendant in a particular case.’ Accordingly, the admissibility of evidence during the punishment phase of a noncapital trial is a function of policy rather than a question of logical relevance.” Ellison v. State, 201 S.W.3d 714, 719 (Tex. Crim. App. 2006), citing Rodgers v. State, 991 S.W.2d 263, 265 (Tex. Crim. App 1999).

On the opposite side, a defense attorney can and should use the broadness of the sentencing law to provide any and as much positive, mitigating information as is available. A defendant’s personal responsibility and moral blameworthiness for the offense is admissible. Miller-El v. State, 782 S.W.2d 892, 896 (Tex. Crim. App. 1990). Evidence that a defendant is remorseful may be admissible. Renteria v. State, 206 S.W. 3d 689, 697 (Tex. Crim. App. 2006). Jurors may consider what sentence will sufficiently punish the defendant, and what sentence is appropriate to deter future criminal conduct of a defendant. Lopez v. State, 860 S.W.2d 938, 946 (Tex.App.—San Antonio 1993, no pet.). Be creative in presenting evidence to judge or jury to lessen your client’s punishment.

B. Penitentiary Packets and Prior Convictions

To prove that a defendant has been convicted of a prior offense, the State must (1) prove the existence of the conviction and (2) link the conviction to the defendant. Flowers v. State, 220 S.W.3d 919, 921 (Tex. Crim. App. 2007). For enhancement purposes the State must also prove that your client’s second previous felony conviction was committed after the first previous conviction became final. Tex. Penal Code § 12.42; Wiggins v. State, 539 S.W.2d 142 (Tex. Crim. App. 1976).

One of the most frequently used pieces of information that will be used against your client to prove prior convictions will be prior Judgments or Penitentiary Packets. While both are hearsay under Texas Rule of Evidence 801, both have exceptions to them under Texas Rule of Evidence 803: TRE 803(6) for Penitentiary Packets as Records of Regularly Conducted Activity and TRE 803(22) as Judgment of a Previous Conviction. Don’t accept the State’s offering of evidence on its face. Just because an exception exists for a type of document does not mean the document fits into the exception.

Look again at Texas Rule of Evidence 803(6), better known as the Business Records Exception. Business records are accepted over a hearsay objection because of their inherent trustworthiness. There is no need for confrontation or cross-examination because the documents themselves are trustworthy. But section 6 has a failsafe built into it when “the source of information or the method or circumstances of preparation indicate lack of trustworthiness.” Tex. R. Evid. 803(6). Courts have recognized that just because information is in a government report that it does not automatically have the “indicia of reliability sufficient to insure the integrity of the fact-finding process and commensurate with the constitutional rights of confrontation and cross-examination.” McCrary v. State, 604 S.W.2d 113 (Tex. Crim. App. 1980), citing Chambers v. Mississippi, 410 U.S. 284 (1973).

Remember too that beyond overcoming hearsay, documents entered into evidence must be authenticated. While the Court of Criminal Appeals has done away with the requirement that a certified judgment from the original court accompany a penitentiary packet to self-authenticate, there must still be some evidence to support that the evidence in question is what its proponent claims. See Reed v. State, 811 S.W.2d 582, 587 (Tex. Crim. App. 1991); Tex. R. Evid. 901.

Even if a penitentiary packet is admitted, be careful to review what information is being admitted. Just because the record itself is admissible, the probable cause affidavit, victim impact statement, motions to revoke probation, or random notations in the file containing testimonial information are not subject to cross-examination and should not be admissible. When a business record contains “sterile recitations . . . of offenses and pun­ishments,” that information can be admitted as a business record. Ford v. State 179 S.W.3d 203, 208 (Tex.App—Houston [14th Dist.] 2005, pet. ref’d). However, incident reports or disciplinary reports from correctional facilities or the like that include statements from corrections officers or narrative reports are not admissible if those individuals are not there to testify to them in open court. Russeau v. State, 171 S.W.3d 871, 880 (Tex Crim. App. 2005). Make sure to object to those statements to keep them out.

One special circumstance to look at is prior Juvenile Convictions. An adjudication under Texas Family Code Section 54.03 provides that when a child engages in conduct that occurred on or after January 1, 1996, that results in a commitment to the Texas Youth Commission, it is a final felony conviction for enhancement purposes. Tex. Penal Code § 12.42(f). However, because of the Family Code’s limitation of the effect of juvenile felonies, “a defendant with only a juvenile felony can apply for probation and truthfully aver that he has not been previously convicted of a felony.” Thompson v. Sate, 267 S.W.3d 514, 517 (Tex. App. Austin 2008, pet. ref’d). Those juvenile priors can’t remove your client’s eligibility for probation, but they can enhance the punishment.

Finally, remember that with any extraneous offense the State must prove the offense beyond a reasonable doubt. Tex Code Crim Proc. 37.07 § 3(a)(1). The defense has an absolute right to request that the court make a determination that the State has sufficient evidence to prove it to a jury beyond a reasonable doubt prior to it being submitted to the jury. Harrell v. State, 884 S.W.2d 154, 160 (Tex. Crim. App. 1994).

Look at what evidence is in the packets and judgment to reflect that the person in that judgment is your client. Most often this is done by comparing fingerprints in the judgment or penitentiary packet to fingerprints from your client. Review the prints in the packets beforehand if possible and see if they are viable. Always review the demographic and identifying information. You will be amazed at how often typos and mistakes occur that may keep a prior judgment out of evidence.

C. Other Objectionable Evidence

Evidence that is admissible during the sentencing phase of a trial is broad, but 37.07 does not give the State cart blanche to the judge or jury. Aside from objections to relevance, the Texas Rules of Evidence addressing hearsay, privilege, competency of witnesses (either lay or expert), and authentication of exhibits still apply. This is in addition to constitutional rights of confrontation of witnesses for any evidence to be presented. Although outside the scope of this paper, objections based on Crawford, Melendez-Diaz, and Daubert all still apply during a sentencing hearing. Constitutional protections do not go out the window just because your client has plead or been found guilty.

Ultimately, whether evidence is relevant is left to the trial court, which has broad discretion in making that determination. Rodriguez v. State, 203 S.W.3d 837, 841 (Tex. Crim. App. 2006). Don’t roll over and just accept that everything that the State attempts to introduce is relevant, and in the same breath fight for the relevancy of any positive piece of information you can find.

III. What Should We Be Looking For?

From the first day of being appointed to or retained by a client, we have to start the process of finding positive information about them. The purpose of this is threefold: first obviously to help counter the view that our client’s purported crime makes them an unsalvageable criminal. The second is that collateral information from friends, family, doctors, therapists, and so on may assist in winning a case outright. Finally, identifying prob­lem areas that our clients may have such as anger management, drugs, or psychological issues and addressing them far before trial will not only help with showing remedial measures at trial but will probably help in your attorney-client relationship as well.

A. Friends and Family

Aside from being the first and most obvious place to start humanizing our clients, failure to interview friends, family, teachers, coaches, co-workers, church members, and so on for mitigating evidence in our client’s past has been found to be ineffective. See Wiggins v. Smith, 539 U.S. 510 (2003). Kevin Wiggins was convicted of first-degree murder, robbery, and theft. Wiggins’ attorneys failed to present evidence of their client’s difficult child­hood, including evidence of alcoholic parents and sexual abuse by his foster parents. The Supreme Court found their performance to be deficient not because they failed to present the mitigating evidence, but because they failed to investigate mitigating factors. A court will be hesitant to second-guess trial strategy if an attorney determines that a client’s background would not be helpful in trial, but the decision not to pursue such avenues must be based on professional judgment, not failure to investigate. Ex Parte Woods, 176 S.W.3d 224, 228 (Tex.Crim.App. 2005).

Don’t limit your investigation just to people. School, military, CPS, medical, and prior criminal records all can provide insight into the human being that your client is. You know that the State is going to introduce that aggravated robbery charge, so find the records that mitigate the prior offense. The State is going to show one side and one side only of your client. Your job is to paint the rest of the picture.

B. Medical and Psychological Experts

Medical and scientific advances are beginning to call into question the volition behind many criminal acts. Minor changes in the balance of brain chemistry, even small ones, can cause large and unexpected changes in behavior. See, e.g., David Eagleman, “The Brain on Trial,” The Atlantic (July/August 2011), available online at http://www.theatlantic.com/magazine/
archive/2011/07/the-brain-on-trial/8520/1/. Beyond biological changes brought on by drugs and disease, our very ability to make appropriate choices is influenced by our beginning biology and the environment we grow up in. Our client’s mother’s substance abuse during pregnancy, low birth weight, neglect and physical abuse as a child, head injuries, and untreated childhood disease all affect development—and accordingly their adult ability to control behavior. Alternatively, consider a completely well-developed adult and introduce completely legal medication such as Xanax, Lunestia, or Ambien and you can and will find bizarre and frightening results.

It is extremely important that all of these avenues be researched, and it is our duty as attorneys to educate ourselves on our client’s issues and situations. In your interviews with friends, family, and doctors, find out what medication your client is on and what medical problems they have. Know the side effects of the medication your client is taking. Familiarize yourself with more common psychological disorders to be able to spot them in clients who may have never been diagnosed. When friends and family tell you that the criminal actions your client is accused of are completely out of character, ask yourself, “What is causing it then?” A change in medication? An undiagnosed issue? Remember, it was a nickel-sized brain tumor on the thalamus of Charles Whitman’s brain that caused him to kill 13 people and wound 32 more from the UT Tower in 1966.

In order to be able to truly assist your clients you will at some point need expert assistance. Psychologist, psychiatrists, medical doctors, therapists, pharmacologists, and so on can help with biological and developmental explanations and mitigation. Gang experts, parole experts, and prison consultants can help convince a judge or jury that a shorter sentence with rehabilitation would be more beneficial than long-term incarceration. The goal is to explain the factors that led to a bad decision, and how those risk factors can be taken away in the future through treatment, medication, and rehabilitation.

If your client, either appointed or retained, is indigent and cannot afford to pay for necessary expert assistance, you must request court funds pursuant to Ake v. Oklahoma, 470 U.S. 68 (1985). If you cannot get the money you need to properly investigate your case, you should move to withdraw. Ex Parte Briggs, 187 S.W.3d 458, 468 (Tex. Crim.App. 2005).

IV. Technical Considerations

A. Enhancing Ranges of Punishment

For every case, step through your information or indictment for the charge itself and every enhancement allegation. There are specific enhancements to different types of crimes (e.g., multiple charges of DWI, Burglary of a Motor Vehicle, Evading Arrest, or Prostitution) and different enhancements outside the charges themselves. A Drug Free Zone enhancement, found in Texas Health and Safety Code § 481, will not only increase the potential jail time for your client, but can also make the sentence automatically stacked. Tex. Health & Safety Code § 481.134(h). Also, don’t be surprised if the State is attempting to enhance something improperly. Go through each and every charging instrument every time.

Different enhancement rules apply to different levels of charges. It is important to figure out if the charge your client is facing has been enhanced, or only the punishment range. State Jail Felonies will always be State Jail Felonies. Even if the punishment is enhanced by prior State Jail or penitentiary trips, they are still State Jail convictions. This does two things. First, your client can never face more than second-degree penalty ranges for a State Jail offense, 2–20 years. See Dickson v. State, 986 S.W.2d 799, 803 (Tex. App. Waco 1999). Second, even if a prior charge has been enhanced to penitentiary-level punishment, a State Jail offense can never be used to enhance a 1st-, 2nd-, or 3rd-degree felony. Campbell v. State, 49 S.W.3d 874, 877 (Tex. Crim. App. 2001).

Remember too that in enhancing 1st-, 2nd-, and 3rd-degree felonies, “the State carries the burden of proving beyond a reasonable doubt that a defendant’s second previous felony conviction was committed after the defendant’s first previous felony conviction became final.” Jordan v. State, 256 S.W.3d 286 (Tex. Crim. App. 2008). A conviction is not final if a case is appealed. Jones v. State, 711 S.W. 2d 634, 636 (Tex. Crim. App. 1986). If the evidence of a prior conviction raises the question of an appeal or final disposition, the State has the burden of making a prima facie showing of finality. Id.

Finally, remember that even if your client is convicted, but is given community supervision, the conviction is not final (so cannot be used to enhance) unless the community supervision is revoked. Ex Parte White, 211 S.W.3d 316 (Tex. Crim. App 2007), citing Ex parte Langley, 833 S.W.2d 141, 143 (Tex. Crim. App. 1992), citing Ex parte Murchison, 560 S.W.2d 654, 656 (Tex. Crim. App. 1978). (“[I]t is well-settled that a probated sentence is not a final conviction for enhancement purposes unless it is revoked”). More importantly, if a conviction is set aside after probation pursuant to Texas Code of Criminal Procedure 42A.701(f), that person “is not a convicted felon.Cuellar v. State, 70 S.W.3d 815, 818 (Tex. Crim. App 2002) (emphasis in original). Rudy Cuellar was convicted of Unlawful Possession of a Firearm by a Felon, but had his conviction overturned because the underlying predicate felony was discharged after community supervision. Id.

The Legislature has made an exception where some probated sentences can be used to enhance in Texas Penal Code § 12.42(g). Check all of the enhancements that the State is attempting to use against your client, and make sure they are actually useable to enhance.

On a practical note, try and be strategic in how you deal with enhancement paragraphs. Remember that just because an enhancement is presented, the judge or jury does not have to find them true. They must be proven beyond a reasonable doubt. This can create an equitable argument for your client who is facing 25 to life because of 2 prior felony convictions from 30 years ago. There is no legal basis for a judge or jury ignoring proof of a prior, but it can be done. Alternatively, if you are looking at deferred probation when enhancement paragraphs are present, ask your judge to defer a finding on the enhancement paragraphs as well. That way if revoked, your otherwise 25-to-life client may still have some wiggle room if you can work out a plea.

B. Stacking

The concurrent or cumulative imposition of sentencing is governed by Texas Code of Criminal Procedure § 42.08 and Texas Penal Code § 3.03. For multiple offenses out of the same criminal episode that are prosecuted in one trial, the sentences must run concurrently unless they fall under the exceptions to § 3.03, or are specific in the charge as with Drug Free Zones mentioned above. If the offenses are out of multiple criminal episodes, or if they are tried separately, the decision to run sentences concurrently or consecutively is completely in the discretion of the Judge. Tex Code Crim Proc. § 42.08. Even if you elect to have a jury assess punishment, a judge may still stack punishments within their discretion. Barrow v. State, 207 S.W.3d 377, 379–380 (Tex. Crim. App. 2006).

Make sure to check that the offense you are defending is not stackable, or mandatorily stacked. One way to get around mandatory stacking is to plea bargain or have your client found guilty of an “attempt” of the offense. A conviction for an attempt to commit one of the offenses under Section 3.03 does not qualify for the stacking of sentences. Parfait v. State, 120 S.W.3d 348, 350 (Tex. Crim. App. 2003).

C. Judge v. Jury

The determination of whether you will present your case for punishment to judge or jury will largely be a case-by-case determination. It will depend on the judge you are in front of, the jury pool you can expect to draw from, and how your specific facts will play to each one. Take the time to research your audience. If you are not familiar with a judge or jurisdiction, ask attorneys who have practiced there before. One judge may be great to hear a certain case, while the other may tend to give defendants maximum sentences.

In either instance, you must make the election for punishment prior to the beginning of voir dire. If an election is not made, then punishment will be determined by the judge. Tex Code Crim Proc. 37.07 § 2(b). In order to elect for a jury to assess punishment, the request must be made in writing prior to the beginning of jury selection. Id. After a finding of guilty you can change your election of who will assess punishment, but only with the consent of the State. Id.

Aside from personality determinations on who will assess punishment, there are some technical matters to keep in mind. The judge is the only person who can give your client Deferred Adjudication Probation—and then only on a plea of guilty or nolo contendre. Tex Code Crim Proc. 42A.101. As an interesting side note, depending on the judge you are in front of, the judge may still acquit your client upon a plea of nolo contendre. See In re State ex rel. Villalobos, 2006 Tex. App. LEXIS 109, 2006 WL 20617 (Tex. App. Corpus Christi Jan. 3, 2006) (mem. op., not designated for publication). In contrast, a judge cannot give straight probation in cases that involve a finding of a deadly weapon, murder, capital murder, indecency with a child, aggravated kidnapping, aggravated sexual assault, aggravated robbery, sexual assault, injury to a child in the first degree, sexual performance of a child, criminal solicitation in the first degree, if there is an affirmative finding of a Drug Free Zone or that a child was used in a drug offense, or when the minimum punishment is over ten years. See Tex Code Crim Proc. 42A.054. Many, but not all, of those charges can receive deferred adjudication.

If you elect to have a jury assess punishment, then the judge is required to suspend the sentence if it is recommended by the jury and the defendant otherwise qualifies for probation. Tex Code Crim. Proc. 42A.055. In order to qualify, the defendant must have not been previously convicted of a felony and must file a sworn motion before the commencement of trial to that fact. Tex Code Crim. Proc. 42A.055(b). The length of the community supervision cannot be less than the penalty recommended by the jury. Tex Code Crim Proc. 42A.053(d)(1). For example, if the jury returns a sentence of five years with a recommendation for community supervision, the least amount of community supervision the judge can impose is five years. Remember, even a jury cannot recommend community supervision for a sentence over ten years, or for a conviction for indecency with a child, aggravated sexual assault, sexual assault, sexual performance by a child, aggravated kidnapping of a child under 14 with the intent for sexual abuse, or murder. Tex Code Crim. Proc. 42A.056. Additionally a jury cannot recommend community supervision if there is an affirmative finding of a drug-free zone when there has been one in the past. Id.

The other consideration to make when presenting a punishment case to a jury is how to start preparing them in voir dire. It can seem weird to talk to a jury about punishing your client in the same breath that you’re reminding them about the high burden of beyond a reasonable doubt and how your client is innocent until proven guilty. It doesn’t have to be, though. In fact, ferreting out jurors’ opinions on punishment and rehabilitation can often help identify those jurors who would be better or worse during the guilt and innocence portion of your trial. It is a proper question to ask the panel what factors they feel are important in assessing a sentence. Davis v. State, 349 S.W.3d 517, 519 (Tex. Crim. App. 2011). It is also proper to ask prospective jurors if they can follow charging instructions not to consider parole, and if they can consider the entire range of punishment. Jones v. State, 223 S.W.3d 379, 382 (Tex. Crim. App. 2007). Knowing what buttons may press a juror one way or another can assist not only in punishment but also when presenting your client’s case, which will hopefully keep you from having to make that punishment case at all.

D. Community Supervision

Too often, prosecutors, and even our judges and jurors, think that probation is akin to an acquittal. It is anything but. Knowing what Community Supervision is, and what it is not, can help you overcome this perception and get your client on probation if that is what they want. More importantly, knowing ahead of time what probation is really going to mean for your client will help you plan accordingly to advocate for that goal.

As noted above, there are two types of community su­per­vision: deferred adjudication or a suspended sentence, a.k.a. straight probation. Deferred adjudication probation, while potentially beneficial because there is no finding of guilt, has limitations and potential liabilities that should be considered. Only a judge can grant deferred adjudication. Tex Code Crim Proc. 42A.101. However, a judge cannot grant deferred adjudication in a number of cases. Additionally, your client will face the entire range of punishment on a showing that they violated their deferred community supervision. It is important to consider what is more important: avoiding a final conviction or limiting your client’s potential exposure to incarceration down the road. Finally, remember that deferred adjudication will not remove the entire taint of a guilty plea. Even after dismissal and discharge, deferred adjudication can be used in subsequent punishment proceedings. Tex Code Crim Proc. 42A.111 It can also be used in consideration for certain licenses, and cannot remove af­firmative findings of family violence or requirements under the Sex Offender Registration Program. Id. Deferred adjudication will also usually be treated the same as a finding of guilt for deportation and removal proceedings with Immigration. Moosa v. INS, 171 F.3d 994, 1005–06 (5th Cir. 1999) (holding that deferred adjudication is considered a conviction for immigration purposes).

In contrast, a suspended sentence or straight probation is where your client is sentenced to some term in jail or prison and then that sentence is suspended pending some period of community supervision. In this type of probation your client is convicted of the underlying crime and will remain so without additional action by a judge. See Tex Code Crim Proc. 42A.701.

Additionally, be aware that § 42A.301 gives the judge the ability to 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.” Tex Code Crim Proc. 42A.301(a). This includes confinement as a condition of probation, which can be added at any time during the probation. Tex Code Crim Proc. 42A.302.

There are limitations on conditions of probation that a judge may impose based on your client’s ability to pay for those conditions. A judge must consider the ability of a defendant to make payments before imposing monetary conditions as a condition of probation. Tex. Code Crim. Proc. 42A.655. The trial court’s ability to order terms and conditions of probation is limited to the ability of the defendant to pay. Mathis v. State, 424 S.W.3d 89, 94 (Tex. Crim. App. 2014).

Be aware of what will be and may be required of your client on supervision. This is important for three reasons. The first is when making a plea for probation to judge or jury, you can use this information to remind them that probation is not letting your client get away with anything. The State will often argue that probation is somehow the same as an acquittal, which is simply not the case. The second is to be aware of what conditions are usually imposed, what conditions are going to be imposed, and argue for your clients on what should be imposed. Conditions of probation are completely within the discretion of the judge, which means that conditions can be added or taken away depending on what we ask for.

Finally, make sure that probation is the right thing for your client. Is it in the client’s best interest to have 25 to life hanging over their head with a pretty good chance they will violate their probation? Should they place themselves under the control of the court for up to ten years when they could resolve the case with some relatively small amount of jail time? These are important factors to consider when deciding on what to ask for in a punishment case.

V. Conclusion

Let’s be honest: Punishment is the last place that any defense attorney really wants to be. It means we lost, right? No, not necessarily. What happens to our clients after they’ve been convicted is just as important (or sometimes more so) than whether they are convicted. The conviction on their record may mean a lot less than the number of days, months, or years that they will be spending in prison. Punishment is the place that with good preparation and a little creativity we can make a real difference for our clients.