Texas Juries Can No Longer Recommend Community Supervision When Victim is Child Under 15, Elderly or Disabled
By: Houston Criminal Defense Attorney John Floyd and Paralegal Billy Sinclair
Community supervision, or probation as most people know it, has been defined by federal courts as an “imprisonment substitute” because the criminal sentence is not served in a penal institution. See: United States v. Elkins, 176 F.3d 1016, 1020 (7th Cir. 1999).
In the State of Texas community supervision is a privilege, not a right. See: Flores v. State, 904 S.W.2d 129, 130 (Tex. Crim. App. 1995), cert. denied, 516 U.S. 1050 (1996). It is a punishment alternative that must either be agreed to between the state and defendant, ordered by a judge or recommended by a jury.
The Flores court specifically stated that “there is no fundamental right to receive probation [community supervision]; it is within the discretion of the trial court to determine whether an individual is entitled to probation.” Id.
In Texas, community supervision can be granted either by the trial judge or assessed by the jury. See: Tex. Code Crim. Proc. art. 42.12(3)(a); (4)(d).
While there is no fundamental right to community supervision, § 42.12(3)(a) requires that the judge impose community supervision “in the best interest of justice, the public, and the defendant” – all three of which are legitimate government purposes. Flores, 904 S.W.2d at 131.
Similarly, in federal court a district judge may depart from the U.S. Sentencing Guidelines’ prison recommendation and impose probation but only after he/she has considered all the sentencing factors listed in 18 U.S.C. § 3353. See: United States v. Toohey, 448 F.3d 542, 546-47 (2d Cir. 2006).
The discretion of the trial judge in Texas to grant, and the jury’s authority to assess, community supervision are likewise limited by statute. For example, Subsection 3g(a) of § 42.12(3) prohibits the trial judge from granting community supervision:
(1) to a defendant adjudged guilty of an offense under:
(A) Section 19.02, Penal Code (Murder);
(B) Section 19.03, Penal Code) (Capital murder);
(C )Section 21.11(a)(1), Penal Code (Indecency with a child);
(D) Section 20,04, Penal Code (Aggravated kidnapping);
(E) Section 22.021, Penal Code (Aggravated sexual assault);
(F) Section 29.03, Penal Code (Aggravated robbery);
(G) Chapter 481, Health and Safety Code, for which punishment is increased under:
(i) Section 481.140, Health and Safety Code; or
(ii) Section 481.134(c), (d), (e), or (f), Health and Safety Code, if it is shown that the defendant has been previously convicted of an offense for which punishment was increased under any of those subsections;
(H) Section 22.011, Penal Code (Sexual assault); or
(I) [2 Versions: As added by Acts 2007, 80th Leg., ch. 405] Section22.04(a)(1), Penal Code (Injury to a child, elderly individual, or disabled individual), if the offense is punishable as a felony of the first degree and the victim of the offense is a child; or
(I) [2 Versions: As added by Acts 2007, 80th Leg., ch. 593]Section 43.25, Penal Code (Sexual performance by a child); or
(2) to a defendant when it is shown that a deadly weapon as defined in Section 1.07, Penal Code, was used or exhibited during the commission of a felony offense or during immediate flight there from, and that the defendant used or exhibited the deadly weapon or was a party to the offense and knew that a deadly weapon would be used or exhibited. On an affirmative finding under this subdivision, the trial court shall enter the finding in the judgment of the court. On an affirmative finding that the deadly weapon was a firearm, the court shall enter that finding in its judgment.
(b) If there is an affirmative finding under Subsection (a)(2) in the trial of a felony of the second degree or higher that the deadly weapon used or exhibited was a firearm and the defendant is granted community supervision, the court may order the defendant confined in the institutional division of the Texas Department of Criminal Justice for not less than 60 and not more than 120 days. At any time after the defendant has served 60 days in the custody of the institutional division, the sentencing judge, on his own motion or on motion of the defendant, may order the defendant released to community supervision. The institutional division shall release the defendant to community supervision after he has served 120 days.
The two revisions under Subsection (I) reflect the hard line stand taken by the Texas Legislature in 2007 against sex offenders. Increased numbers of high profile cases involving teachers having sex with students, penal staff sexually abusing juvenile inmates, and sexual predators trolling the Internet for young victims created the legislative attitude that incarceration is the only penological way to deal with sex offenders in cases involving young victims. The Legislature also elected to restrict the authority of juries to recommend community supervision. Section 4 of § 42.12 now provides:
(a) A jury that imposes confinement as punishment for an offense may recommend to the judge that the judge suspend the imposition of the sentence and place the defendant on community supervision. A judge shall suspend the imposition of the sentence and place the defendant on community supervision if the jury makes that recommendation in the verdict.
(b) If the jury recommends to the judge that the judge place the defendant on community supervision, the judge shall place the defendant on community supervision for any period permitted under Section 3(b) or 3(c) of this article, as appropriate.
(c) A judge may increase the maximum period of community supervision in the manner provided by Section 22(c) or Section 22A of this article.
(d) A defendant is not eligible for community supervision under this section if the defendant:
(1) is sentenced to a term of imprisonment that exceeds 10 years;
(2) is convicted of a state jail felony for which suspension of the imposition of the sentence occurs automatically under Section 15(a);
(3) does not file a sworn motion under Subsection (e) of this section or for whom the jury does not enter in the verdict a finding that the information contained in the motion is true;
(4) is convicted of an offense for which punishment is increased under Section 481.134(c), (d), (e), or (f), Health and Safety Code, if it is shown that the defendant has been previously convicted of an offense for which punishment was increased under any one of those subsections; or
(5) [2 Versions: As added by Acts 2007, 80th Leg., ch. 593] is convicted of an offense listed in Section 3g(a)(1)(C), (E), or (H), if the victim of the offense was younger than 14 years of age at the time the offense was committed;
(5) [2 Versions: As added by Acts 2007, 80th Leg., ch. 1205] is adjudged guilty of an offense under Section 19.02, Penal Code.
(6) is convicted of an offense listed in Section 3g(a)(1)(D), if the victim of the offense was younger than 14 years of age at the time the offense was committed and the actor committed the offense with the intent to violate or abuse the victim sexually; or
(7) is convicted of an offense listed in Section 3g(a)(1)(I).
(e) A defendant is eligible for community supervision under this section only if before the trial begins the defendant files a written sworn motion with the judge that the defendant has not previously been convicted of a felony in this or any other state, and the jury enters in the verdict a finding that the information in the defendant’s motion is true.
(f) The minimum period of community supervision under this section for an offense under Section 34.04, Penal Code, punishable as a Class A misdemeanor with a minimum term of confinement of six months is one year.
The Legislature effectively said the juries can no longer recommend community supervision in the following crimes if the victim is 14 years of age or younger: indecency with a child; aggravated kidnapping; aggravated sexual assault; sexual assault; and injury to a child, elderly individual, or disabled person.
Interestingly, however, juries can still recommend community supervision for criminal defendants who kidnap, sexually assault, or injure anyone from ages 15 to 65. Furthermore, juries can still recommend community supervision for individuals convicted of murder or aggravated robbery so long as the jury recommends a sentence of less than 10 years.
There are several fundamental rules about community supervision criminal defense attorneys must be aware of:
The trial court cannot assess community supervision as a sentencing option for certain crimes listed in 3g. Art. 42.12 § 3g(a)(1)(C).
Community supervision requires a finding of guilt and formal assessment of punishment. Art. 42.12 § 2(2).
Deferred adjudication, on the other hand, must be entered before a formal finding of guilt. Rodriquez v. State, 2006 Tex. App. LEXIS 2013 (Tex.App.-Houston [1st Dist.] March 16, 2006).
The terms community supervision and probation are frequently used interchangeably. Howard v. State, 2003 Tex.App. LEXIS 4298 (Tex.App.-Houston [14th Dist.] May 22, 2003).
The trial judge has discretion in determining the conditions to be imposed under community supervision. Speth v. State, 6 S.W.3d 530, 533 (Tex.Crim.App. 1999).
A specific condition of community supervision will be found invalid only if it has no relationship to the offense charged, it relates to conduct that is not in itself criminal, and forbids or requires conduct that is not reasonably related to the future criminality of a defendant or does not serve the statutory ends of community supervision. Lacy v. State, 875 S.W.2d 3, 5 (Tex.App.-Tyler, 1994, no pet).
In order to preserve for appeal a challenge to a condition of community supervision, the defendant must make a timely and specific objection. Tex. R. App. P. 33.1(a).
A court of appeals recently had an opportunity to determine whether a trial court had the authority to place a “3g” defendant on “shock” probation. See: Texas v. Dunbar, 2008 Tex.App. LEXIS 7854 (Tex.App.-Beaumont, Oct. 15, 2008). The court held that the defendant, Wendy R. Dunbar, “was ineligible for community supervision on the date the trial court suspended execution on her four year sentence for indecency with a child by sexual contact.” Id., at LEXIS 2.
Dunbar’s crime occurred in June 1996. In June 1997 the trial court deferred adjudication of guilt and placed Dunbar on community supervision for 10 years. In April 2007 the State moved to adjudicate guilt. The trial court in September 2007 convicted Dunbar and imposed a four-year sentence of incarceration. In December 2007 Dunbar filed a motion to impose community supervision, and in February 2008 the trial court signed “a shock community supervision order.” Id. The State appealed and the appeals court found:
”’[C]ommunity supervision is not a sentence or even a part of a sentence.’ In this case, the execution on the sentence is at issue, not the sentence itself. The State has appealed an order that ‘arrests or modifies a judgment.’ The judgment includes the sentence but is not limited to the sentence. Because a community supervision order arrests or modifies a judgment, [Tex. Code Crim. Proc.] Article 44.01(a)(2) authorizes the State to appeal a shock community supervision order. The State may appeal an order that modifies a judgment regardless of the legal grounds for the appeal. The notice of appeal filed in this case invoked our appellate jurisdiction and the State was statutorily authorized to pursue the appeal. Therefore, we turn to the merits of the State’s issue.
”Within 180 days from the date the execution of a sentence actually begins, the judge of the court that imposed the sentence may suspend further execution of the sentence and place the defendant on community supervision. This grant of power to the trial judge is not unlimited, however; the shock community supervision statute expressly requires that ‘the defendant is otherwise eligible for community supervision under this article[.]’ Judge-ordered community supervision is not available to a defendant who has been adjudged guilty of indecency with a child by sexual contact.” Id., at LEXIS 2-3 [Internal citations omitted].
Dunbar is clearly a harbinger of things to come. The appeals court have not had an opportunity to rule of challenges to the 2007 amendments to § 42.12. In all likelihood, the amendments will be upheld, and any illegal granting of community supervision to ineligible defendants will result in reversal as in Dunbar.
The logical question to be resolved, however, is whether the 2007 legislative amendments to § 42.12, which became effective September 1, 2007, apply to offenses that occurred prior to that effective date. Both the federal and Texas constitutions forbid ex post facto law. See: U.S. Const. art. I, §§ 9 cl. 3, 10 cl. 1; Tex. Const. art. I, § 16. An ex post facto law violation occurs when legislature changes a punishment and inflicts a greater punishment than the law attached to a criminal offense when committed. See: Carmell v. Texas, 529 U.S. 512, 522-25 (2000); Rodriquez v. State, 93 S.W.3d 60, 66 (Tex. Crim. App. 2002).
Altering and changing the conditions of a punishment does not necessarily establish an ex post facto violation. For example, Texas courts have rejected ex post facto claims in the following situations:
Defendant had been charged with indecency with a child and placed on community supervision without an adjudication of guilt. Before expiration of his community supervision, State filed a motion to revoke the supervision. The trial court adjudicated defendant’s guilt but once again placed him on community supervision with condition that he register as a sex offender. The defendant challenged the sex offender registration requirement as an ex post facto violation. The court rejected that argument, finding that the defendant was not subjected to a greater punishment, nor had the punishment been changed. See: Cooper v. State, 2 S.W.3d 500 (Tex.App.-Texarkana 1999).
A juvenile defendant challenged a September 1, 2003 amendment that changed the eligibility for placement in the Texas Youth Commission. Even though the defendant’s original adjudication of guilt occurred before September 1, 2003, the violation of his probation that led to his commitment to the Texas Youth Commission occurred after September 1, 2003; therefore, there was no ex post violation. See: In re U.G.V., 199 S.W.3d 1 (2005).
Juvenile defendant challenged change in law that required him to submit to DNA sample as ex post facto violation because law not in effect at time of offense. Court rejected the challenge. See: In re D.L.C., 124 S.W.3d 354 (Tex.App-Fort Worth 2003).
State argued on appeal that the statute used to enhance defendant’s DWI punishment was in effect when the defendant engaged in the conduct at the issue. The appeals court agreed, saying that since the enhancement statute did not change after the defendant’s arrest, the statute did not assign more severe criminal or penal consequences to his conduct than did the law in place when the alleged criminal conduct occurred. See: State v. Pieper, 231 S.W.3d 9 (Tex. App.-Houston [14th Dist.] 2007).
These cases, however, do not end the constitutional inquiry. The U.S. Supreme Court has held that changes of parole guidelines may violate the ex post facto clause if prisoners are “unquestionably disadvantaged” by changes that create a “significant risk” of increased incarceration. See: Lynce v. Mathis, 519 U.S. 433, 446-47 (1997). The Lynce court found that the retroactive cancellation of early release credits having the effect of returning the parolee to prison violated the ex post facto clause because it “prolonged the imprisonment” and therefore “unquestionably disadvantaged” the parolee. Id. The federal courts have found ex post facto violation in the following circumstances:
Ex post facto violation by retroactive application of more restrictive standards for evaluating parole eligibility. See: Mickens-Thomas v. Vaughn, 321 F.3d 374, 390-91 (3d Cir. 2003).
Ex post facto violation by retroactive application of amended parole statute that would make defendant permanently ineligible for parole. See: Fender v. Thompson, 883 F.2d 303, 307 (4th Cir. 1989).
Ex post facto violation for retroactive application of regulation that eliminated right to individual hearing when parolee convicted of felony while on parole. Kellogg v. Shoemaker, 46 F.3d 503, 509-10 (6th Cir. 1995).
Ex post facto violation when change in parole regulation removed prisoner’s right to recoup lost good-time credits. See: Hunter v. Ayers, 336 F.3d 1007, 1011 (9th Cir. 2003).
Ex post facto violation by retroactive application of amendment removing earned good time credits because it was substantial change that was not foreseeable. See: Smith v. Scott, 223 F.3d 1191, 1196 (10th Cir. 2000).
Ex post facto violation because prisoner showed “significant risk that his punishment will be increased” by retroactive application of new federal re-parole guidelines. See: Fletcher v. Reilly, 433 F.3d 867, 879 (D.C. Cir. 2006).
The State will undoubtedly respond to ex post facto challenges to the 2007 amendments to § 42.12 by saying that probation/community supervision is a privilege, not a right, and that the elimination of the privilege did not make the punishment greater but rather removed a privileged benefit attached to the punishment. The problem is that the State’s argument does not meet constitutional muster under the Lynce rationale. The removal of probation/community supervision eligibility certainly created “prolonged incarceration” potential and therefore a defendant whose offense occurred before September 1, 2007 would be “unquestionably disadvantaged” by application of the 2007 amendments to his case.
Therefore, a criminal defense attorney representing a defendant whose offense occurred before September 1, 2007 must timely file a sworn motion proving up probation under 42.12(4)(A)(e) which provides that: “A defendant is eligible for community supervision under this section only if before the trial begins the defendant files a written sworn motion with the judge that the defendant has not previously been convicted of a felony in this or any other state, and the jury enters in the verdict a finding that the information in the defendant’s motion is true.”
Under this article, a criminal defendant has a two-fold burden. First, he must file a “sworn motion,” and, second, he must prove that he has never been convicted of a felony. The sworn motion and proof are separate, independent requirements. The mere filing of a sworn motion stating that the defendant does not have a prior felony conviction is an insufficient showing that the defendant is eligible for community supervision from a jury. See, Palasota v. State, 460 S.W.2d 137, 140-41 (Tex.Crim.App. 1970). See also: Beyince v. State, 954 S.W.2d 878 (Tex.App.-Houston [14th Dist.] 1997 pet. ref’d).
If the court rejects the motion and declares the 2007 amendments to § 42.12 applicable to pre-September 1, 2007 offenses, the attorney must object and preserve the issue for appeal.
By: Houston Criminal Defense Attorney John Floyd and Paralegal Billy Sinclair