Sentencing Range and Probation Period Not Linked

By October 4, 2011Sentencing

Probation sentence in TexasThe punishment range for a second-degree felony sexual assault is 2-20 years in prison. However, the minimum period of community supervision (i.e. probation) for the same offense is five years. So can a trial court award community supervision if the jury returns a punishment verdict of less than five years? Here’s how this situation played out down in Houston:

A jury found a defendant guilty of the second-degree felony of sexual assault. On sentencing, the jury awarded the defendant the minimum punishment (two years) and further recommended community supervision (a recommendation the trial judge is required to take). The trial judge, however, informed the jury that its verdict was illegal because the minimum period of community supervision is five years. The trial court essentially instructed the jury that if it wanted to recommend community supervision, it must sentence the defendant to at least five years (which would then be probated). Following instructions, the jury went back and returned a verdict of five years with a recommendation for community supervision.

Was the trial court correct in his instructions to the jury?

NO, says the Texas Court of Criminal Appeals in Mayes v. State.

There is nothing in Article 42.12 (Tex. Code Crim. Proc.) that states, or even suggests, that the 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 the defendant on community supervision. The judge must follow that recommendation, but he has the discretion to determine the appropriate period of supervision, as long as it within the minimum and maximum statutory period.

The CCA opinion makes clear that the statutory minimums for punishment and community supervision are not inextricably linked.

[A] rule that a jury cannot assess the minimum sentence in a case if it also wants the defendant to serve that sentence on community supervision would lead to an absurd result.

Accordingly, the CCA reversed the judgment of the court of appeals.

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