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Probation Revocation

Jan 25
Love1
Juvenile Probation Tarrant County

An Introduction to Juvenile Probation in Tarrant County

By Juvenile

Juvenile Probation Tarrant CountyMany people have the perception that the juvenile system is simply a slap on the wrist for kids, regardless of the offense. The reason for this belief is the fact that most kids in the juvenile system get probation. But, probation is not always that simple or easy. This is an introduction to juvenile probation in Tarrant County. This article will cover the reasons behind the tendency towards probation, the length and parameters of probation and what it can include.

The Reasons Behind a Probation Heavy System

According to Section 51.01 of the Texas Family Code, the purposes of the juvenile justice system are to protect the public, promote the concept of punishment for criminal acts, to remove the taint of criminality from children, and to provide treatment, training, and rehabilitation that emphasizes accountability for the parent and child for the child’s conduct. This section goes on to state that a child should be removed from his parents only when it is necessary for the welfare of the child or the interest of the public safety. Section 51.01 forms the foundation for which the entire juvenile justice system is based on.
Because of this mandate in Section 51.01 that children should only be removed when necessary, probation with the child remaining in the home is the primary mode of punishment and rehabilitation used by the Tarrant County Juvenile Services Department. The system is not geared towards ripping a kid away from his family, but is built to address and correct the behavior by working with the child and the family together.

The Length and Parameters of Juvenile Probation

In the adult system, a person is only eligible for probation on their first felony offense. In the juvenile system, however, probation is the preferred outcome on cases due to the Family Code’s preference for keeping children in the care of their parents. Under the provisions of the Family Code, a juvenile is eligible for probation on any offense, up to and including murder. For misdemeanor offenses, probation is the only option available.

The maximum length of probation, regardless of offense, is generally up to a child’s 18th birthday. In circumstances involving the most serious offenses or habitual offenders, the prosecutor may seek a determinate sentence which extends the possible punishment. On determinate sentence cases, probation can last for a maximum of ten years. In Tarrant County, prosecutors generally only seek determinate sentences in the most serious of cases.

What Juvenile Probation Can Include

Juvenile probation in Tarrant County can include a wide variety of conditions and requirements, depending on the case and the unique needs of the child and family. Some of the more common conditions of probation are discussed here.

Jan 23
Love1
Texas Improper Photography Unconstitutional

Probation Revoked for Violating an Unconstitutional Law…CCA Overturns

By Probation Revocation

Punishment for a Man Convicted of Child Pornography Held Facially Unconstitutional

Ex Parte Lea (Tex. Crim.App. 2016)

Texas Improper Photography UnconstitutionalWhat happens when an old criminal law is rendered null and void? Do people convicted of such crimes get to walk free, or, are the convictions upheld in the interests of justice? The Texas Court of Criminal Appeals (“CCA”) filed an ex parte case (the court filed the case on its own volition) to determine whether David Lea’s punishment for his 2008 child pornography conviction should be set aside on constitutional grounds. The case was met with a dissent by Judge Yeary and the CCA reached a very interesting conclusion.

In 2008, David Lea pled guilty to three counts of possession of child pornography. As a result, he was sentenced to twelve years’ imprisonment, ten of which were probated by way of community supervision. In 2012, Lea pled guilty to one count of improper visual photography and received a state-jail felony sentence of two years confinement. During sentencing, the State filed a motion to revoke Lea’s community supervision from the 2008 conviction because, the State argued, Lea violated the terms of his supervision by committing a new criminal offense. Accordingly, the court revoked Lea’ s probation and Lea was sentenced to six years imprisonment.

The Offense of “Improper Photography” Held Unconstitutional

In 2014, the CCA held that the offense of improper photography was “facially unconstitutional” because it infringed upon individuals’ First Amendment rights, as propounded by the Constitution of the United States. The main issue? The improper photography statute, once found in Section 21.15(b)(1) of the Texas Penal Code was overbroad. Ex Parte Thompson, 442 S.W.3d 325 (Tex. Crim. App. 2014).

Lea Files Writ to Overturn His Conviction for the Stricken Law

Lea filed a Writ of Habeas Corpus, arguing that because the offense of improper photography was found unconstitutional, (1) his sentence for improper visual photography should be vacated and (2) his original probation via community supervision should be reinstated.

When an old law is found to be unconstitutional on its face, it is considered to be “void from its inception and should be treated as if it never existed.” Smith v. State, 463 S.W. 3d 890, 895. The due process right to not be convicted under a statute that has been declared void cannot be forfeited. Ex Parte Fournier, 473 S.W.3d 789, 796 (Tex. Crim. App. 2015).

CCA Overturns Lea’s Prior Conviction and Revocation

When Lea was originally sentenced in 2008, the CCA had not yet determined the fate of the improper photography statute. And while it’s true that courts may revoke community supervision based upon a violation of community supervision conditions—committing any future crimes in this case—the Court finds that Lea’s conviction must be set aside. “The harm here flows from his void conviction, namely, the revocation of his community supervision based solely on an offense that [in theory] never existed.”

Accordingly, the CCA set aside the revocation of Lea’s community supervision, and remanded the case to the trial court to determine reinstatement of his probation. It is important to note that Justice Yeary dissented in this case, referring to Fournier, “I do not believe the applicant should be able to obtain retroactive post-conviction collateral relief based upon an overbroad statute unless he can show that the statute was unconstitutional as to his own conduct. 473 S.W. 3d 789, 805 (Tex. Crim. App. 2015). Yeary believes that post-conviction relief should only be granted to those defendant-applicants who can show that the conduct in question did not fall within the “plainly legitimate sweep of the overbroad statute.”

May 12
Love2
Texas Felony Habitual Offender True

A “True” Pleading to Felony Priors Lifts State’s Evidentiary Burden

By Probation Revocation

Texas Felony Habitual Offender TrueWhat happens when the State omits the year of an offense on a legal document presented before the court for a sentencing enhancement? Well, nothing, so long as the defendant pleads “true” to the priors and the enhancement itself is not improper, according to the latest holding from the Court of Criminal Appeals. The CCA revisits Roberson v. State to explain why it comes to this quirky conclusion.

See the CCA opinion in Hopkins v. State (Tex. Crim. App. 2016).

Defendant Pleads “True” to a Notice Pleading with Incomplete Information

Essie Hopkins was convicted for aggravated robbery for shooting his victim as he ran away with her wallet. During the punishment phase, the State pushed for an enhancement to his sentencing for more prison time under Texas’s habitual offender statute. In the original indictment, the State alleged that the defendant had a prior conviction for aggravated assault with a deadly weapon from 2003. Later, the State alleged in a notice pleading that the defendant had a second aggravated assault conviction, however, the State failed to include the year of the offense in the paperwork. When the State read the enhancement allegations into court record, Hopkins pled “true” to committing and being charged with the prior felonies. Hopkins’ mother also testified, citing knowledge of the two prior felony convictions—one occurring in 2003 and the other in 2009. The State did not provide evidence of the prior aggravated assaults.

On appeal, the Fifth Court of Appeals affirmed the lower court’s conviction, holding, “that [Hopkins’] plea of “true” to both enhancements was sufficient evidence to support a finding on those allegations.” Hopkins v. State, No. 05-14-00146-CR, 015 WL 3413582, *6 (Tex. App.—Dallas May 28, 2015, pet. granted) (mem. op.) (not published). Hopkins appealed to the Criminal Court of Appeals, arguing that because the wording in the notice pleading is not clear, the State was required to present evidence of the felony even though Hopkins pled “true.”

Texas Penal Code Sentencing Enhancement Laws

Under section 12.42(d) of the Texas Penal Code, a defendant’s punishment may be enhanced if “it is shown on the trial [record]…that the defendant has previously been…convicted of two felony offenses…the defendant shall be punished by imprisonment…for any term not more than 99 years or less than 25 years. TEX. PENAL CODE § 12.42(d); Jordan v. State, 256 S.W. 3d 286, 290-291 (Tex. Crim. App. 2008).

If the defendant pleads “true” to an enhancement paragraph, then the State is off the hook to prove up in court the enhancement allegations. Roberson v. State, 420 S.W.3d 832, 838 (Tex. Crim. App. 2013) (citing Mikel v. State, 167 S.W. 3d 556, 559 (Tex. App.—Houston [14th Dist.] 2005, no pet.))

The Court of Criminal Appeals Looks to Roberson v. State

In Roberson, the defendant was convicted of aggravated assault with a deadly weapon and was sentenced to 30 years in prison based on a “true” pleading to prior felony convictions. Id. Because the court record of that case did not affirmatively reflect that the enhancement was improper, the court held that the defendant’s “true” pleading relieved the State’s burden of proving up the felony convictions. Id. at 840. In Roberson, the court record also supported the enhancement allegations. Id.

The CCA stated, “[Hopkins] fail[s] to direct us to any record evidence affirmatively showing that the enhancements were improper, the record actually supports the enhancement allegations.” In sum, if a defendant pleads “true” to a sentencing enhancement during the punishment phase at trial, then the State is absolutely relieved of the evidentiary burden to prove the defendant actually committed and was convicted of the priors, so long as the enhancement itself is not improper.

Jun 27
Love1

No More Bites of the Apple: Probation Revocation and Res Judicata

By Double Jeopardy

A community supervision (probation) revocation hearing is distinct from a criminal trial, but are its issues and procedures similar enough to a criminal trial to bind parties in future criminal trials?

That was the question presented the Texas Court of Criminal Appeals in Ex Parte Doan.  Doan was serving community supervision in Brazos County when he was alleged to have committed theft in Travis County.  The Brazos County DA moved to revoke Doan’s community supervision but was unable to obtain sufficient proof.  As a result, the court denied the motion to revoke.  When the Travis County DA later charged Doan with misdemeanor theft, Doan filed a pretrial application for writ of habeas corpus “seeking to bar any further prosecution of the theft offense under the doctrine of issue preclusion.”

The issue in this case is whether the doctrine of res judicata applies to bar a prosecution for a criminal offense in one county after a prosecutor in another county unsuccessfully attempted to revoke the defendant’s community supervision on the ground that he committed the same offense.

In a 6-3 opinion authored by Judge Womack, the CCA noted that probation revocation hearings were often tagged as “administrative” in nature, but wrongly so.

In this case…the issues and procedures were nearly identical in the Travis County (criminal) and Brazos County (revocation) proceedings. In both proceedings, prosecutors plead and sought to prove that the appellant committed the same act. Both were criminal, judicial proceedings with nearly identical procedural rules, in which the State was represented by sworn prosecutors. The Brazos County Attorney had the authority to litigate the matter to a final adjudication. The only difference between the interests of the Brazos County Attorney and the Travis County Attorney in this case is that one sought to prove theft in order to criminally punish the appellant for theft, while the other sought to prove theft in order have the appellant’s criminal punishment from a prior case altered to his detriment.

Judge Womack held that while the difference in procedures is enough to narrowly escape the “grasp of the Double Jeopardy clause,” it is not enough to avoid the application res judicata to the later criminal trial. The CCA reversed the lower court (which previously held that the two prosecuting authorities were not the same party for res judicata purposes).