ARE YOU ELIGIBLE FOR PROBATION IF YOU GO TO TRIAL AND ARE FOUND GUILTY?
Before answering this question, it is important to remember that there are two types of probation in Texas State Courts as discussed in the above section. There is deferred probation and there is regular probation. Deferred probation is a non conviction type of probation and is not available if a defendant goes to trial and is convicted. Regular probation is a probation in which a defendant is found guilty and sentenced to a term in prison of 10 years or less and is then that prison sentence is probated by the judge or the jury. Whether or not the judge or the jury can give probation is a very important question that you need to know if you are thinking about going to trial and have never been convicted of a felony before. As mentioned above there are some cases in which only a judge can give probation and some cases in which only a jury can give probation. You need to know how your case fits into this scenario.
There are also very limited situations in which a defense attorney, a prosecutor and a judge can all agree to do a “no contest TBC”. As a defendant, you do not have a right to this type of trial. It is simply subject to the agreement of all of the parties. In this situation, a defendant is allowed to plead “no contest” and then have the prosecutor present its witnesses in court.This is done with a judge and not a jury. At the conclusion of the state’s case the judge can then make a ruling that the defendant is not guilty or that there is sufficient evidence to find the defendant guilty for the offense but then defer further proceedings and put the defendant on deferred adjudication probation. This is typically only done in cases where a judge cannot give a defendant probation once he has been convicted of an offense but can give deferred if there has been no actual “conviction”.
All persons convicted of a misdemeanor offense are eligible for probation if they elect to have a judge assess their punishment. Persons convicted of a misdemeanor offense are eligible for probation from a jury 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 Texas or any other state, and the jury enters in the verdict a finding that the information in the defendant’s motion is true.
Under the current law, if you are convicted of a felony and are sentenced by a judge, you are eligible for probation provided that your sentence is ten years or less and you are not convicted of: (1) capital murder; (2) murder; (3) aggravated kidnapping; (4) aggravated sexual assault; (5) aggravated robbery; (6) indecency with a child; (7) sexual assault of a child; (8) a second drug offense in a drug-free zone; or (8) a felony where a deadly weapon was used or exhibited.
Under the current law, if you are convicted of a felony (except a state jail felony, a second drug offense in a drug-free zone, murder and certain sexual offenses involving children) and sentenced by a jury, you are eligible for probation if the jury sentences you to ten years or less and the jury finds that you have never previously been convicted of a felony.
The maximum period of probation for Class A and Class B misdemeanors is two years and for first, 2nd and 3rd degree felonies is ten years. For State Jail felonies the maximum term of probation is 5 years. Once on probation, your probation can be extended to up to double the original length of probation if you do not fully comply with the terms and conditions of probation.