Articles Posted in pleas

It’s a common scene: a defense attorney sitting with a pile of paperwork balanced on his lap, his client next to him. The attorney takes each page in turn and reviews it with the client: the judgment, the stipulation of evidence, the waiver of the client’s constitutional right to have a full trial.

This is the plea process, the way the majority of criminal cases end – with the defense attorney making sure his or her client truly understands what he is pleading to and understands what it all means.

Often the most time-consuming and complicated part of the plea paperwork is explaining the terms of a client’s probation. It seems simple enough at first glance – just a list of things you have to do, and a list of things you can’t do. Pay some fees. Go see your probation officer. Don’t use controlled substances. What’s the big deal?

For accused persons facing prosecution for certain low-level felony offenses, Texas Penal Code Section 12.44 is like the Holy Grail of plea deals. Clients continuously ask “what is a 12.44(a)” . . . “can I get a 12.44(a)” . . . and “how does 12.44(a) work?” They ask the same questions about Section 12.44(b).

So here’s the basics (and as always, if you have a particular legal question about YOUR CASE, talk to your lawyer . . . this post is for general info and should not be considered legal advice):

Section 12.44 of the Penal Code allows the trial court to either send you to your local county jail to serve time on a State Jail Felony Conviction (that’s Section 12.44(a)), or, with permission from the prosecutor, reduce your State Jail felony case to a misdemeanor conviction and have you serve your time in a county jail facility (that’s Section 12.44(b)).

Once upon a time in a not-so-distant past a prosecutor named Ken Anderson decided that he wanted to send a man named Michael Morton to prison for killing his (Mr. Morton’s) wife. The only problem was that Mr. Morton didn’t actually commit the murder.

But Mr. Anderson couldn’t be troubled with such stubborn facts, so he deliberately withheld exculpatory evidence during the trial. Mr. Morton was found guilty and served 25 years in prison. The withheld evidence included a blood-soaked bandana found at the crime scene that belonged to Mark Allan Norwood, the man ultimately convicted of the murder of Mr. Morton’s wife and another woman.

This awful series of events eventually led to the disbarment of Mr. Anderson (who had subsequently been elected to a district court bench), a finding of contempt (with a sentence of just ten days in jail, which seems a bit soft-handed in light of the 25 years served by Mr. Morton), and an agreed audit of every Williamson County case handled by Mr. Anderson (read about that little-know fact here).

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