Probation For A Drug Possession Case Despite A Prior Felony Conviction
I had a unique issue today in the Harris County State Jail Court. I will try to be concise and keep this blog from being too legal. My client was charged with the state jail felony of cocaine possession . Additonally, he had two prior 12.44(a) convictions. A 12.44(a) conviction is a felony conviction, but where the person serves their time in the county jail. Typically, the range of punishment for a state jail felony cocaine case is from 180 days to 2 years in the state jail. However, when someone like my client has previously been convicted of two state jail felony cases their punishment is "enhanced" to the third degree level of 2 to 10 years in prison. Texas law provides that someone that is charged with a state jail possession of a controlled substance must receive probation if they have never been convicted of a felony. What is quirky is that this is also the law even though they have been convicted of a 12.44(a). The law is unclear what to do in my client's situation because he is being punished under the "enhancement" statute not the regular state jail punishment. Of course, my position was that he was entitled to the mandatory probation because his arrest is under the regular cocaine possession section. The Judge was undecided how he would rule and more surprised that this issue had not been previously litigated. Surprisingly, my client did not want to push for the probation, but wanted county time again, but the prosecutor was not going for that again. I had to get creative so I turned my attention to the 12.44(a) law where it states that a Judge or prosecutor may agree to punish someone with county jail time in the interest of justice among other factors. Most importantly, this section only addresses someone that is charged with a state jail felony not someone that is being charged with a state jail felony and is being enhanced. Despite the fact that the prosecutor would not agree with my position the judge agreed to sentence my client in the county jail despite his prior convictions.