The Campaign For DA

2.01.2018

Dear Judge: You Can't Do That


This is the case that received publicity after a Fort Worth Police Officer responded to a complaint that the Defendant had grabbed the complainant's son around the neck. The police officer was suspended for his conduct, and the Defendant was ultimately charged with a Class C misdemeanor for touching the kid.

The jury found him guilty of "Offensive Touching" and then it came time for the judge to assess punishment.  The judge offered him an option (1) Pay $269 in court costs and a fine, and be found guilty, or (2) agree to pay $569 in court costs* and a fine, do 100 hours of community service — and receive six months’ deferred-disposition probation (meaning no conviction). Problem: The judge had no authority to do the latter.

Here are the rules:
(1) A prosecutor can offer deferred as a plea bargain before trial.
(2) If there is a trial before the court (meaning there is no jury), the judge can make a finding that "the evidence substantiates the defendant's guilt" and place him on deferred. He has that right.
(3) But if there is a jury trial, as was the case here, the only thing the judge can do after a guilty verdict is set the fine.   He can't do what he did: Ignore the guilty verdict and place the defendant on deferred thereby wiping out the conviction the jury just decided upon.

The only way the judge could do what he did would be to grant a Motion for New Trial, have the next trial before him, and then give the defendant deferred. 

A lot of strange things go on in municipal and JP courts in Texas when folks don't know the rules.
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*That disparity in court costs between a conviction and deferred seems out of whack. Court costs are set by statute and aren't subject to manipulation. Normally, at least in every case I've ever handled, court costs for deferred are lower that court costs associated with a conviction.