Sexual Abuse Charges – Blog 9: Registration, Deferred Adjudication, and Probation

November 30, 2020

By Collin County Criminal Defense Lawyer Jeremy Rosenthal

www.texasdefensefirm.com

(972) 369-0577

Being convicted of a sex crime is unenviable to be sure.  One of the reasons we fight so hard on sex charges and crimes is because the down side is so catastrophic.

I’m continuing my series on sexual abuse cases – today discussing the technical and legal aspects of what happens if you or a loved one have either been found guilty, been placed on deferred adjudication or have been released from prison.

Sex Offender Registration

Registration is controlled by Tex.Code.Crim.P. Chapter 62.  It requires a sex offender to register with local authorities on a regular basis.  Many cities have also passed ordinances requiring sex offenders to live a certain minimum distance from schools or playgrounds which is an intentional method of excluding sex offenders from living in their communities altogether.

Registration is filled with tripwires and is enforced often by bored police or nosey neighbors.  Even homeless people must comply.  Failure to register as a sex offender in itself is a 3rd degree felony (2-10 years).

It goes without saying registration is very stigmatizing.  The stigma hurts not only the sex offender but punishes their family, too for being loyal.  Families suffer the choice between abandoning their loved one or themselves suffering retaliation in housing and at work.  Sex offenders are at heightened risk for suicide.

 

Deferred Adjudication

Deferred adjudication is a form of probation whereby a person pleads guilty but is not found guilty.  The person is placed on probation for a specific amount of time.  If they complete the probation the case against them is “dismissed.”  Dismissed under Texas law for deferred doesn’t really mean what we all think – it just means the case is over.

Deferred in a sex case sounds great – but is really often a trap door.  Name all 50 states in ten seconds.  Name every President of the United States in 30 seconds.  Sex offender probation isn’t quite that hard – but it can be extremely onerous and taxing.

The downside is if a person’s deferred is revoked – they are subject to the entire punishment range for the original offense.  So, for a first degree felony (5-99 years or life) – the person could actually get a life sentence if they unsuccessfully attempt deferred adjudication.

Additionally deferred in every case also triggers sex offender registration.

Deferred is also a mechanism prosecutors use if they have weak cases to bait folks into pleading.  If the person accepts the deferred and then has a hard time – the person can no longer argue they were innocent to a jury.  The only issue before the court is whether the person violated deferred.

There are benefits to deferred.  It isn’t prison and when the case is over the person can deny having been “convicted” although they cannot deny having been arrested, charged, or pleading guilty.  If they are charged again with a sexual abuse charge – the deferred counts as a conviction.

Completing deferred on a sexual abuse charge does not entitle the person to have their case sealed, expunged, or otherwise hidden from the public in any way.

Sexual abuse charges where a person is eligible for deferred (depending on their criminal history) are:

  • Aggravated sexual assault of a child;
  • Sexual assault of a child;
  • Indecency by contact;
  • Indecency by exposure.

Sex Offender Probation

The main difference between sex offender probation and deferred adjudication is the person is convicted prior to being placed on probation.  This has importance beyond being able to claim a person was never convicted of an offense.  The conviction actually caps the defendant’s legal exposure to prison.

In other words if the defendant violates probation and is sent to prison – it would legally be capped at the underlying sentence.  A person cannot be placed on probation for more than a 10-year sentence in any case.  Thus, being “convicted” of a sex offense in some ways is actually better than being placed on deferred for a sex offense.

The requirements of sex offender probation are equally as daunting and difficult as if someone is on deferred.

*Jeremy Rosenthal is certified in criminal law by the Texas Board of Legal Specialization.  He is designated as a Texas Super Lawyer by Thomson Reuters.

 

 

 

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Posted by niftybrady

Will My Probation Get Revoked?

October 20, 2020

By Criminal Defense Lawyer Jeremy Rosenthal

www.texasdefensefirm.com

(972) 369-0577

Legally you could be revoked for showing up late to probation – but that’s obviously an extreme and unlikely scenario.  There are countless variables which go into whether or not your probations revoked – so each case is truly unique.

Those variables can be things like the nature of the underlying offense?  How severe is the new infraction?  Have there been other infractions?  Is the probation officer understanding about your situation?  Are they lazy?  Are they a jerk?  Passive?  Controlling?  What does your county typically do with similar cases and infractions?  The list goes on and on and on.

I get plenty of calls asking me this exact question… will I be revoked?  I understand the anxiety and uncertainty of the position the probationer is in and I really do my best to try and handicap each situation.  But each situation is very different.  Here are some general guideposts, though:

Is the Probation Violation a New Offense or Crime?

If you’ve been arrested again for a new charge your probation officer probably doesn’t have much say in whether or not a motion to revoke or motion to adjudicate is filed.  Those are likely to be dictated by office policy and your PO’s hands are usually tied.

If you do get arrested for something new – and you don’t get revoked – count yourself lucky.

Every probation plan or order I’ve ever seen requires a person to notify their officer upon a new arrest.  So it’s normally a separate probation violation not to disclose it.

“Technical” Violations of Probation

We typically refer to issues such as failure to do community service or take classes as “technical” violations.  Whether your probation is revoked based on a “technical” violation is up to your probation officer.  Failure to pay fines and money fits into a bit of a different legal category – so I’m not including that here.

It really is impossible to quantify what each individual probation officer would do in any county in Texas in any given scenario.  If you’re on probation for drugs or DWI and you’ve done 90 out of 100 hours of community service – I like your odds of not being revoked more than if you’re on probation for a violent crime and have done 0 out of 100 hours of community service.

I also like your odds of not being revoked on a “technical” violation more if you’ve never been in trouble with your PO before than if your PO has already given you 5 warnings about the same thing.

Positive Drug Tests

This is a very common trigger for a revocation or adjudication.  My experience is it takes more than one – but this is an area where each county is different.  The main reason a single positive UA probably won’t get you revoked is your PO has a lot of options at their disposal to remedy or punish short of full-blown revocation.  It could include a jail sanction, additional classes, or even them asking you to extend your probation.

But Here’s What Experience Teaches Me — At Least in Collin County

It never hurts to be on your probation officer’s “nice” list and not “naughty” list.

Being a probation officer is a very tough job as much as I might criticize them.  Most are over-worked and under paid.  They are like you and I.  I’m guessing it’s easy for them to deal with most people on their case load — and then they have some they deal with regularly who aren’t very pleasant to work with at all.

I don’t think many probation officers show up to work looking to screw people.  The fact is they have enough headaches on their case load without inventing more.

*Jeremy Rosenthal is Board Certified in Criminal Law by the Texas Board of Legal Specialization.  He is a Texas Super Lawyer as designated by Thomson Reuters.

 

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Posted by niftybrady

Collin County Pre-Trial Diversion Update (June, 2012)

June 22, 2012

By Collin County Criminal Defense Lawyer Jeremy Rosenthal

(972) 369-0577

texasdefensefirm.com

It’s been a while since I’ve written about the Collin County Pre-Trial Diversion program.

As a refresher, the pre-trial diversion program is a less formal probation offered under Tex.Code.Crim.P. 42.12.  In Collin County, a first-time offender may be offered the opportunity to enter the pre-trial diversion program which would result in the underlying charges to be dismissed and eventually expunged.

The Collin County District Attorney’s Office has made this alternative more available in the past few years for certain categories of cases.  Most qualifying cases tend to be misdemeanor theft and drug cases though those charges are not exclusively considered.  While the diversion program is available for felonies, selection of felony cases for diversion has been extremely selective. Diversion is not offered for DWI or DUI charges.

The program has endured some growing pains but remains an excellent avenue towards clearing one’s record.  The current process is that a defendant’s attorney must first apply and be approved by the District Attorney’s Office.  After receiving approval from the DA’s office, a candidate is sent paper-work to be reviewed with their attorney.  The candidate is then required to personally make an appointment with the probation officer who conducts a final interview and decides if the candidate is admitted into the pre-trial diversion program.

Generally speaking a candidate is usually accepted into the program at the interview — but not always (a point they make repeatedly).  The interviewer, however, can reject the application.  The criterion for such rejection can be rather vague but probably hinges on the needs of the person entering the program in relation to the current load of the program.

The program isn’t perfect, but from a practitioner’s standpoint seems to have a high success rate for those who are accepted and remains a useful option.

*Jeremy Rosenthal is Board Certified in Criminal Law by the Texas Board of Legal Specialization and licensed by the Supreme Court of Texas. Nothing in this article is intended to be legal advice.  For legal advice about any situation you should contact an attorney directly.

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Posted by Jeremy Rosenthal, Esq.

How Do I Plead Guilty to a Criminal Charge?

June 8, 2010

By Collin County Criminal Defense Lawyer Jeremy Rosenthal

(972) 369-0577

texasdefensefirm.com

I hate advising clients to plead guilty.

Hate it!

Some tough-guy lawyers will never admit to advising clients to plead guilty but every criminal defense lawyer I know will admit to not only advising clients to accept a deal but begging or pleading with a client on occasion.  Often the facts are stacked against you or the down-side of taking a case to trial is just too scary for the client.

There is no real difference between a guilty plea and a no-contest plea in Texas, so I’m referring to both in this blawg.

A guilty plea is like a contract in Texas.  Both you and the prosecution sacrifice and gain something by way of agreement (you usually sacrifice a lot more).  You are waiving your rights to trial and all that comes with it… the right to prepare, the right to call witnesses, the right to cross examine… etc.  The State is waiving their “right” to seek a greater punishment and, they would argue, their “right” to a jury trial.  In return, you are getting a specific punishment (which may be deferred adjudication depending on your plea deal) and more importantly — you’re also eliminating variables of what may happen to you at trial.  The State benefits because they get a verdict without a trial.

The plea is subject to approval by the judge.  When you plead guilty, you legally empower the judge to (a) find you guilty and (b) sentence you anywhere within the punishment range.

A Texas judge can do one of three things with a plea.  He can accept it (the vast majority of pleas are accepted — I don’t have stats but I’d be willing to bet it’s 99.5% or even greater).  He can reject the plea, or he can accept the plea and modify terms an conditions of probation assuming the plea includes probation.

If the judge flat-out rejects the plea, then he must inform the defendant he’s rejecting the plea so the defendant can withdraw his plea an assert his right to a trial.  A judge rarely knows any specific fact of your case other than what you are charged with — like a DWI, marijuana case, drug possession with intent to distribute, and so on… and for this reason, the Judge is unlikely to tinker with a deal a lawyer and prosector have worked hard to make happen.

Whether to plead guilty or not guilty is a case-by-case analysis.  I advise clients to fight on certain cases for all sorts of reasons and I advise clients to plead guilty on occasion too — because that may be the best answer or because we’re getting a really good deal under the circumstances.

Your choice to plead guilty or not guilty is an extremely important one.  Don’t make the decision alone — have a licensed attorney experienced in the area of criminal law assist you.

*Jeremy Rosenthal is Board Certified in Criminal Law by the Texas Board of Legal Specialization and licensed by the Supreme Court of Texas. Nothing in this article is intended to be legal advice.  For legal advice about your specific situation you should consult an attorney.  This article does not create an attorney-client relationship.

 

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Posted by Jeremy Rosenthal, Esq.

Charges Where You Can’t Get Deferred Adjudication in Texas

April 12, 2010

By Collin County Criminal Defense Lawyer Jeremy Rosenthal

texasdefensefirm.com

(972) 369-0577

Deferred adjudication is where you plead guilty but the judge does not actually find you guilty.  Instead they defer that finding while you are placed on probation.

Deferred adjudication is available on many criminal charges in Texas but not all.  Most people are familiar with deferred for traffic tickets but the truth is the concept is far more expansive.

Virtually every offense in Texas is legally subject to deferred with the exception to DWI offenses, (Tex.Pen.C. 49.04 – 49.08), capital offenses, certain sex offenses, and certain repeat offenses (typically sex offenses or selling drugs in drug free zones).  Texas Code of Criminal Procedure section 42.12 Section 5 governs deferred and it’s availability.

As with which cases a person may receive community supervision, in certain situations for deferred, the statutory scheme gets tricky and you should consult an attorney if you have any questions.

I have discussed in previous blawgs the other pros and cons of deferred here, and here.  Never assume that by pleading guilty (or nolo contendere) and getting deferred that your criminal record will be unharmed or will undo itself.

*Jeremy Rosenthal is Board Certified in Criminal Law by the Texas Board of Legal Specialization and licensed by the Supreme Court of Texas. Nothing in this article should be considered leal advice.  For legal advise specific to your situation you should directly consult an attorney.

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