09-06-07 proving up probation

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PROVING UP PROBATION ELIGIBILITY

Art. 42.12(4)(A)(e), Texas Code of Criminal Procedure, provides that: A

defendant is eligible for community supervision under this section only 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 this

or any other state, and the jury enters in the verdict a finding that the

information in the defendants motion is true.

Under this article, a criminal defendant has a two-fold burden. First, he must

file a sworn motion, and, second, he must prove that he has never been

convicted of a felony. The sworn motion and proof are separate, independent

requirements. The mere filing of a sworn motion stating that the defendant

does not have a prior felony conviction is an insufficient showing that thedefendant is eligible for community supervision from a jury. See, Palasota v.

State, 460 S.W.2d 137, 140-41 (Tex.Crim.App. 1970). See also: Beyince v.

State, 954 S.W.2d 878 (Tex.App.-Houston [14th Dist.] 1997pet. refd).

It was not until 2004 that an appeals court decided the degree of a

defendants burden of proof. In Ward v. State, 143 S.W.3d 271 (Tex.App.-

Waco 2004) the appeals court held that a jurys refusal to find the defendant

had no prior felony conviction is subject to a factual sufficiency review

because it involves a jury determination of an issue of historical fact. Id., at274. The appeals court noted that Texas courts have traditionally conducted

factual sufficiency reviews in cases where the jury has to determine a

historical fact, even one made in the punishment phase. Id. See also: Wardip

v. State, 56 S.W.3d 588, 590-91 (Tex.Crim.App. 2001).

Before making a factual sufficiency review, the Ward court dealt with the

preliminary issue of whether a defendant has to prove that he has never been

convicted of a felony by a preponderance of the evidence, by substantial

evidence, or by some other quantum of evidence Id. Turning to

preponderance of the evidence standard applicable to an affirmativedefense, the court said this standard should also apply under Art. 42.12(4)(a)

(e). Quoting Zullani v. State, 97 S.W.3d 589, 594 (Tex.Crim.App. 2003), the

Ward court then concluded that an appeals court must determine that a jurys

refusal to find a defendant did not have a prior felony conviction is so

against the great weight and preponderance of the evidence as to be clearly

wrong in order to require reversal. Id., at 275.


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6. The names and locations of any witnesses that might testify

regarding evidence of defendant's intent to kill, attempt to kill, or

contemplation that life would be taken relative to the instant offense.

7. The names and locations of any witnesses that the State intends to

call to testify about defendant's propensity for violence or that he

poses a continuing threat to society.

8. Any statements, whether oral or written made by or attributed to

defendant, and which the State intends to offer which reflect a desire

or ability to kill another person.

9.Any evidence, whether written or oral, relating to the following:

a. Any efforts or lack of effort of defendant at self-

rehabilitation;

b. Expressions of remorse or lack of remorse by defendant as

related to the instant offense.

10, Defendant alleges that the requested information is within thepossession or control of the State of Texas or its agents. Other than

discovery by these means, defendant has no other means by which to

obtain the information requested, which is necessary for the proper

preparation of the defense of this cause in the punishment hearing.

This information is discoverable under Smith v. State, 721 S.W.2d 844, 851

(Tex. Crim. App. 1986); Reed v. State, 644 S.W.2d 494, 497-99 (Tex.

App.--Corpus Christi 1982, pet. ref'd).

In addition, a defense attorney may want to explore the possibility of

requesting a subpoena duces tecum, or business record affidavit, against the

Custodian of Records for the Texas Department of Public Safety, Crime

Records Service for any criminal history data reported to the DPS and to the

Custodian of Records for and Texas Department of Criminal Justice under

for any information in the corrections tracking system relating to any

sentence served by the defendant. No criminal history information in the

DPS and TDCJ tracking systems would be relevant on the no prior

conviction issue.

Finally, criminal background searches can be conducted online through the

legal research services offered by LEXIS-NEXiS and Westlaw, and through

commercial online sites, such at Net.Detective, that conduct criminal

background checks.


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In the final analysis, a defense attorney would best be served to file his Art.

42.12 sworn motion, secure through the discovery any information in the

District Attorneys files concerning the defendants criminal history and

prepare witnesses who can testify categorically that the defendant has not

been convicted of a felony in Texas or any other state.

THE ISSUE

Does a criminal defendant have a right to access to his own criminal history?

ANALYSIS

V.T.C.A., Government Code 411.083(a) provides that the Texas

Department of Public Safety is the repository for criminal history

information.

Subsection (b)(3) provides that the department shall grant access to criminal

history information to the person who is the subject of the criminal history

record information. See, State v. Blesi, Not Reported in S.W.3d, 2000 WL

1782545 (Tex.App.-Dallas).

In Landers v. State, 239 S.W.3d 532 (Tex.App.-Texarkana 2007) held by

implication that an individuals criminal history is a matter of public record

in the State of Texas.

The Texas Department of Public Safety makes records of adult convictions

and deferred adjudications available to the public on its web site. See: 43B

Tex. Prac., Criminal Practice And Procedure 48.08 (2d ed.). See also:

http://records.txdps.state.tx.us/

Under 411.083 the Texas Department of Public Safety makes its criminal

history information available to local District Attorneys.

Vernon's Ann.Texas C.C.P. Art. 60.01 provides the definitions in the states

criminal records system:

(1) "Administration of criminal justice" means the performance of any of

the following activities: detection, apprehension, detention, pretrial release,

post-trial release, prosecution, adjudication, correctional supervision, or

rehabilitation of an offender. The term includes criminal identification


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activities and the collection, storage, and dissemination of criminal history

record information.

(2) "Appeal" means the review of a decision of a lower court by a superior

court other than by collateral attack.

(3) "Computerized criminal history system" means the data base

containing arrest, disposition, and other criminal history maintained by

the Department of Public Safety.

(4) "Corrections tracking system" means the data base maintained by the

Texas Department of Criminal Justice on all offenders under its supervision.

(5) "Council" means the Criminal Justice Policy Council.

(6) "Criminal justice agency" means a federal or state agency that is engaged

in the administration of criminal justice under a statute or executive order

and allocates a substantial part of its annual budget to the administration of

criminal justice.

(7) "Criminal justice information system" means the computerized criminalhistory system and the corrections tracking system.

(8) "Disposition" means an action that results in the termination, transfer to

another jurisdiction, or indeterminate suspension of the prosecution of a

criminal charge.

(9) "Incident number" means a unique number assigned to a specific person

during a specific arrest.

(10) "Offender" means any person who is assigned an incident number.

(11) "Offense code" means a numeric code for each offense category.

(12) "Rejected case" means:

(A) a charge that, after the arrest of the offender, the prosecutor declines to

include in an information or present to a grand jury; or

(B) an information or indictment that, after the arrest of the offender, the

prosecutor refuses to prosecute.

(13) "Release" means the termination of jurisdiction over an individual by

the criminal justice system.

(14) "State identification number" means a unique number assigned by

the Department of Public Safety to each person whose name appears in

the criminal justice information system.

(15) "Uniform incident fingerprint card" means a multiple part formcontaining a unique incident number with space for information relating to

the charge or charges for which a person is being arrested, the person's

fingerprints, and other information relevant to the arrest.

(16) "Electronic means" means the transmission of data between word

processors, data processors, or similar automated information equipment

transmission.


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With respect to proving up a defendants probation eligibility under Art.

42.12(4)(a)(e) of the Texas Code of Criminal Procedure, a criminal

defendants criminal history is public record. It can be accessed through the

official website of the Texas Department of Public Safety.

Second, the District Attorneys Office must request, and will receive, fromthe Texas Department of Public Safety the criminal history of each

defendant it prosecutes for a criminal offense. This criminal history

information is not only subject to public records disclosure but is

discoverable under the Brady doctrine.

A defendant does not have to take the witness stand at the punishment phase

in her/her trial to either verify the sworn motion or to offer proof of a non-

criminal history. The State, through its prosecutorial and law enforcement

agencies, have ample public record/discoverable information about a

defendants criminal history.

09-06-07 proving up probation

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