Sexual aSSault LEGAL ADVOCACY MANUAL - Texas Association ...

Under community supervision, the defendant avoids time in jail or prison—or spends less time
confined—and adheres to a set of rules the judge imposes. For example, the jury might sentence a
defendant to 5 years in prison but recommend a 10-year community supervision instead. During that
ten years, the defendant might have to pass drug tests, hold a steady job, and/or do community service.
In every case the defendant will have to avoid committing another offense. If the defendant violates any
of the conditions of the supervision, the prosecutor can request that the court put the defendant in jail
pending a hearing on whether the defendant’s probation should be revoked. If revoked, the defendant can
only be sentenced to a prison term less than or equal to the one originally part of the sentence, which may
be less than the original duration of the supervision (5 years in the example above).
The court can usually make community supervision last for between five and ten years, depending upon
the offense charged, with a possible extension up to 20 years’ duration for some sex crimes. Typically, the
judge or jury will impose a sentence less than the maximum, as in the example above, and recommend a
longer supervision period.
ADVOCACY ACTION: If the survivor would feel unsafe with the perpetrator on
community supervision, the advocate should talk with her or him about the possibility
at the beginning of the prosecution, when the survivor has the chance to submit a Victim
Impact Statement. The VIS is the survivor’s opportunity to tell the jury or judge about the
victimization, including any continuing safety concerns. The survivor also has a separate right
under Tex. Code Crim. Proc. Art. 56.02(a)(5) to provide information about the impact of the
crime the probation department as part of its Pre-Sentence Investigation (“PSI”). If the survivor
wishes to speak with the probation department—especially if the survivor did not submit a
Victim Impact Statement—the advocate should immediately put the survivor in touch with
the Victim Assistance Coordinator in the prosecutor’s office. (p. 53, VIS)
Deferred Adjudication
Texas also has a second type of probation, called “deferred adjudication.” Deferred adjudication allows
the defendant to avoid being officially convicted of the offense. First, the defendant admits guilt, and the
judge determines whether sufficient evidence exists for a guilty finding. If so, the judge sets out conditions
for the defendant to adhere to, just like a community supervision plan. Deferred adjudication is different,
because if the defendant successfully completes the supervision, the original charge is dismissed without
an official conviction. However, unlike regular or “straight” probation described earlier, if the defendant
violates the terms of a deferred adjudication supervision, the judge can find the defendant guilty and
sentence him or her to the maximum punishment for that crime.
The admission of guilt alone can have negative consequences for the defendant (e.g., gun possession,
professional licensing, immigration), and it is actually considered a conviction under federal law. However,
despite any negative collateral consequences, deferred adjudication is usually a much better deal for
defendants than regular community supervision.
Courts typically reserve deferred adjudication for first-time offenders, and the judge must find it to be in
the best interests of society and the defendant. Only the judge can order deferred adjudication (i.e., not a
jury), and only after the defendant has admitted guilt. Therefore, if the defendant declines plea offers and
chooses to go to trial, deferred adjudication is not an option.
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