Comment

Definition of “Convicted of a Felony.” The proposed instruction does not define “convicted of a felony” or specify that the conviction must in any sense be “final.” In the vast majority of cases, there will be no need to elaborate on this term.

If the evidence raises an issue on these matters, the instruction might appropriately be expanded to explain that a person is convicted of a felony even if the imposition of sentence is suspended and the defendant is placed on community supervision or probation. See Franklin v. State, 523 S.W.2d 947, 947–48 (Tex. Crim. App. 1975). This is the case even if the prior conviction has been set aside or a pardon issued. McDowell v. State, 235 S.W.3d 294, 298 (Tex. App.—Texarkana 2007, no pet.) (noting possible exception when action includes “an express finding by the trial court that the defendant was exonerated from the previous finding of guilt”).

On the other hand, a conviction must be final; an existing appeal from the conviction renders that conviction insufficient to bar community supervision. Baker v. State, 520 S.W.2d 782 (Tex. Crim. App. 1975). If the evidence of a conviction also indicates that it may be on appeal, the instruction should appropriately be expanded to make clear that, if this is the case, the defendant has not been convicted of the felony within the meaning of the legal standard.

Maximum Period of Supervision. The instructions tell the jury that the duration of the period of community supervision will be determined by the court and specify the length of time that may be imposed. Under the Code of Criminal Procedure, if the jury recommends community supervision, “the judge shall place the defendant on community supervision for any period permitted under Articles 42A.053(d) and (f), as appropriate.” Tex. Code Crim. Proc. art. 42A.055(c). Articles 42A.053(d) and (f) provide that the maximum period of community supervision for certain felonies is five years; for all other felonies, ten years; and for a misdemeanor, two years. Tex. Code Crim. Proc. art. 42A.053(d)(f).

Details of Community Supervision. A major concern for the Committee was how much of the detailed and complicated community supervision law to pass along to juries. Under current practice, juries are sometimes told the following:

The Committee tried to translate this sort of largely statutory language into terminology more likely to be understood by jurors. It tried to include the most significant aspects of community supervision without providing a misleadingly incomplete or oversimplified picture of the process.

Reference to Sworn Motion Filed by Defendant. Article 42A.055(b) of the Code of Criminal Procedure states, “A defendant is eligible for community supervision under this article only if: (1) 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 (2) the jury enters in the verdict a finding that the information in the defendant’s motion is true.” Tex. Code Crim. Proc. art. 42A.055(b) (emphasis added).

In current practice, instructions often use the precise terms used in the Code of Criminal Procedure that (1) refer to the defendant’s filing a sworn motion for community supervision, (2) refer to the defendant’s motion that states that he has not previously been convicted of a felony in this or any other state, and (3) tell the jury that to recommend community supervision it must enter in the verdict a finding that the information in the defendant’s motion is true. Some members of the Committee preferred this approach, in part because it permits a defendant who chooses not to testify to put the fact of his sworn representation of no prior convictions before the jury.

A majority of the Committee, however, concluded that under existing law the defendant is not entitled to have the jury informed that the defendant has met the legal requirement that this document be filed, as the defendant’s having made this sworn statement is not relevant to any issue properly before the jury.

The fact of having filed the required sworn motion and statement of no prior felony convictions does not entitle a defendant to a jury instruction regarding the jury’s power to recommend probation. There must be evidence before the jury that the defendant has never been convicted of a felony. Palasota v. State, 460 S.W.2d 137, 140–41 (Tex. Crim. App. 1970) (“The mere filing of the sworn motion for probation is not sufficient; there must be proof of appellant’s eligibility for probation in support of such sworn motion.”). Accord Walker v. State, 440 S.W.2d 653, 659 (Tex. Crim. App. 1969); Beyince v. State, 954 S.W.2d 878, 880 (Tex. App.—Houston [14th Dist.] 1997, no pet.).

The jury instruction need not, and should not, require the jury to find “as a prerequisite to awarding probation, that the defendant had filed an affidavit stating that he never has been convicted of a felony, and that the defendant had filed a motion for probation.” Booher v. State, 668 S.W.2d 882, 883–84 (Tex. App.—Houston [1st Dist.] 1984, pet. ref’d) (defendant not harmed by jury instruction requiring such findings).

The fact that the defendant has made and filed the motion for probation that is before the jury does not constitute the evidence required for a jury instruction. Green v. State, 658 S.W.2d 303, 308–09 (Tex. App.—Houston [1st Dist.] 1983, pet. ref’d) (“The reading of the sworn motion proved that appellant had filed a sworn motion for probation alleging that he had never been convicted of a felony; however, it did not constitute proof of the matter asserted.”).

In fact, the defendant is probably not entitled to introduce before the jury evidence that the sworn statement was made and the motion filed. McMullen v. State, No. 06-07-00058-CR, 2007 WL 2909454, at *2 (Tex. App.—Texarkana Oct. 8, 2007, no pet.) (not designated for publication) (“A sworn application for community supervision is hearsay and not admissible as evidence.”). Accord Carter v. State, No. 05-93-00608-CR, 1994 WL 169578, at *1 (Tex. App.—Dallas May 4, 1994, no pet.) (not designated for publication) (trial court did not err in refusing to permit defendant to present testimony of court clerk that defendant had filed sworn motion for probation containing an assertion that he had never been convicted of felony “because such evidence would not have shown he was eligible for probation”).

Therefore, rather than the jury finding the information in the defendant’s motion is true, the Committee recommends that the verdict refer to the contents of the motion by stating that the jury finds the defendant has not previously been convicted of a felony in this or any other state.