Five Ways to Stay Out of Trouble in 2018

Five ways to stay out of trouble in the New Year:

Happy New Year!! I hope you have a prosperous, peaceful one. It is no one’s goal to get arrested and charged with a criminal offense in ANY year, and to that effect I am going to give you five ways you can avoid an arrest this year:

1. Do not drive with marijuana in your car:

I do not suggest being a heavy user of marijuana. It is not the best path to prosperity and productivity. However, if you are going to use marijuana in any quantity, keep it at your home, locked away safely. Driving with it is a very bad idea because the scent of marijuana gives a police officer probable cause to search your car and/or prolong the detention long enough to call a K9 to do a sniff-search. If the marijuana is found, you will be charged with possession of marijuana. If you must drive with it, limit the times you do this and only do it when it cannot be avoided. When you drive with it, keep it an air tight container out of view, or even invest in a portable vacuum sealer to seal it up before driving. NEVER SMOKE MARIJUANA IN YOUR CAR.

2. Always have a safe ride home after drinking:

If you are going to drink alcohol away from your home, always, always arrange for a sober (completely sober – not just “not that drunk”) ride home. Take a cab, have a designated driver, take a ride share, or take a means of public transportation. Arrests for DWI are increasing nationwide, and even if you are not truly intoxicated and have only consumed a limited amount of alcohol, it is an arduous undertaking to beat a DWI. It is also expensive.

3. Do not gamble at shoplifting:

You may not get caught every single time if you are a habitual shoplifter. But you will get caught eventually. Shoplifting charges are embarrassing, a pain to dispose of, and will disqualify you from many, many jobs.

4. Do not drink to the point of oblivion in public:

Public intoxication arrests are common. If you get very intoxicated and start causing a scene around a police officer, or if you are intoxicated and cannot seem to find your way home, you will probably get arrested for public intox. APD uses these as a “end the situation” type of arrest – if they don’t know what else to do with you but they have to figure out something because you can’t stay out on the street due to your intoxication – they will take you to jail for Public Intoxication.

5. Do not stay in toxic relationships:

If you are in a toxic, dangerous relationship – GET OUT. Do it as soon as you can safely. Yelling, verbal abuse and emotional abuse will lead to physical abuse and this will lead to intervention by the system. Even if you call the police because you are the one being abused, it is not always the case that the police arrest the right person. Sometimes they mistake defensive injuries as the primary injuries and arrest the person that was the actual victim. If you need resources, call the Domestic Violence Hotline.

I hope that all my clients, my potential clients, and their friends and family can have a peaceful year this year and stay out of the system. It is so time and resource consuming to get arrested over and over again, so be smart and employ these strategies above so you can stay free this year.

Happy New Year from Stefanie Collins Attorney at Law.

Holiday Wish List

Holiday Wish List for Criminal Justice Reform:

As it is Christmas, I wanted to send a word of hope to my clients and the community.  Christmas is a time for generosity, second chances, and peace.  I am reflecting on how we make the system work for the community, making our communities safer, and ensuring that justice is done.  I think it is becoming a commonly held idea that our system needs reform and we need to back off the idea that we need to completely ruin someone to keep our community safe.  I think the Texas legislature, which is going into session in January, need to hear from those of us who want common sense reforms.

There are five reforms I wish for this season:

1.       Reform fines and fees to make them proportionate and allow a means to dispose of fines and fees if a Defendant is indigent:

It is not fair to make poor people decide between paying a fine or fee and paying a bill or the rent.  We need to have real means by which to reduce indigent people’s fines and fees through income evaluation and sliding scale payments.  We need to also be sensitive to realities that limit poor people’s abilities to do community service and we should not saddle people with hundreds of community service hours they cannot realistically do to “give them a chance”.  Chances need to be real, not ephemeral.

I also am a very staunch advocate of an abolition of the Drivers’ Responsibility Program (surcharge program).  I believe this does nothing but penalize unsophisticated, poor people and is a back door tax on the people in the state who can least afford it.  It makes us less safe by disqualifying people from insurance coverage and the regulation and licensing of them as drivers. 

2.       Decriminalize drugs and provide access to treatment and services to address addiction and mental health:

I think one thing Texas could do this legislative session to better the system for everyone would be to move every category of possession down one level of offense.  This means that a Class B possession of marijuana would become a fine only Class C offense, state jail felony less than a gram of cocaine would be a Class A misdemeanor, etc.  That is a very common sense decriminalization regime that would put in place lifesaving and cost saving measures right away.

Also, this legislative session, Texas could fund at a meaningful level addiction treatment and mental health treatment.  We have people waiting in line for months to get services, get an appointment with a doctor, etc.  We need to give people meaningful access to these services so they can better their lives and exit the system healthy and with a path forward.

3.       Provide meaningful opportunities for youth:

I honestly believe that most young people do not choose a criminal path because it is ideal and glamorous.  Maybe a minority do, but it becomes ideal through social and environmental conditioning, not because there’s just some “bad” kids.  We need to expand education and job opportunities for kids in our communities.  Rural and urban kids both need this.  I do think better and more trade schools will help, but it also needs to be meaningful opportunities to go to college for kids who could be high achieving academically.  Kids need to be given the tools they need stay in school. 

Setting expectations for kids to stay in school and pursue a productive path along with making those expectations real by providing the opportunities will go a long way to reducing the amount of kids who become involved with the system.  Knowing they are expected to follow a productive path and not be given the impression that s/he is a “throw away kid”, while giving them the resources,  makes that criminal path less attractive.

4.       Help formerly incarcerated to Re-Enter:

Recidivism is high.  Maybe one of the biggest predictors of incarceration is prior incarceration.  We need to prepare people on the inside for Re-Entry to the free world with training and education programs, mental health services, and counseling services to help them become better workers, parents, and citizens.

We also need to have community dialogue around the barriers we create to Re-Entry.  We need to have some common-sense reevaluation of privately erected barriers to housing and jobs.  Is it productive to ensure that someone incarcerated for simple possession cannot rent an apartment in many urban areas in Texas?  Is it productive to refuse to hire anyone with a felony conviction? I don’t believe that a prior felony should be a red-line barrier to these opportunities – people need to be evaluated based on the real risk THAT individual poses to the community and his or her skills and abilities.  We are preventing an entire, rather large class of people from reentering the community and therefore we are having more people dependent on the safety net, not able to model work and productive activity to their children, and not able to contribute to the economy and society. 

I think we also need to move to repeal laws that prevent people with certain convictions from getting aid to go to school. A felony conviction for drugs should not ban you from federal student aid for life – not when being a rapist doesn’t.

I am hopeful that the Texas legislature will not pass a bill prohibiting cities like Austin from banning questions about criminal history during the initial job application process.  This is common sense to allowing people to reenter. 

5.       Pass laws that allow people to expunge or seal their records:

Right now, you must have a very good outcome – a dismissal or an acquittal – to get an expunction in Texas.  You must have completed a deferred adjudication successfully to get your record sealed of that offense.

This saddles people with records of decades old convictions, even for minor stuff.  I do not think that most anybody should be judged on their convictions from twenty or thirty years ago.  People should get a second chance if they can prove through their actions that their run in with the system was a one time mistake. 

Some states, even some conservative states in the South, have much more liberal expunge/seal laws and allow people with certain kinds of convictions to expunge them after demonstrating reform and compliance with the law for a certain period after the conviction.  I do not see why Texas cannot do the same.  We are losing a wealth of talent when people with a minor conviction cannot ply their trade or contribute at a job because an employer won’t hire after looking at a background check.

Texas needs to invest in its people more and in the correcting of minor behaviors less.   Our people need opportunities, not mass incarceration.  We need to end debtors’ prisons and programs that hold people in a cycle of fines, fees, and warrants. 

We need to exercise some humility and compassion too.  After people pay their debts, we need to extend them a second chance and allow them to re-enter our greater society.  Anything else fails us as a community and them as individuals.

Merry Christmas from Stefanie Collins, Attorney at Law.  Be kind to each other this season. 

Trans Day of Remembrance: Trans People in the Criminal System

Today is TransGender Day of Remembrance.  This day is set aside to remember Trans people lost to violence.  To add my voice to the call for safety and equality for Trans people, I want to point out some of the issues that Trans people deal with in the criminal justice system.

Trans people are overrepresented in both the juvenile and adult criminal system.  Trans youth are a high risk of homelessness due to rejection by their families and therefore may resort to survival type crimes to stay alive – things like sex work, theft, and small time drug distribution.  Sixteen percent of trans adults have been incarcerated—this is 5% higher than the cisgender population.  Again, things typically thought to be survival type crimes are common among poor trans adults – things like sex work and drug distribution.  Not only does this put trans people at a high risk of arrest and incarceration but also violence against their persons.

When incarcerated, trans people report higher rates of assault and sex assault.  Perhaps one third of the trans incarcerated population will be assaulted in some way.  Because of this, jails and prisons should reform their policies to allow trans peope to stay in the unit that they feel is most gender affirming. Jails and prisons should not simply use the sex assigned at birth to determine unit housing for trans people.

Texas Department of Criminal Justice took a radical step forward – finally – in 2015 and allowed for inmates experiencing gender dysphoria to undergo hormone replacement therapy while incarcerated and to live as their true gender.  This means that trans people who go to prison in Texas will not have to gender conform due to regulations and should not have an interruption in their HRT.

The standard of care for Trans people and also our common sense of decency and fairness toward all people demand that Trans people be treated with full equality and be allowed to express their true gender identity regardless of their involvement with the criminal justice system.  They should not be forced to conform to their gender assigned at birth by judges, probation officers, or prison administrators.  Also, we should work to end policies that make it more likely for Trans people to resort to small time, petty crimes for survival purposes that make them vulnerable to arrest and violence. 

We mourn the losses of Trans people and call for universal respect for Trans people and an end to violence. 

Theft of Property: the truth on shoplifting

Theft of Property (ie “Shoplifiting”):  Some Issues to Keep in Mind

I defend many, many people accused of theft of property, what we casually call “shoplifting”.

I see some common themes in these cases that I will try to address here.

You are really gambling when you attempt to shoplift out of a big store.  Walmart, Target, HEB, and department stores all take loss prevention very seriously and spend a great deal of money on technology and staff to try to stop shoplifting.  They may not get you every single time but they might and if you make a habit out of it you will get caught. 

There are security cameras all over the big stores.  They may be being monitored from somewhere else in the store.  There are people in the aisles in plain clothes that work for the stores that are watching people.  Unfortunately, if you are a person of color they are probably watching you with more suspicion.  It is not fair, but you need to be aware of it. 

If they see you conceal items, they aren’t going to stop you at first.  You may get some confidence and feel like no one knows.  However, the reason they aren’t doing anything to you is because it is not illegal to conceal items in the store.  You haven’t broken the law yet so there’s no reason for them to stop you or get your attention.  It is not illegal until you walk past “all points of sale” and attempt to leave with the concealed items.  That’s when you’ve broken the law and if they know you have items that you have not payed for, loss prevention officers will make an attempt to detain you.

Yes, it is legal for them to detain you.  They can detain you to prevent the theft of items even if they aren’t peace officers.  Any private citizen can use force in Texas to stop a theft of property. They can use force to detain you.  Do not fight them.  Do not use force to try to get past them.  If you do, you can be charged with assault, or worse, robbery.  It’s not worth it.

They will detain you until the police arrive.  All the big chains always pursue charges against you for theft.  Some of the little ones may let you go if they recover the property but they don’t have to do so.  And yes, even if they get the property back you can still be charged with theft if you attempted to leave the store with the items. 

If the items are under $100 when they ring them up at the register, they will charge you with a Class C misdemeanor theft, write you a ticket with a court date – that you should not blow off – and let you go.  If it’s above $100 but below $500, it’s a Class B misdemeanor.  The police have the option of arresting you and taking you to jail, but the officer may also write you a Class B cite and release.  This is not a Class C ticket.  This is a citation to return to court to bond out on a personal bond on a Class B misdemeanor with a court date in County Court.  Do not blow this off or you will also be charged with a Class A misdemeanor of Failure to Appear/Bail Jumping.  If you get charged with both the theft and the FTA, when you get arrested you will have to bond out on both and it complicates the entire process and costs you more money. 

Shoplifting is a bad idea.  This is a crime of poverty but it’s not usual to see people stealing food and necessary items.  Sunglasses seem to be a very commonly shoplifted item, along with makeup, underwear, and other small items.  DVDs and small electronics are also common and can run in value up to a resulting Class A misdemeanor or state jail felony charge.

Be very careful:  a theft, even in the Class B range, with three or more convictions prior to the date of arrest can result in you being indicted on a state jail felony theft.  The punishment range on a state jail felony is six months up to two years in the state jail.

Call me today if you are charged with theft of property. 

Pitfalls of Probation

Pitfalls of Probation:   What You Need to Know Before You Sign Up

Sometimes, probation is a great offer on your case.  If you are offered probation on a serious felony in which a long prison term is also an option under the law, you need to seriously consider taking it despite the multiple restrictions on your freedom you will experience. 

However, on misdemeanors and state jail felonies, it’s a different story.  You may be better off pleading to a short term in jail to finish the case.  Or, in the alternative, if you are offered a reduction or a dismissal in exchange for doing something, like a class or a community service, you need to do it to avoid probation. 

There are many, many pitfalls to probation.  Many people approach probation as if it is an easy way to avoid jail or get out of jail quickly if you are in jail pretrial, but this is absolutely not the case and you need to rid yourself of this assumption.  Probation is not easy and you have the threat of jail hanging over your head the entire time. 

When you are on probation, you are seriously restricted in your freedom in many, many ways. You are given certain requirements and certain policies by which you must abide, and if you fail to do so your probation officer is going to file what is called a “motion to revoke probation”.  Once this motion is filed, it will generate a warrant.  You are usually given a no bond on that warrant, meaning you will not be allowed out on any type of bond.  If a judge chooses to set a bond, it is really, really unlikely you will be allowed out of jail on a personal bond.  If you cannot get a surety bond, you will be in jail until the motion to revoke probation is resolved. 

I will discuss three common ways you might violate your probation:

• Committing a new offense:  You will get a motion to revoke probation filed if you commit a new offense of a Class B misdemeanor or above.  Do not think under any circumstances that your probation officer is “cool” and will not file a motion if you get arrested again.  S/he will and you will go back to jail even if you are released on the new offense already.  If you cannot make bond on the new offense, then you will be held on the motion to revoke and the new offense.

• Drug and alcohol use:  It is absolutely a violation of your probation to use alcohol at all or any kind of illicit drug or prescription drug if it is not prescribed to you.  If you go into a probation meeting looking like you are intoxicated or hung over, the probation officer is going to test you – and if you test positive s/he is going to file a motion to revoke.  There is no room for just a single positive test. 

• Absconding or missing meetings with no phone call or attempt to reschedule:  missing meetings with your probation officer is not allowed.  If you miss meetings and make no attempt to reschedule, you will get a motion to revoke filed. 

I get many phone calls from people who want off probation and tell me that “they did not realize this is what they were getting into” when they pled to probation.  I represent many clients on revocations of probation.  Probation is not an easy path.  Jail sounds like a terrible fate, but it is important to remember that you may go back to jail anyway if you are filed on for revocation. 

If you are facing a probation revocation, call me today to talk about the possibilities of how to resolve your case.

What is a 12.45?

Article 12.45:  What is a 12.45 and what does it mean to you?

Texas Penal Code 12.45 reads:

“Sec. 12.45.  ADMISSION OF UNADJUDICATED OFFENSE.  (a)  A person may, with the consent of the attorney for the state, admit during the sentencing hearing his guilt of one or more unadjudicated offenses and request the court to take each into account in determining sentence for the offense or offenses of which he stands adjudged guilty.

(b)  Before a court may take into account an admitted offense over which exclusive venue lies in another county or district, the court must obtain permission from the prosecuting attorney with jurisdiction over the offense.

(c)  If a court lawfully takes into account an admitted offense, prosecution is barred for that offense.”

What does this mean? 

In practice, what this means is that if you have multiple pending charges, one or more of these could be “12.45’d” into one offense to which you actually plead guilty and are sentenced. This would mean that you would not be punished for the offenses that are “12.45’d” and those charges would essentially be discharged. They would remain unadjudicated and you would never again be prosecuted for them.

You are not pleading guilty to the offenses that are “12.45’d”.  You are pleading guilty and are being punished for one of your other charges but these are basically being folded into the charge to which you are pleading.

Some issues with 12.45:

The state has to recommend a 12.45 in your case.  The judge cannot do it on his/her own.  A defense attorney cannot ask a judge for a 12.45.  It absolutely requires the state’s recommendation and approval.

A 12.45 disposition on a case is not a dismissal.  Your record will not reflect a dismissal.  You will not be able to tell employers that the case was dismissed.  Your record will reflect that these are unadjudicated.

This means that you are not eligible for an expunction of a 12.45 disposition case.  Because the charge will remain unadjudicated, and not dismissed, it does not fall within the parameters of cases that can be expunged. 

One great thing about a 12.45 is that the case cannot be used for enhancement purposes.  If a DWI is “12.45’d” your next DWI will not be enhanced with the DWI that is “12.45’d” for example.

Lastly, a case cannot be “12.45’d” into a case in which you are getting deferred adjudication.  You can only 12.45 a case into a final conviction.

If you have multiple charges, a 12.45 of some of the charges may be possible.  Call me today for a consultation on how a 12.45 might be best in your case.  

LGBT Stereotypes and Criminal Convictions

There are very complex issues surrounding LGBT people in the criminal justice system. 

Stereotypes about gay people can lead to them being overcriminalized and convicted of crimes that they did not commit.  Because for hundreds of years, being gay was considered an abberation and an abnormality, it was often (and still is in some jurisdictions) used by the prosecution to show that the gay person is also prone to other types of abnormal, and criminal, behavior. 

Two examples of this:

In the 1970s in Tyler, Texas (Smith County), Kerry Max Cook was convicted and sentenced to death for the murder of Linda Jo Edwards.  The prosecution’s theory of the case was that Kerry, a suspected but not “out” gay man, had watched a movie tht had inspired him to fly into a “gay rage” and that drove him to murder a woman. The prosecution said at his trial that gay men hated women and that was evidence that he had murdered this woman.  He was exonerated 30 years later and released from death row after coming within days of execution several times.  You can read more about Kerry here: https://en.wikipedia.org/wiki/Kerry_Max_Cook

In 2000, four women in San Antonio TX (Bexar County) were convicted of sexual assault of two young women.  They were sentenced to between 15 and 37 years for this assault.  They maintain their innocence.  They are lesbians, and the prosecution in their cases cited their lesbianism as the driving cause of the assault.  They are fighting to be exonerated of these crimes. You can learn more about them here: https://www.texasobserver.org/mystery-san-antonio-four/

The state can sometimes seek to use a person’s sexuality as a tool to make a jury suspicious and biased against a Defendant.  Especially in child sex cases or sex assaults, the state can seek to connect the sex abuse to the person’s same-sex orientation as a motivating factor for the crime.  People have grave misunderstandings of what it means to be gay, and the prosecution can use that misunderstanding to get convictions by playing on stereotypes of LGBT people.

It is vitally important to LGBT people charged with crimes that they have an attorney who will push back against these stereotypes.  Gay people aren’t any more prone to violent crimes, assaults, or sex crimes than anyone else and may even be less likely to commit these kinds of crimes.  We have to fight back against these attempts to use stereotypes to convict LGBT people and make up for lack of evidence. I defend gay people and make the prosecution, judges, and jury understand that we are more often victims rather than perpetrators. 

What is 12.44(b)?

What is a 12.44(b)?

Texas Penal Code 12.44(b) reads: “At the request of the prosecuting attorney, the court may authorize the prosecuting attorney to prosecute a state jail felony as a Class A misdemeanor.”

What does this mean?  It means that if you are charged with a state jail felony, the state can move to reduce it to a Class A misdemeanor and punish the crime like a Class A misdemeanor, which means you could be punished by up to a year in jail, or probation, or a deferred adjudication probation. 

This means that your record should reflect that you did not plead guilty to a felony but instead pled to a misdemeanor offense.  This could be like an “attempted” possession of controlled substance less than a gram – which is a Class A misdemeanor. 

It also means that if you are placed on probation and the state moves to revoke your probation, your potential jail time is only up to a year in the county jail. 

It also means that if you are successful on a deferred adjudication, you are automatically eligible for a non-disclosure after your successful release from deferred probation.

Potential problems may include: 

The misdemeanor is not usually refiled as a new case.  You are punished under the old cause number, and if the clerk does not code the reduction right it may look like, on your record, you pled to a felony.  Your defense attorney should do everything s/he can to amend the information, especially if you have immigration concerns, to reflect the misdemeanor allegation.

The state has to agree to 12.44(b).  If you are charged with a state jail felony and believe you should receive a 12.44(b), call me today to talk about the possibilities. 

Statute of Limitations: What it Means for You

Statute of Limitations:  Shouldn’t my “old” case get dismissed?

In this article, I’m going to explain the statute of limitations and what it means, and doesn’t mean, in terms of your criminal case.

The statute of limitations is a time bar against the filing of a case after the actions that would give rise to the case have occurred.  For misdemeanors, the statute of limitations is two years.  For most felonies, the statute of limitations is five years, but for some it is explicitely changed in the Penal Code.  Five years is the default unless it is changed by statute.  For very, very serious crimes, there may not be a statute of limitations or it may be a very, very long period of time. 

What is the statute of limitations?  It basically means if you do a criminal act, like an assault with bodily injury, the police and prosecution have to file the complaint charging you with a crime within the misdemeanor statute of limitations of two years.  The complaining witness cannot make an outcry two years and one day after the assault and get a case filed.  It is time barred.   If for some reason, the police have evidence that you were selling drugs and the prosecution does not get that case of manufacturing and delivering indicted within five years, it is barred from going forward by statute.  Even for things like traffic tickets, Class C misdemeanors, if the state does not file a complaint (the formal charging instrument) within two years, it is barred from going forward.  They have to dismiss the charge and cannot fine you for running that red light. 

What does it not mean?  It does not mean that once you have a charging instrument filed against you -  a complaint in a misdemeanor and an indictment in a felony – they have to dismiss “after the statute of limitations has passed” if you have not pled, been tried, or had the case dismissed.  The statute of limitations is NOT AT ALL a bar to prosecution once the charging instrument has been filed.  The case can remain pending for a long time afterward.  If you leave town, bond forfeit, skip court, etc, and the case remains pending with no plea for 15 years – the prosecution is not bound by the statute of limitations to dismiss the case.  They may dismiss for other reasons, but not because the statute limitations demands it.

It also means you may not get arrested on it immediately, or even until the “stature of limitations” has theoretically ran since the date of the incident.  You may get indicted and move to Mexico in the meantime.  When you come back across the border in 5 years and get arrested crossing the border – there is no statute of limitations defense just because you never got arrested on the warrant. 

I have had clients ask me “why are they expecting me to plea?  This case is old.”  Well maybe so.  The time passed may weaken the strength of the evidence against you --- the witnesses may not have the same addresses and may not be locatable – but it may not either.  A .25 BAC is a .25 BAC whether the DWI is 6 months old or 3 years old.  If the case is filed, the prosecution may want to go forward regardless of the age of the case.  Your attorney is not going to be able to urge a statute of limitations defense. 

Bottom line:  statute of limitations bars the filing of a case after a time has passed.  It does not bar prosecution after the filing of a case, regardless of how much time has passed. 

If you are struggling with an old case, there may be other ways to defend it besides urging its dismissal based on statute of limitations.  If you have an old case, and you want to talk about how to resolve it, call me today.  

What is 12.44(a)?

What is Section 12.44?: A Two Part Series

This is a two part series on Texas Penal Code Section 12.44. As 12.44 is itself divided into two parts – (a) and (b) - I will discuss (a) in this article and (b) next week.

Here is the actual statute:

Sec. 12.44. REDUCTION OF STATE JAIL FELONY PUNISHMENT TO MISDEMEANOR PUNISHMENT. (a) A court may punish a defendant who is convicted of a state jail felony by imposing the confinement permissible as punishment for a Class A misdemeanor if, after considering the gravity and circumstances of the felony committed and the history, character, and rehabilitative needs of the defendant, the court finds that such punishment would best serve the ends of justice.

What does this mean?

This means that if you are charged originally with a state jail felony, in which the punishment is a minimum of six months in the state jail institution with a maximum of up to two years in the state jail, you can plead to and be convicted of that state jail felony and yet be allowed to be punished with time in the county of jurisdiction’s jail instead of the state jail.

It also means the state could move to reduce a higher level felony to a state jail and then punish it with time in the county jail, but that is more rare. The more serious the felony is and the more it involves violence the less likely it is that the charge will be reduced to a state jail felony anyway, and to be punished under 12.44(a) you have to be convicted of a state jail felony.

What do you need to know?

YOU WILL STILL HAVE A FELONY CONVICTION ON YOUR RECORD. Although under 12.44(a) you will be punished as if it’s a misdemeanor, you are still being convicted of a state jail felony and your record will reflect that.

YOU ARE NOT ENTITLED TO A 12.44(A). Even if you are originally charged with a state jail felony and have never been charged with a felony before, you are not entitled to a 12.44(a). Its not like an “everyone gets one 12.44(a)” type thing.

Under 12.44(a) you may be offered “back time” – ie time served—using the time you were in the jail when you were arrested. However, you may be asked to do more time. The range of punishment under 12.44(a) is the same as a Class A – up to one year.

It is common in Travis County for possession of controlled substance less than 1 gram and third time thefts of under $1500 to be punished by 12.44(a). But you shouldn’t count on it. Every case is different and every prosecutor is different. Every judge is different.

Also, 12.44(a) may sound like a good deal – no time in the state jail and no probation always sounds good, especially if you are already incarcerated and are being offered time served under 12.44(a). However, if you have no felony convictions, it may be more wise to hold out for a real misdemeanor conviction or a straight dismissal in order to preserve your record.

I’m always willing to talk to people charged with felonies about the possibility of a 12.44 (a) or even better.