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Board Certified - Criminal Law - Texas Board of Legal Specialization

Criminal Law Blog

October 02, 2009

This blog is the second of two about section 12.44 of the Texas Penal Code. 

If you had to accept either a 12.44(a) and a 12.44(b), then it’s probably obvious that you would prefer a 12.44(b) over a 12.44(a).  But then, it’s probably equally obvious that except for very unusual circumstances, you probably won’t be offered a 12.44(b). 

So the question isn’t which would you prefer.  The question is: under what circumstances would you want to accept a 12.44(a)? 

Here are some factors that would make the difference between accepting and declining an offer for a 12.44(a).  The most common is if you already have been locked up for a while and you’ve been getting 2 for 1 credit or 3 for 1 credit and you know the State’s case is fairly strong.  In that case, a 12.44(a) might look pretty attractive, since it can get you out of jail faster. 

Another factor would be pre-existing criminal history. 

Many people who have not been convicted of a felony before strongly resist entering a plea of guilty to a felony because a felony on their record because that can kill their chances to get a good job. 

But if you already have two or more felony convictions or probations, an additional state jail felony conviction may not seem to be quite as big a deal, career-wise. 

A factor that bears on whether you’ll even be offered a 12.44(a) is whether the State has already reduced a possession case to a State Jail Felony.  For example, the weight range for a State Jail Felony possession of cocaine is anything up to, but not including, 1 gram. 

But suppose a defendant possesses exactly 1 gram of cocaine.  One 1/100th of a gram less and the defendant would be looking at a State Jail Felony.  Under those circumstances, some felony prosecutors will see fit to proceed on the case as if it were a State Jail Felony charge, and not the 3rd degree felony that it really is.  If the prosecutor has reduced the charge that way, he may not look very kindly upon a counter-offer of county jail time under 12.44(a). 

He won’t agree to reduce the charge in exchange for nothing and then be asked to also reduce the punishment to misdemeanor level. 

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