XXXI. Judge May Change Jury Sentence of Jail Time to Probation

Ivey v. State, 2009 WL 322340 (Tex.Crim.App. 2009).

This was a DWI trial where the defendant went to the jury for punishment and deliberately failed to file a sworn motion with the jury declaring that he had never before been convicted of a felony offense in this or any other state, thus rendering himself ineligible for a jury recommendation. The jury assessed his punishment at $2000 fine and thirty-five days in jail. After conferring informally with the jury off the record, the judge announced she would suspend the imposition of the appellant’s sentence, place the defendant on community supervision for a period of two years, and suspend all but $500 of the fine. The trial judge also imposed a thirty day jail term and a requirement that the appellant complete 60 hours of community service as conditions of the community supervision. The issue on appeal was whether a trial court can suspend a jury-assessed punishment and order community supervision when the jury itself could not have recommended community supervision. The Court of Criminal Appeals held it was not error for the trial court in this case to place the appellant on community supervision even though the jury assessed his punishment and did not recommend it. It was within the discretion of the trial court under Article 42.12, Section 3, to do so, so long as the appellant met the criteria for community supervision spelled out there.