Probation Violations and Motions to Revoke
The scariest thing about a motion to revoke probation is that you are automatically in a tough spot. At this point, you’ve already pled to or been found guilty of the case. Second, the State of Texas doesn’t have to prove their case beyond a reasonable doubt anymore, just a preponderance of the evidence which is way easier to prove. Next, the violations listed on your motion to revoke will come directly from the probation officer who is charged with overseeing you. Many of the violations come first hand and directly from them – such as not reporting on a monthly basis. On one client years back, the probation officer followed the probationer out to his car without him knowing to confirm he was driving with a suspended license.
In the first meeting with all of my clients on these cases I tell them they usually have three choices: (1) you can fight all of the violations listed; (2) you can plead true to one or all of the violations and plead to the judge for your desired outcome; and (3) you can go to the court with an agreement with the State. In all three of these options, the discretion is with the judge on what they will do. Even with an agreement, the judge doesn’t have to follow the recommendation and can sentence you to the full range of punishment. Unlike a criminal trial where a judge or jury finds you guilty or not-guilty, a motion to revoke turns on whether they find the listed violations “true” or “not true.” If a judge finds that any of the listed violations are “true” then they have the discretion of revoking you and sentencing you within the range of your plea. This can be particularly fraught with danger if you are serving deferred adjudication for a first degree felony and the judge can sentence you to 99 years or life in prison.
Fortunately, if this is your first violation and you haven’t committed a new crime, many times the court will show a particular degree of mercy and reason and continue you on probation. The risk goes up exponentially each time you reoffend or the more violations you pick up. My other advice to clients in our first meeting is typically, “do everything you can on probation to get back on track.” If one of your violations is lack of community service hours performed – start working the hours. If one of the violations is coming up dirty on a urinalysis, start doing the tests on our own every week to show that you are clean. Whether its lack of proof of employment or not reporting weekly as directed, try to do everything you can to show that you are able to stay the course and finish your probation.
Now with regard to the violation itself, there are too many to list that can get onto your MTR. Further, Probation is usually trained with stacking as many different violations as they can onto a single motion to hedge their bets in case the desired outcome is revocation. It’s not unusual for a person to test dirty for a drug and think that’s their only violation only to find a motion with six extra violations for not paying certain fees, doing community service hours, and not reporting. Usually the case begins with you and what evidence you have to show the State may be mistaken in some of their stated violations. If you have emails showing that you reported on a date they said you didn’t, print them. If you have phone records showing you called in when they said you didn’t, print them. If you have proof of clean drug tests when the State said you were dirty, print them. Get evidence whenever and wherever you can. Document everything.
The best you can hope for in a MTR is a desired outcome before you even walk up to the bench. If the State is accepting of your efforts, they can decide to withdraw the MTR before going to the bench. If there won’t be a withdrawal but they are willing to agree to continue you on probation, then that’s the next best thing. Next best, only because you need the judge to agree to it. Most judges will not go against an agreed outcome on an MTR because if they do it enough times, attorneys won’t trust an agreement. Anything beyond those two options is wading into the unknown. In that case, you need to make sure the attorney standing beside you knows the rules of the game and how to play it. Call Brian Powers, Attorney at Law at (210) 222-9446 today for a free consultation.