The court of public opinion can be blunt and unforgiving.
Two rulings in child sex offense cases in Bell County district courtrooms drew intense public ire. on the Herald’s Facebook page in August, as people wondered if the punishments doled out by the judges were punishments at all.
“In the name of Jesus, someone remove that judge from the bench!” one person wrote about a case in which a Killeen man admitted in August to molesting a 6-year-old girl and pleaded guilty to the first-degree felony charge of indecency with a child by sexual contact.
The judge sentenced him to six years deferred adjudication probation and a $1,500 fine.
Less than a week earlier, a Copperas Cove man pleaded guilty to the aggravated sexual assault of a Killeen girl who was 13 at the time. Another Bell County judge sentenced him to 60 days in the Bell County Jail and 10 years of deferred adjudication probation.
On the Herald’s Facebook page, people were discussing how to file a petition to get judges removed from office.
A search through the Herald’s digital archives to 2004 showed that all three judges on the bench in Bell County district courts have issued deferred adjudication decisions.
What is it?
With a deferred adjudication, the judge accepts a guilty plea, but rather than entering the final judgment, holds it in abeyance while the person completes his or her community supervision, or probation. The judge then dismisses the criminal case if person completes the term, said Kathryn Dyer with the University of Texas Law School. She spoke to the Herald about deferred adjudication probations in general, not specifically about Bell County.
Dyer said it is a misconception that deferred adjudication probation is not punishment.
This community supervision can come with a host of hassles: electronic monitoring; fines; community service; and drug or alcohol testing, rehabilitation or counseling. People convicted of sex crimes have to register as sex offenders.
“And they still have an arrest record that cannot be expunged, though some people may be eligible for a non-disclosure order that seals the record from some entities,” Dyer said. Although the arrest record remains, there is not a conviction record, she said.
Deferred adjudication opens defendants for harsher future punishment if they are sent back to court on violations of probation, even for small, technical infractions like missing an appointment with the probation officer.
“It’s much riskier from a sentencing perspective,” she said.
For example, Dyer said, a second-degree felony carries up to 20 years in prison. If a person chooses straight probation with a criminal conviction, his lawyers might negotiate a plea agreement for a five-year sentence probated over a certain period of probation supervision.
“So if he violates probation, the maximum he’ll face is up to five years in prison,” she said.
“But if the prosecution and defense agree on deferred adjudication probation, and the person violates the terms, they’re now looking at the full range of punishment – up to 20 years,” she said.
Why use it?
Deferred adjudication probation became an option for judges in the mid-1970s.
“The idea behind it was to relieve individuals of the burden of carrying a criminal conviction for the rest of their lives,” she said.
Dyer said she teaches a case-by-case approach for future lawyers who will need to decide if deferred adjudication probation is right for their client.
“For me, it’s less about what the charge is and more about whether I think my client would be served best by deferred adjudication probation,” she said. “It’s tempting to jump at it because there’s no prison time, but I try to set clients up for success. Probation can be expensive with many challenging conditions.”
Deferred adjudication probation is one of five dispositions possible, according to the Office of Court Administration. The others are:
- Conviction by a guilty plea, by the court or by the jury
- Acquittal by the court or a jury
- Dismissal of a case
- Motions by prosecutors to revoke probation
“Prosecutors have high caseloads, and they’re under pressure to resolve cases. Deferred adjudication offers provide a way to get a case off of their caseload without the time of going to trial and presenting evidence to a jury,” Dyer said. “It’s off the docket, and it counts as a guilty plea.
“However, in my experience, prosecutors on any particular case are not expressing that concern when making plea offers,” she said.
No easy decision
Bell County District Attorney Henry Garza said his prosecutors do not generally seek deferred adjudication probation for “violent or serious offenses.”
“We’ll take the position that the individual should be sentenced to the penitentiary, and the defense generally will take a different stance,” he said. “We’ll take our stance before the court, bringing evidence, witnesses and victims.”
Garza said judges have plenty to consider.
The court has before it the arguments, evidence and witnesses brought by attorneys, as well as a “pre-sentence investigation report that structures items to be weighed” by the judge, he said. A pre-sentence report tells the judge about the person’s history and criminal history as well as their risk level for committing another crime.
And, then, “the court makes the call,” Garza said. “The court is independent and makes the final decision. In some cases, the court gives a second chance.”
Garza said there are “extenuating circumstances” when the prosecution does not argue against an outcome of deferred adjudication probation.
“If a victim asks us to not go forward, or if a child victim is terrified to go through the court process, we don’t want to create more harm for the child,” Garza said. “We’ve visited with the family and victim and (extenuating circumstances) are not always evident on the surface.”
Deferred adjudication probation is commonplace in the criminal courtrooms of Central Texas, even for violent crimes, and it’s nothing new, either, according to Texas Office of Court Administration data since September 2010.
Over the last eight years in Bell County, more people received deferred adjudications (33.5 percent) than were sentenced to jail or prison (25.6 percent) for aggravated assault/attempted murder. Almost 21 percent of child sex crimes cases were resolved with deferred adjudication probation and 36.2 percent were sentenced to jail or prison.
An average of 20 percent of violent crimes, not including capital murder or murder, in Bell County since 2010 have been resolved with a guilty plea followed by deferred adjudication probation. Capital murder and murder are violent crimes but deferred adjudication probation is not used.
Deferred adjudication has been used in “other homicides,” an Office of Court Administration classification for manslaughter and criminally negligent homicide. It also has been used in cases of aggravated assault/attempted murder, sexual assault of an adult, indecency with or sexual assault of a child, and aggravated robbery/robbery.
Bell County judges use the deferred adjudication probation method of punishment more often than their colleagues in Coryell and Williamson counties, the data showed.
In Williamson County since 2010, the percentage of violent crime cases resolved by deferred adjudication probation stayed solidly under 20 percent in each category. Just over 16 percent of child sex crimes cases were resolved with deferred adjudication probation and 31 percent of offenders were sentenced to jail or prison time.
Coryell County has the lowest percentage of deferred adjudication probation dispositions, less than 15 percent, except in the aggravated assault/attempted murder category. Slightly more cases, 26.8 percent, ended in deferred adjudication probation while 26.5 percent ended in confinement. For child sex crimes, Coryell County judges used deferred adjudication probation 13 percent of the time and sentenced 41.9 percent of offenders to jail or prison.
Law enforcement concerns
“Frustrating” was a word that kept arising when Killeen Police Chief Charles “Chuck” Kimble discussed the issue with the Herald. Speaking specifically about child sex abuse and assault cases, he said his detectives stay with victims through the entire painful journey.
Detectives are there at the hospital after an outcry of abuse. “The victim is at their most vulnerable at that point,” Kimble said. “The detective is there through the healing process, and then they help (the victim) get ready for trial. And then to see an offender get a lenient sentence is frustrating. Victims count on us as police, so my detectives get frustrated when the victim is upset (by the punishment).”
Some decisions made from the bench can affect the morale of his officers.
“They have hundreds of man-hours invested,” Kimble said. “Especially when it comes to sex assaults and youth victims, our detectives are people, too.”
A big part of the process is working closely with the district attorney’s office.
“We work cases with the goal to make a victim whole and sometimes that is incarceration (of the defendant) ; we do our best to put people in jail especially if it’s a shock-the-conscience crime,” Kimble said. “But in other cases, sometimes deferred adjudication probation fits because you don’t want to ruin someone’s life over a mistake.”
Kimble was clear that incarceration is the answer in certain cases.
“Repeat, violent offenders need to be incarcerated,” he said.
But Kimble does not envy the folks clad in austere black robes.
“They are important, and what individual judicial officials do is examine evidence, and it won’t make everybody happy,” he said.
Bell County courtroom
Judge Fancy Jezek presided over the 426th Judicial District courtroom in late August.
The courtroom was bright but with diffused light, its pastel color scheme adding a calming ambiance. The mahogany-colored pews were filled with an ever-changing cast of assistant district attorneys and defense attorneys preparing for their cases.
Manila envelopes and color-coded case files, envelopes within envelopes, were stacked skyward on attorneys’ desks.
The judge can take only one case at a time. Attorneys argue their cases. And then everyone waits.
Silence can be deafening in a courtroom, especially for those waiting to hear their fates that rest in the hands of a judge sifting quietly through case documents.
Within two hours, Jezek had sentenced one woman to almost a year in state jail after she violated the terms of a deferred adjudication probation for a drug charge and sentenced a handful of others to deferred adjudication probation. During the deferred adjudication process, defendants waive their rights to a trial, to remain silent and to an appeal.
Jezek made sure the intricacies of court procedure were understood. If a confession had been signed, then Jezek told defendants that is evidence against them and might be all that is needed for a finding of guilt.
Defendants were asked if they are mentally competent and if they were satisfied with their attorney.
Judges do not have to follow the sentencing recommendations of either side, even if it’s a plea agreement.
“I could assess you more punishment, but in that case, you could withdraw your plea agreement, and you would be entitled to another hearing,” Jezek said to one defendant.
Jezek accepted the woman’s guilty plea and passed her sentence.
“Good luck to you,” Jezek said.
Another man was in court on a string of burglary charges as well as a revocation of his straight probation. His attorney argued for mercy.
The state did not fight for a long jail sentence.
“The knee-jerk reaction would be to send this defendant to jail for as long as possible,” said Terry Clark, assistant district attorney. He recommended a year in state jail and probation on the other charges, along with drug treatment and restitution paid to the victims.
The defendant leaned forward, expectant, as Jezek considered the case.
She explained what deferred adjudication means.
“Do you want deferred adjudication probation?” she asked.
“Yes, ma’am,” the man said.
He was sentenced to five years of deferred adjudication probation, 90 days in the Bell County Jail, drug treatment and restitution payments of about $11,000.
Is deferred adjudication a useful form of punishment?
“Any time the court makes that assessment, it’s my hope and belief that it will be helpful,” Garza said. “Every court in the U.S. has the belief that this person will benefit from (deferred adjudication probation) by correcting their life and changing. If they don’t, the court can revoke the probation and the person is assessed time in prison.”
For this story, the Herald reached out with emails and phone calls to Jezek, Judge John Gauntt and Judge Paul LePak. All declined to comment.