Almost two years ago the nation was gripped by news that a 16 year old boy was sentenced to 10 years probation after being found not guilty intoxication manslaughter.  Ethan Couch didn’t kill just one person.  Ethan Couch didn’t kill two people.  Ethan Couch didn’t kill three people  Ethan Couch killed four innocent people and injured several others.  While the sentence alone – no prison time – was newsworthy on its own – what really caught the nation’s attention was that Ethan Couch was afflicted with a terrible case of “Affluenza.”

While the media largely attributed the use of this term to Ethan’s Fort Worth, Texas attorneys, I learned from one of them, Reagan Wynn, while I was at the Texas Trial Lawyer’s College, that the attorney’s never used the term.  In fact, they have never heard of the word, “Affluenza,” until one of their experts used it on the stand while testifying.  The theory of “Affluenza” was that Ethan Couch was so spoiled rotten, and that his parents set no limits for him, and never punished him, that he couldn’t appreciate right from wrong, or at the very least the consequences of his actions, which is almost an insanity defense.  It was an absolutely ridiculous term to use, even though it may be psychosocially accurate.

Ethan Couch was facing 2 to 20 years in prison on each charge of manslaughter, but he was sentenced only to 10 years of probation, which is the maximum term of probation in Texas, and some intensive mental health treatment.  The country was outraged!  For many, it was only a matter of time until he screwed up.

Completing probation or a deferred adjudication in Texas is very difficult.  You are essentially set up to fail when you being probation.  It is near impossible to successfully complete.  In case you don’t know the difference between probation and deferred adjudication, a defendant is put on probation after he is pled or found guilty.  A defendant is put on deferred adjudication if he pleads guilty, but the judge “withholds the finding of guilt.”  If the defendant successfully completes the terms of the deferred adjudication, then the case will be dismissed.  You basically have to do the same things on probation as deferred adjudication, the only difference being that if you are on probation in Texas, you have already been convicted of a crime, and if you are on deferred adjudication, you have not yet been convicted and your case will be dismissed if you successfully complete the deferred adjudication.  The other main difference between probation and deferred adjudication is that while a deferred can last up to ten years, you face the full range of punishment for the crime you plead guilty to.  For probation, you can only serve up to length you are sentenced; so for Ethan Couch, that is 10 years.

Why is Probation So Difficult?

Probation is so difficult because you have to be perfect, and it is hard to be perfect.  In addition to being perfect, you have to be lucky.  Generally, cannot pick up any new law violations – you can’t break the law – other than speeding tickets and other class C misdemeanors.  You have to check in with your probation officer when and where your probation officer tells you.  You have to pay court costs.  You have to pay fines.  You have to pay probation fees.  You have to attend classes such as Drug Offender Education Program (DOEP), therapy, and counseling.  You have to do your community service.  You have to stay clean – no test positive for drugs or alcohol – which is tough even if you are clean because the drugs tests most probation offices use are garbage and cause false positives.  Finally, you have to do or refrain from doing anything ordered by the court.

In this case, as in most, Ethan Couch was not supposed to be around drugs or alcohol.  However, a few days before he was supposed to meet with his probation officer, a video surfaces on social media of what appeared to be Ethan Couch at a party with alcohol and beer pong.  He looked to be having a good time.  I imagine it was very troubling for his attorneys to see the video.  Then again, it likely wasn’t the end of the world for Ethan Couch.  It likely didn’t mean 10 years in prison.

When there is an alleged probation violation in Texas, the probation officer will file a motion to revoke probation in the court where the defendant was convicted.  There will then be a warrant issued for his arrest and a court date will be set.  It is very important that you do not plead true to violating your probation.  Make the State prove that you violated your probation. If you wish to make the State prove it, as opposed to maybe entering a plea deal, your criminal defense attorney will request a date for the State’s Motion to Revoke Probation and the State will have to prove their case.  The burden of proof is on the State.  That State must prove by a preponderance of the evidence that the defendant violated the terms of probation, which means the government must prove that it is more likely than not you violated the terms of your probation.

In Ethan Couch’s case, it was not necessarily slam dunk for the state to prove he violated his probation.  Even if he was found to have violated his probation, the odds of him getting the full 10 were not as good as they are now, having run from the police.  Ethan Couch should have called his high price attorneys and let them know what type of shit he got himself into, and arranged to meet his probation officer as planned.  No doing so is so much worse, in the State’s mind, than the first potential violation of being a round alcohol, I bet.  This kid’s mother is clearly a terrible influence who refuses to accept responsibility of her own.  My bet is that she is going to federal prison, while her son goes to state prison.  The lesson, folks, is that probation is TOUGH.  You better be prepared to be perfect, and if you screw up, you better be prepared with an attorney.  Finally, don’t flee the country.   You will be caught.

Ethan Couch Captured In Mexico
Ethan Couch Captured In Mexico
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