The 12.45 ‘Judicial Confession’ Maneuver: Why Criminal Plea Records are Essential for Proving Civil Fraud and Fault in Texas Divorces
Memorandum Opinion by Justice Bassel, 02-25-00382-CR, February 05, 2026.
On appeal from Unknown
Synopsis
The Second Court of Appeals addressed whether a double jeopardy claim could be sustained when a defendant alleges that out-of-county offenses were “taken into account” during a prior adjudication of guilt under Texas Penal Code Section 12.45. The court determined that while such a claim may have legal merit to bar subsequent prosecution, the lack of a complete factual record—specifically the precise list of unadjudicated offenses considered by the first court—necessitated a remand for further evidentiary development.
Relevance to Family Law
In high-conflict Texas divorces involving “bad acts” such as credit card abuse, fraud on the community, or elder financial abuse, a spouse’s criminal plea record is often the “smoking gun” needed for a disproportionate share of the estate or a finding of fault. This case highlights a critical procedural trap: the Judgment itself rarely tells the whole story. For family litigators seeking to prove waste of community assets or fault-based grounds, the “Section 12.45 judicial confession” is a potent evidentiary tool, but as this opinion demonstrates, the civil practitioner must secure the underlying plea admonishments and the specific list of unadjudicated offenses to make the admission stick in a subsequent civil trial.
Case Summary
Fact Summary
Appellant Bessie Tekila Martin was on deferred adjudication in Tarrant County for credit card abuse. While on supervision, she allegedly committed five new offenses across Parker and Navarro Counties, including theft and credit card abuse against an elderly individual. Tarrant County moved to adjudicate her guilt. In the ensuing Tarrant County proceeding, Martin entered a plea agreement where she was sentenced under Texas Penal Code Section 12.44(a). Crucially, she signed a “judicial confession” requesting the court to take certain unadjudicated offenses into account pursuant to Texas Penal Code Section 12.45. Subsequently, a Parker County grand jury indicted her for the same conduct she believed had been “cleared” by the Tarrant County 12.45 maneuver. Martin filed a writ of habeas corpus in Parker County, arguing that because the Tarrant County court had already “punished” her for those acts by considering them during her adjudication, the Parker County prosecutions were barred by double jeopardy.
Issues Decided
The primary issue was whether the trial court erred in denying Martin’s application for a writ of habeas corpus without a factual record to determine if the Parker County offenses were, in fact, the specific “unadjudicated offenses” taken into account by the Tarrant County court under Section 12.45.
Rules Applied
The court relied on Texas Penal Code Section 12.45, which allows a defendant to admit guilt to an unadjudicated offense and have the court consider it during sentencing for a primary offense, which then bars subsequent prosecution for the admitted conduct. The court also examined the Double Jeopardy Clause, noting that while a 12.45 admission does not technically constitute “punishment” in the traditional sense, Texas law (specifically Ex parte Mikeal) treats it as a bar to further prosecution. Additionally, the court applied Texas Code of Criminal Procedure Article 11.08 regarding the development of a factual record in habeas proceedings.
Application
The Second Court of Appeals engaged in a meticulous review of the chronology of Martin’s Tarrant and Parker County cases. Justice Bassel noted that while Martin claimed she had been “punished” for the Parker County conduct in Tarrant County, the record before the appellate court was fragmented. The Tarrant County Judgment referenced an “amended motion to adjudicate” that was absent from the record. Furthermore, the cause numbers on the various Tarrant County documents did not align perfectly, and the specific list of offenses “taken into account” was not clearly articulated in the final judgment. The court reasoned that a legal theory—even a compelling one regarding double jeopardy—cannot be sustained on “assumed” facts. Without the specific Tarrant County record showing that the Parker County offenses were the ones Martin judicially confessed to, the court could not grant relief.
Holding
The court held that when a defendant raises a colorable claim that subsequent prosecutions are barred by a Section 12.45 agreement, the trial court must ensure the record contains the specific documentary evidence of the prior court’s actions.
Because the record was insufficient to verify which specific offenses were considered by the Tarrant County court, the appellate court remanded the case to the Parker County trial court to permit the development of a factual record.
Practical Application
For the family law practitioner, this case is a reminder that a “conviction” is not the only way to prove a spouse’s misconduct. If a spouse is involved in criminal litigation during a divorce, their counsel may utilize Section 12.45 to resolve multiple “bad acts” quietly. A Section 12.45 admission is a judicial confession. Even if the criminal case is dismissed or the conduct is “unadjudicated,” that confession is admissible in a divorce or SAPCR. However, you cannot simply subpoena the “Judgment.” You must specifically request the “Plea Admonishments” and any “12.45 List” attached to the plea.
Checklists
Securing the Criminal “Smoking Gun”
- Identify the Correct Records: Do not stop at the Judgment of Conviction or Order of Adjudication.
- Request the “Plea Packet”: Obtain the “Written Plea Admonishments” and the “Judicial Confession.”
- Check for 12.45 Attachments: Specifically look for a “List of Unadjudicated Offenses” signed by the spouse and their criminal counsel.
- Verify the Nexus: Ensure the dates and descriptions of the 12.45 offenses match the “waste” or “fraud” claims in your divorce petition.
Tactical Use in Divorce Litigation
- Fault Grounds: Use the 12.45 judicial confession to prove “cruelty” or “felony conviction” grounds for divorce without needing a full criminal trial record.
- Waste/Fraud on the Community: If the 12.45 admission involves financial crimes (like credit card abuse), use it as a basis for a Reconstituted Estate claim under Tex. Fam. Code § 7.009.
- Custody/Best Interest: Use 12.45 admissions to demonstrate a pattern of criminal conduct that, while not resulting in a conviction, indicates a threat to the child’s safety or the spouse’s lack of parental fitness.
Citation
Ex parte Martin, No. 02-25-00382-CR (Tex. App.—Fort Worth Feb. 5, 2026, no pet. h.) (mem. op.).
Full Opinion
Family Law Crossover
This ruling can be weaponized in a Texas divorce through the “Doctrine of Judicial Admissions.” When a spouse signs a 12.45 agreement in a criminal case, they are making a formal, written judicial confession to specific criminal acts to gain a benefit (usually a lighter sentence or the dismissal of other charges). In a subsequent civil trial for divorce, this confession is an admission by a party-opponent under TRE 801(e)(2).
While the Martin case focuses on using the 12.45 agreement as a shield against further prosecution, the family lawyer uses it as a sword. If a spouse is accused of wasting $50,000 of community funds on an extramarital affair or a drug habit, and they “cleared” those thefts in a criminal court via a 12.45 plea, they have effectively handed you the evidence for a summary judgment on the issue of fraud on the community. Martin teaches us that if the record is messy—if the cause numbers don’t match or the specific offenses aren’t listed—the evidence is useless. Always ensure your certified copies of the criminal record include the specific list of unadjudicated offenses “taken into account.”
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