Reynolds, Lawrence v. State ( 2013 )

MODIFY and AFFIRM; and Opinion Filed December 11, 2013.
S In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-11-00947-CR
No. 05-11-00948-CR
LAWRENCE REYNOLDS, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 194th Judicial District Court
Dallas County, Texas
Trial Court Cause Nos. F07-38808-M, F07-38809-M
OPINION
Before Justices Bridges, Fillmore, and Lewis
Opinion by Justice Lewis
Appellant Lawrence Reynolds appeals the revocation of his community supervision and
imposition of a nine-year prison sentence. Reynolds also contends that he is entitled to
additional back-time credit and that the trial court erroneously imposed a $300 fine in one of its
judgments. We modify the trial court’s judgments and, as modified, affirm them.
Background
On July 13, 2007, appellant pleaded guilty to two counts of burglary of a habitation.
Pursuant to a plea agreement, the trial court assessed fines in each case of $300, deferred
adjudication of appellant’s guilt, and placed him on community supervision for a period of seven
years. Later that same year, the State moved to revoke his probation and to adjudicate guilt;
appellant pleaded true to the State’s allegations of probation violations. In judgments dated
October 29, 2007, the trial court adjudicated appellant’s guilt and—according to the terms of a
new plea agreement—sentenced him to ten years’ imprisonment in each case. Immediately
above the judge’s signature on both judgments is the following notice:
Furthermore, the following special findings or orders apply:
DEFENDANT SENTENCE[D] TO SHOCK PROBATION FOR 180 DAYS.
Appellant was incarcerated until March 5, 2008. On that date, the trial court’s docket sheet
indicates appellant’s sentence was suspended and he was placed on community supervision for a
term of seven years. The State filed a motion to revoke this community supervision in February
2009, and appellant pleaded true to the alleged violations, but the trial court continued his
probation. The State filed another motion to revoke on April 29, 2011, and again appellant
pleaded true to the alleged violations. This time, the trial court did revoke appellant’s
community supervision. In judgments dated June 16, 2011, the court assessed his punishment at
nine years’ imprisonment in each of the two cases and a fine of $300 in cause number F-
0738809-M.
Revocation of Community Supervision
In his first issue, appellant contends the trial court erred by revoking his community
supervision because the record does not contain a judgment or order suspending the ten-year
sentence of imprisonment that was imposed when his guilt was adjudicated in 2007, and placing
him on community supervision. Appellant argues that article 42.01 of the code of criminal
procedure requires such a judgment or order. According to appellant, because he was not
properly placed on community supervision, the State could not effectively revoke him from
community supervision. Our review of an order revoking community supervision is limited to
abuse of the trial court’s discretion. Rickels v. State, 202 S.W.3d 759, 763 (Tex. Crim. App.
2006).
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Appellant does not cite authority for his argument that a separate judgment or order must
be signed to effectuate suspension of his sentence. The trial court’s judgments of October 29,
2007, specifically placed appellant on shock probation in a “special order” that was part of both
judgments. When a trial court grants shock probation, the defendant serves a portion of his
sentence, and the trial court—by granting probation after this “shock”—suspends the further
execution of the defendant’s sentence. See Amado v. State, 983 S.W.2d 330, 331–32 (Tex.
App.—Houston [1st Dist.] 1998, pet. ref’d).
Moreover, the record establishes that the trial court suspended appellant’s sentence and
placed him on probation on March 5, 2008. Docket notations on that date, in both cases, state
appellant’s sentence was suspended and he was placed on community supervision for seven
years. In February 2009, the State initiated proceedings to revoke this probation; appellant
participated in those proceedings and pleaded true to the alleged violations. Both the 2009
motion to revoke and the 2011 motion to revoke recite that appellant was legally placed on
community supervision for a period of seven years on March 5, 2008. In the 2011 revocation
proceeding, appellant signed a judicial confession stating he was placed on community
supervision for seven years on March 5, 2008. And at the hearing on the State’s 2011 motion to
revoke, the following exchange took place:
THE COURT: Mr. Reynolds, on July 13th, 2007, you entered into a plea of
guilty for the two offenses of burglary of a habitation. You were placed on seven
years deferred probation and assessed a fine in each case in the amount of $300.
Do you recall that taking place?
THE DEFENDANT: Yes, sir.
THE COURT: Subsequent to that date on October 29th, you came before this
Court on a motion to proceed. You were sentenced to ten years confinement in the
Institutional Division of the Texas Department of Criminal Justice in each case
and on March 5th, 2008, that sentence was suspended and you were placed on ten
years confinement in the Institutional Division of the Texas Department of
Criminal Justice, but you were given a seven-year probation in each case.
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Do you recall that taking place?
THE DEFENDANT: Yes, sir, I do.
The trial court addressed the following remarks to appellant:
Mr. Reynolds, back in October 2007 I sent you to the pen for ten years to give
you an idea what it would be like if you were down there permanently. I brought
you back on probation on March 2008 as we discussed earlier and gave you
another probation. It was with my hopes when I did that, that you would finally
wake up and see that this Court takes probation seriously as well.
We conclude all parties understood and acted on the understanding that appellant’s sentence had
been suspended and he had been placed on probation on March 5, 2008.
Appellant relies on cases that vacate the revocation of shock probation as well as the
order placing the defendant on shock probation. See, e.g., Tamez v. State, 620 S.W.2d 586 (Tex.
Crim. App. 1981); Rice v. State, 971 S.W.2d 533 (Tex. App.—Dallas 1997, no writ). In each of
those cases, the trial court’s attempt to place the defendant on shock probation was not timely.
Because the trial court lacked jurisdiction to place the defendant on shock probation when it did,
both orders—the placement order and the revocation order—were void. See Tamez, 620 S.W.2d
at 587–88; Rice, 971 S.W.2d at 535–36. In this case, however, the trial court properly placed
appellant on community service within 180 days of the date the execution of his sentence began.
See TEX. CODE CRIM. PROC. ANN. Art. 42.12 § 6(a) (West Supp. 2013). Appellant is not entitled
to have his community supervision orders vacated for lack of jurisdiction.
Finally, we conclude that even if the trial court did err in its method of placing appellant
on shock probation, appellant is not now entitled to challenge the court’s order as void. “Even if
the court had erroneously granted appellant shock probation, appellant may not complain of
defects in the court’s leniency after accepting the benefit of that leniency.” Henderson v. State,
758 S.W.2d 694, 696 (Tex. App.—Austin 1988, pet. dism’d); see also Tamez, 620 S.W.2d at
590.
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We find no abuse of discretion in the trial court’s revocation of appellant’s community
supervision. We overrule his first issue.
Credit for Back Time
In his second issue, appellant contends the trial court did not credit all of the back time to
which he was entitled. We have concluded the trial court did not err in revoking appellant’s
shock probation; thus, we reject appellant’s request for back-time credit during that probation
period, which he characterizes as “erroneous release.” However, appellant contends alternatively
that he was not given back-time credit for all of the “shock” time he served following
adjudication of his guilt. The trial court’s judgments award back time for the following periods
of time:
04/12/2007 to 07/13/2007,
10/18/2007 to 10/30/2007,
02/19/2008 to 03/07/2008,
03/03/2009 to 04/09/2009, and
04/28/2011 to 06/16/2011.
The judgments adjudicating appellant’s guilt indicate his sentence of ten years’ confinement was
imposed in each case on October 29, 2007. The record establishes appellant was brought to
court and his sentence was suspended on March 5, 2008. We conclude appellant was entitled to
back-time credit for this entire period of incarceration. See Padilla v. State, 697 S.W.2d 522,
524 (Tex. App.—El Paso 1985, no pet.).
Accordingly, we sustain appellant’s second issue in part, and we modify the judgments in
both cases to award back time for the following periods of time:
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04/12/2007 to 07/13/2007,
10/18/2007 to 03/07/2008,
03/03/2009 to 04/09/2009, and
04/28/2011 to 06/16/2011.
Imposition of Fine
In his third issue, appellant argues the trial court improperly imposed a fine when it
revoked his community supervision in trial court cause number F07-38809-M. The State argues
the imposition of that fine is correct and that an equivalent fine should have been imposed in
cause number F07-38808-M.
In the trial court’s Orders of Deferred Adjudication, it imposed a $300 fine in each case.
In the Judgments Adjudicating Guilt, the trial court did not impose fines in either case: the
adjudicating judgments state the terms of the plea bargain (“10 YEARS PENITENTIARY FINE
$0.00”) and the relevant portion of the sentence (“Fine: $N/A”). 1 And when the trial court
sentenced appellant during the revocation proceedings, it did not impose a fine in either case.
Article 42.12 speaks specifically to sentencing after revocation:
If community supervision is revoked after a hearing under Section 21 of this
article, the judge may proceed to dispose of the case as if there had been no
community supervision, or if the judge determines that the best interests of
society and the defendant would be served by a shorter term of confinement,
reduce the term of confinement originally assessed to any term of confinement not
less than the minimum prescribed for the offense of which the defendant was
convicted.
TEX. CRIM. PROC. CODE ANN. art. 42.12, §23(a). Although this statute expressly permits changes
to the length of a defendant’s “term of confinement” from that originally assessed, it makes no
provision for changes to the amount of any fine imposed in the original sentence. See id.
1
We reject the State’s argument that the boilerplate language ordering appellant “to pay all fines, court costs, and restitution as indicated
above” refers to the recitation of a fine imposed at deferral, rather than to the recitation in that very judgment that no fine would be imposed upon
adjudication of guilt.
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Instead, the statute contemplates that to the extent any fine is involved, the trial court is to
“dispose of the case as if there had been no community supervision.” Id.; see also Amado, 983
S.W.2d at 332 (“It follows that revocation of shock probation simply reinstates the execution of
the imposed sentence.”). If there had been no community supervision in this case, the sentence
imposed would have been ten years’ confinement with no fine in either case. The trial court was
authorized to reduce that term of confinement to nine years upon revocation, but it was not
authorized to add a fine that was not part of the original sentence.
The State argues the fines pronounced in the trial court’s orders deferring adjudication
should be carried forward in this case. We disagree. “[W]hen an accused receives deferred
adjudication, no sentence is imposed.” Taylor v. State, 131 S.W.3d 497, 502 (Tex. Crim. App.
2004). When the trial court subsequently adjudicates guilt, its order sets aside the order
deferring adjudication and any fine imposed by the deferral order. See id.
We sustain appellant’s third issue. We modify the trial court’s June 16, 2011 Judgment
Revoking Community Supervision in cause number F-0738809-M to delete the $300 fine
imposed in that judgment.
Conclusion
As modified, we affirm the judgments of the trial court.
/David Lewis/
DAVID LEWIS
JUSTICE
Do Not Publish
TEX. R. APP. P. 47
110947F.U05
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S
Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
LAWRENCE REYNOLDS, Appellant On Appeal from the 194th Judicial District
Court, Dallas County, Texas
No. 05-11-00947-CR V. Trial Court Cause No. F07-38808-M.
Opinion delivered by Justice Lewis.
THE STATE OF TEXAS, Appellee Justices Bridges and Fillmore participating.
Based on the Court’s opinion of this date, the judgment of the trial court is MODIFIED
as follows:
Appellant Lawrence Reynolds is awarded back time for the following periods
of time:
04/12/2007 to 07/13/2007,
10/18/2007 to 03/07/2008,
03/03/2009 to 04/09/2009, and
04/28/2011 to 06/16/2011.
As MODIFIED, the judgment is AFFIRMED.
Judgment entered this 11th day of December, 2013.
/David Lewis/
DAVID LEWIS
JUSTICE
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S
Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
LAWRENCE REYNOLDS, Appellant On Appeal from the 194th Judicial District
Court, Dallas County, Texas
No. 05-11-00948-CR V. Trial Court Cause No. F07-38809-M.
Opinion delivered by Justice Lewis.
THE STATE OF TEXAS, Appellee Justices Bridges and Fillmore participating.
Based on the Court’s opinion of this date, the judgment of the trial court is MODIFIED
as follows:
(1) Appellant Lawrence Reynolds is awarded back time for the following
periods of time:
04/12/2007 to 07/13/2007,
10/18/2007 to 03/07/2008,
03/03/2009 to 04/09/2009, and
04/28/2011 to 06/16/2011.
(2) The $300 fine imposed in this case is deleted.
As MODIFIED, the judgment is AFFIRMED.
Judgment entered this 11th day of December, 2013.
/David Lewis/
DAVID LEWIS
JUSTICE
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