Lashonda Rudolph v. State ( 2016 )

In The
Court of Appeals
Ninth District of Texas at Beaumont
_________________
NO. 09-14-00072-CR
_________________
LASHONDA RUDOLPH, Appellant
V.
THE STATE OF TEXAS, Appellee
__________________________________________________________________
On Appeal from the Criminal District Court
Jefferson County, Texas
Trial Cause No. 11-11650
__________________________________________________________________
MEMORANDUM OPINION
Appellant Lashonda Rudolph appeals from the revocation of her community
supervision and imposition of sentence for the offense of driving while intoxicated
with a child passenger. For the reasons set forth below, we dismiss the appeal as
moot.
I. Background
Pursuant to a plea bargain agreement, Rudolph pleaded guilty to the offense
of driving while intoxicated with a child passenger, a state jail felony. See Tex.
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Penal Code Ann. § 49.045 (West 2011). The trial court adjudicated Rudolph guilty
and assessed her punishment at two years in state jail and a fine of $500. In
accordance with the plea agreement, the court suspended Rudolph’s sentence and
placed her on community supervision for a period of five years.
Thereafter, the State filed a motion to revoke Rudolph’s community
supervision. On January 31, 2014, the trial court held a revocation hearing, during
which Rudolph pleaded “true” to eight violations of the conditions of her
community supervision. At the conclusion of the hearing, the trial court found that
Rudolph had violated the conditions of her community supervision, revoked her
community supervision, and imposed a sentence of confinement in state jail for a
period of two years. The trial court ordered Rudolph’s sentence to run
consecutively to two sentences that Rudolph had previously received for
convictions in Louisiana.
Rudolph appealed the revocation of her community supervision and
imposition of sentence, raising two issues. In her first issue, Rudolph challenged
the trial court’s order cumulating her sentence in this case with her two sentences
for prior convictions in Louisiana. Specifically, Rudolph argued: (1) that the
cumulation order that was orally pronounced by the trial court conflicted with the
cumulation order in the written judgment, (2) that the evidence was insufficient to
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support the trial court’s order cumulating her sentences, and (3) that the trial
court’s cumulation order was not sufficiently specific to allow the Texas
Department of Criminal Justice to identify the prior Louisiana sentences. In her
second issue, Rudolph argued that the judgment revoking her community
supervision failed to give her all of the jail-time credit to which she was entitled.
On April 28, 2016, we abated this appeal and remanded the case to the trial
court for clarification as to whether the prior convictions referenced in the
cumulation order contained in the written judgment were the same prior
convictions identified by the trial court in its oral pronouncement of sentence. See
Tex. R. App. P. 44.4. Following the abatement of the appeal, the trial court
conducted a hearing and entered a judgment nunc pro tunc to address the issues
raised in the abatement order. On May 26, 2016, this Court received a
supplemental record in connection with the proceedings that occurred in the trial
court while the appeal was abated. The supplemental record reflects that during the
hearing on the issues raised in the abatement order, Rudolph and her attorney
informed the trial court that Rudolph had already served her two-year sentence in
this case and had been released from state jail on July 21, 2015. The attorney for
the State likewise advised the trial court that it was his understanding that Rudolph
had already been released from state jail in connection with this case.
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By letter dated June 6, 2016, this Court requested supplemental briefing
from the parties regarding whether the issues raised in this appeal have become
moot because Rudolph has discharged her sentence in this case. Both parties
submitted supplemental briefing on the mootness issue. In its supplemental brief,
the State contends that the appeal is moot because Rudolph has fully discharged
the complained-of sentence. In response, Rudolph does not dispute that she has
fully discharged her sentence, but instead argues that an exception to the mootness
doctrine applies and that we should therefore reach the merits of her appeal. After
reviewing the briefs, the supplemental briefs, and the record in this case, we
conclude that the appeal is moot and should be dismissed.
II. Mootness During the Pendency of the Appeal
An appellate court may not decide a moot controversy. See Ex parte Flores,
130 S.W.3d 100, 104–05 (Tex. App.—El Paso 2003, pet. ref’d). “This prohibition
is rooted in the separation of powers doctrine in the Texas and United States
Constitutions that prohibits courts from rendering advisory opinions.” Nat’l
Collegiate Athletic Ass’n v. Jones, 1 S.W.3d 83, 86 (Tex. 1999). Generally, an
appeal becomes moot when there ceases to be a controversy between the litigating
parties. Flores, 130 S.W.3d 105. Further, an appeal becomes moot when the
judgment of the appellate court can no longer have an effect on an existing
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controversy or the rights of the parties. Jack v. State, 149 S.W.3d 119, 123 n.10
(Tex. Crim. App. 2004); State v. Garza, 774 S.W.2d 724, 727 (Tex. App.—Corpus
Christi 1989, pet. ref’d).
A time-credit complaint may be rendered moot when an inmate is
completely discharged from confinement, control, or supervision. Ex parte
Canada, 754 S.W.2d 660, 663 (Tex. Crim. App. 1988); see also Campbell v. State,
Nos. 03-11-00658-CR, 03-11-00659-CR, 2013 WL 6805585, *1 (Tex. App.—
Austin Dec. 20, 2013, no pet.) (mem. op., not designated for publication); Kennedy
v. State, No. 09-00-309-CR, 2001 WL 995355, *1 (Tex. App.—Beaumont Aug.
29, 2001, pet. ref’d) (per curiam) (not designated for publication). Similarly, a
complaint that the trial court erred in cumulating a defendant’s sentence typically
becomes moot when the defendant fully discharges the complained-of sentence.
Stout v. State, 908 S.W.2d 552, 553 (Tex. App.—Fort Worth 1995, no pet.).
Rudolph’s complaints on appeal pertain only to the trial court’s alleged
denial of jail-time credit and its order cumulating her sentence. Because it is
undisputed that Rudolph fully discharged her sentence in this case, Rudolph’s
appeal is moot unless one of the two recognized exceptions to the mootness
doctrine—namely, (1) the “collateral consequences” exception, or (2) the “capable
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of repetition, yet evading review” exception—applies. See Flores, 130 S.W.3d at
105; see also Canada, 754 S.W.2d at 663.
A. The “Collateral Consequences” Exception
The first exception to the mootness doctrine is the “collateral consequences”
exception. Flores, 130 S.W.3d at 105. This exception applies when a prejudicial
event occurs, and the effects of that event “continue[] to stigmatize helpless or
hated individuals long after the unconstitutional judgment ha[s] ceased to
operate.’” Id. (quoting In re Salgado, 53 S.W.3d 752, 757 (Tex. App.—El Paso
2001, no pet.)). The collateral consequences exception has been applied by federal
courts in criminal cases in which the adverse collateral consequences of a criminal
conviction are viewed as preserving the existence of the dispute even though the
convicted person has completely served the sentence imposed. See, e.g., Sibron v.
New York, 392 U.S. 40, 55–58 (1968); United States v. Villanueva-Diaz, 634 F.3d
844, 848–49 (5th Cir. 2011); Escobedo v. Estelle, 650 F.2d 70, 71 (5th Cir. 1981).
This exception has also been applied to preserve the existence of a time-credit
complaint, even though the defendant has completed his or her sentence, when
“direct or collateral legal consequences may flow from the wrongful denial of
earned time credit.” Canada, 754 S.W.2d at 663–64 (concluding that denial of
earned time credit had adverse collateral consequences on defendant, despite the
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fact that the defendant had discharged the complained-of sentence, where the
defendant was serving a second sentence that had been stacked onto the
complained-of sentence, and the denial of earned time credit on the complained-of
sentence would serve to delay the defendant’s eventual discharge date on the
second sentence).
Rudolph argues that this appeal is not moot, despite the fact that she has
discharged her sentence in this case, because the State has failed to show “that
there is no possibility that any collateral legal consequences will be imposed” as a
result of the trial court’s denial of jail-time credit. 1 Rudolph relies on Sibron to
argue that the State had the burden to make such a showing. In Sibron, the
Supreme Court addressed whether appeals by two defendants challenging their
criminal convictions became moot when the defendants fully discharged their
sentences for those convictions during the pendency of their appeals. 392 U.S. at
50–58. In concluding that the appeals were not moot, the Court explained that
when a defendant challenges his or her conviction, collateral legal consequences
1
In her supplemental briefing, Rudolph addresses only the mootness of her
complaint regarding the trial court’s alleged denial of jail-time credit. She does not
address whether her complaint regarding the trial court’s cumulation order has
become moot. However, because Rudolph’s completion of her sentence in this case
potentially moots both of the issues raised on appeal, we analyze whether the
mootness doctrine and its exceptions apply to both of Rudolph’s complaints on
appeal.
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resulting from the conviction are presumed to exist. Id. at 55–56. According to the
Court, this presumption is justified by “the obvious fact of life that most criminal
convictions do in fact entail adverse collateral legal consequences.” Id. at 55. The
Court further explained that this presumption can only be overcome by a showing
“that there is no possibility that any collateral legal consequences will be imposed
on the basis of the challenged conviction.” Id. at 57.
Unlike the defendants in Sibron, Rudolph does not challenge her conviction
on appeal. Instead, she complains only about the trial court’s purported denial of
jail-time credit and its order cumulating her sentence. See Canada, 754 S.W.2d at
663 (noting that defendant’s time-credit complaint did not challenge his
conviction, but instead challenged “the time necessary to fulfill his sentence”);
Young v. State, 579 S.W.2d 10, 10 (Tex. Crim. App. [Panel Op.] 1979) (concluding
that a defective cumulation order has no effect on the validity of a defendant’s
conviction). When a criminal defendant does not challenge his or her conviction on
appeal, the presumption of collateral consequences recognized in Sibron does not
apply. See United States v. Juvenile Male, 564 U.S. 932, 936 (2011) (per curiam)
(concluding that when a defendant challenges only an expired sentence, as opposed
to his or her conviction, Sibron’s presumption of collateral consequences does not
apply); Spencer v. Kemna, 523 U.S. 1, 14 (1998) (concluding that presumption of
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collateral consequences did not apply to prisoner’s challenge to the revocation of
his parole); Lane v. Williams, 455 U.S. 624, 631–33 (1982) (concluding that
Sibron’s presumption of collateral consequences did not apply where habeas
petitioners attacked only their sentences that had since expired, and not their
convictions); see also Russell v. Cockrell, No. Civ.A.4:02-CV-570-Y, 2002 WL
32332222, *2 (N.D. Tex. Dec. 13, 2002) (concluding that presumption of collateral
consequences does not apply to a complaint regarding the alleged denial of time
credit towards the completion of the defendant’s sentence). Under such
circumstances, the defendant bears the burden of identifying some ongoing
collateral consequence that is traceable to the alleged error and likely to be
redressed by a favorable judicial decision. See Juvenile Male, 564 U.S. at 936
(quoting Spencer, 523 U.S. at 7, 14).
Rudolph has not identified any direct or collateral legal consequences that
she may suffer now or in the future as a result of the trial court’s alleged denial of
jail-time credit or as a result of the trial court’s allegedly erroneous cumulation
order. Further, nothing in the record reveals the existence of any direct or collateral
legal consequences that could potentially flow from the trial court’s alleged denial
of jail-time credit or its cumulation order, considering the undisputed fact that
Rudolph has fully discharged the complained-of sentence in this case.
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Accordingly, we conclude that the collateral consequences exception to the
mootness doctrine does not apply in this case. See Canada, 754 S.W.2d at 663.
B. The “Capable of Repetition, yet Evading Review” Exception
The second exception to the mootness doctrine is when a claim is “‘capable
of repetition, yet evading review.’” Pharris v. State, 165 S.W.3d 681, 687–88
(Tex. Crim. App. 2005). In the absence of a class action, this exception is “‘limited
to the situation where two elements combine: 1) the challenged action was in its
duration too short to be fully litigated prior to its cessation or expiration, and 2)
there was a reasonable expectation that the same complaining party would be
subjected to the same action again.’” Ex parte Bohannan, 350 S.W.3d 116, 119
(Tex. Crim. App. 2011) (quoting Weinstein v. Bradford, 423 U.S. 147, 148–49
(1975) (per curiam)).
As noted, Rudolph has not appealed her conviction, and it is undisputed that
she has fully discharged her sentence in this case. Therefore, to conclude that the
“capable of repetition, yet evading review” exception applies, we would essentially
have to conclude, among other things, that there is a “reasonable expectation” that
Rudolph will again commit a criminal offense and that she will ultimately be
convicted and sentenced for that offense. See Bohannan, 350 S.W.3d at 119.
However, in determining the applicability of the “capable of repetition, yet evading
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review” exception, courts are generally “‘unwilling to assume that the party
seeking relief will repeat the type of misconduct that would once again place him
or her at risk of that injury.’” Ex parte Nelson, 815 S.W.2d 737, 739 (Tex. Crim.
App. 1991) (quoting Honig v. Doe, 484 U.S. 305, 320 (1988)) (refusing to assume
that a prisoner would violate parole conditions in the future); accord Bohannan,
350 S.W.3d at 119–20 (refusing to assume that habeas applicant would “again be
held in custody facing the prospect of a preliminary hearing to determine whether
there is probable cause to believe he violated a condition of his parole”); Williams
v. Lara, 52 S.W.3d 171, 184–85 (Tex. 2001) (refusing to assume that complaining
parties would commit a crime in the future so as to again be incarcerated in the
correctional facility with the complained-of practices and explaining that the
complainants were “required by law to prevent their own recidivism”). Nothing in
the record indicates that any criminal charges are currently pending or are expected
to be filed against Rudolph, and Rudolph does not suggest that she anticipates
violating some criminal law in the future. Moreover, even assuming that we could
reasonably expect Rudolph to commit another criminal offense in the future and
that she would be convicted and sentenced for that offense, we cannot say with any
reasonable degree of certainty: (1) that Rudolph would be entitled to receive, yet
be denied, jail-time credit towards her sentence for that offense, or (2) that the trial
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court could or would enter an order cumulating her sentence in that case with
another existing sentence. As such, the risk that Rudolph will again be subjected to
the alleged actions of which she complains is purely speculative. We therefore
conclude that the “capable of repetition, yet evading review” exception does not
apply.
Because neither of the exceptions to the mootness doctrine apply in this
case, we conclude that Rudolph’s appeal is moot. We therefore dismiss the appeal.
See Tex. R. App. P. 43.2(f).
APPEAL DISMISSED.
_____________________________
CHARLES KREGER
Justice
Submitted on June 30, 2014
Opinion Delivered August 10, 2016
Do not publish
Before Kreger, Horton, and Johnson, JJ.
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