Simmie James Colson III v. State ( 2015 )

ACCEPTED
01-14-01020-CR
FIRST COURT OF APPEALS
HOUSTON, TEXAS
7/29/2015 8:31:20 AM
No. 01-14-01020-CR CHRISTOPHER PRINE
CLERK
In the
Court of Appeals
For the FILED IN
1st COURT OF APPEALS
First District of Texas HOUSTON, TEXAS
At Houston 7/29/2015 8:31:20 AM
CHRISTOPHER A. PRINE
Clerk

No. 991804
In the 185th District
Of Harris County, Texas

SIMMIE JAMES COLSON III
Appellant
V.
THE STATE OF TEXAS
Appellee

STATE’S APPELLATE BRIEF

DEVON ANDERSON
District Attorney
Harris County, Texas
SARAH BRUCHMILLER
Assistant District Attorney
Harris County, Texas
KIMBERLY APERAUCH STELTER
Harris County Criminal Justice Center
1201 Franklin, Suite 600
Houston, Texas 77002
Telephone: 713.755.5826
stelter_kimberly@dao.hctx.net
State Bar Number: 19141400
ORAL ARGUMENT REQUESTED NOT REQUESTED
STATEMENT REGARDING ORAL ARGUMENT
State believes that the matters raised by the appellant are well-settled,
that the briefs in this case adequately apprise this Court of the issues and the
law. Therefore, the State does not request oral argument.
IDENTIFICATION OF THE PARTIES
Pursuant to Texas Rule of Appellate Procedure 38.2(a)(1)(A), a
complete list of the names of all interested parties is provided below.
Counsel for the State:
Devon Anderson  District Attorney of Harris County
Kimberly Aperauch Stelter  Assistant District Attorney on
appeal
Sarah Bruchmiller  Assistant District Attorney at trial
Appellant or criminal defendant:
Simmie James Colson, III—Defendant
Counsel for Appellant:
Morris Overstreet, Winston Cochran, Jr.  Counsel on appeal
Morris Overstreet  defense counsel at trial
Trial Judge:
Honorable Susan Brown Judge Presiding
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TABLE OF CONTENTS
STATEMENT REGARDING ORAL ARGUMENT ................................................................... i
IDENTIFICATION OF THE PARTIES ........................................................................................ i
TABLE OF CONTENTS ................................................................................................................. ii
INDEX OF AUTHORITIES .......................................................................................................... iii
STATEMENT OF THE CASE....................................................................................................... 1
STATEMENT OF FACTS .............................................................................................................. 1
SUMMARY OF THE ARGUMENT ............................................................................................. 2
REPLY TO APPELLANT’S SOLE ISSUE PRESENTED....................................................... 3
Appellant has failed to establish that the trial court
misunderstood the range of punishment in this case. While
the trial court judge had a range of sentencing options
available, she correctly realized that she could not continue
appellant on community supervision without an adjudication
of guilt.
PRAYER ...........................................................................................................................................15
CERTIFICATE OF SERVICE ......................................................................................................16
CERTIFICATE OF COMPLIANCE ...........................................................................................17
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INDEX OF AUTHORITIES
CASES
Arrieta v. State,
719 S.W.2d 393 (Tex. App.—
Fort Worth 1986, pet. ref’d) .................................................................................... 9, 10
Cordova v. State,
2011 WL 3925765, at *3 (Tex. App. –
Amarillo 2011, pet. ref’d) (opin. not designated for publication) ........................... 12
Ex parte Donaldson,
86 S.W.3d 231 (Tex. Crim. App. 2002) ....................................................................... 13
Ex parte Lewis,
934 S.W.2d 801 (Tex. App. –
Houston [1 Dist.]1996, no pet.)..................................................................................... 9
Ex parte Moss, 446 S.W.3d 786, 788–90 (Tex. Crim. App. 2014) ................................. 12
Garcia v. State,
387 S .W.3d 20, 23-24 (Tex. Crim. App. 2012) .......................................................... 11
Garrett v. State,
377 S.W.3d 697 (Tex. Crim. App. 2012). ..................................................................... 9
Howell v. State,
754 S.W.2d 396 (Tex. App.—
Corpus Christi 1988, no pet.) ........................................................................................ 9
Hunter v. State,
640 S.W.2d at 656 (Tex. App.—
El Paso 1982, no pet.) .................................................................................................. 10
Nicklas v. State,
530 S.W.2d 537 (Tex. Crim. App. 1975) ..................................................................... 10
Slaughter v. State,
110 S.W.3d 500 (Tex. App. –
Waco 2003, pet. ref’d).................................................................................................. 11
Whitson v. State,
429 S.W.3d 632 (Tex. Crim. App. 2014) ..................................................................... 13
STATUTES
TEX. CODE CRIM. PROC. art. 42.12 § 22(c) ............................................................................ 9
iii
TEX. CODE CRIM. PROC. art. 42.12 § 5(a) .............................................................................. 9
TEX. CODE CRIM. PROC. art. 42.12, § 5(h) ........................................................................... 12
TEX. PENAL CODE § 12.35 ................................................................................................... 13
RULES
TEX. R. APP. P. 38.2(a)(1)(A) ................................................................................................ i
iv
TO THE HONORABLE COURT OF APPEALS:
STATEMENT OF THE CASE
The appellant was charged by indictment with theft by check (CR-5).1
He pled guilty and pursuant to a plea bargain agreement, adjudication of his
guilt was deferred and he was placed on community supervision for a period
of two years (CR-12). The State subsequently filed a motion to adjudicate
guilt (CR-31-32). Appellant stipulated true to the allegations in the motion to
adjudicate guilt (CR-41). The court found the allegations to be true, found
appellant guilty of theft by check and assessed punishment at seven months in
the State Jail division of the Texas Department of Criminal Justice (CR-41).

STATEMENT OF FACTS
The record does not contain any details as to how appellant committed
the offense of theft by check. The only record is the hearing on the State’s
motion to adjudicate guilt. While seven witnesses testified at this hearing,
their testimony is not relevant to disposition of this case. Instead, appellant
1
“CR” refers to the clerk’s record and the number following the dash is the page number. “RR”
refers to the sole volume of the court reporter’s record, and the number following the dash is the
page within that volume.
bases his point of error on comments made by defense counsel and the court
during the hearing. These comments are best discussed in the response to
appellant’s sole point of error.

SUMMARY OF THE ARGUMENT
Appellant’s contention that the trial court judge did not understand the
sentencing alternatives available to her is not supported by the record. The
judge correctly understood that she could not defer an adjudication of guilt
and extend appellant’s community supervision, as that term of community
supervision had already expired. The trial court only had jurisdiction to rule
on the State’s motion to adjudicate guilt and sentence appellant subsequent
to a finding of guilt.

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REPLY TO APPELLANT’S SOLE ISSUE PRESENTED
Appellant has failed to establish that the trial court
misunderstood the range of punishment in this case. While
the trial court judge had a range of sentencing options
available, she correctly realized that she could not continue
appellant on community supervision without an adjudication
of guilt.
Appellant claims that the trial court did not consider all the alternative
dispositions of appellant’s case. Specifically, it is appellant’s contention that
the trial court judge “did not believe that she had any discretion to take any
action other than sentencing [appellant] to at least 180 days of confinement in
a state jail.” (appellant’s brief, p. 17). Appellant asserts that the trial court had
other options for sentencing appellant, and lists several in his brief.
The State agrees that the trial court had options for sentencing
appellant, although appellant is incorrect as to what those options were.
Instead, it appears that the trial court judge understood the law in this area,
and merely indicated that she did not have discretion to do what appellate
counsel suggests she could have done – continue appellant on community
supervision without an adjudication of guilt.
3
A. The pre-hearing procedural history of this case.
The timeline in this case is important in understanding this limitation
on the trial court’s sentencing choices. Appellant was charged with and pled
guilty to the offense of theft by check on October 5, 2004 (RR-11). The court,
pursuant to a plea bargain agreement, deferred adjudication of guilt and
sentenced appellant to two years of community supervision, subject to several
conditions and terms (CR-12-14).
On June 20, 2006, within the two year period of community supervision,
the State filed a motion to adjudicate guilt, alleging that appellant had violated
several terms and conditions of his community supervision, including failure
to report to his Community Supervision Officer, failure to present written
verification of employment, failure to participate in a community service
program, and failure to pay fees, fines, and restitution (CR-31-32). A capias
was issued at the same time (CR-33). Appellant was arrested on that capias on
October 21, 2014 (CR-33).
B. Appellant’s hearing on the State’s motion to adjudicate guilt
The trial court held a hearing on the State’s motion to adjudicate guilt
on December 11, 2014 (CR-38). Appellant stipulated that he had previously
pleaded guilty to the offense, that the allegations in the motion to adjudicate
were true, and that the prosecutor would recommend that he be adjudicated
4
guilty (CR-38). He also stipulated that there was no agreed recommendation
for punishment, and that he reserved the right to appeal (CR-38).
Defense counsel put on seven witnesses at the motion to adjudicate
hearing, including appellant (RR-3). Some of these witnesses testified to
appellant’s difficulties at the time of his original plea in an attempt to explain
why he did not complete the terms of his community supervision (CR-21, 33).
Others testified to the good appellant had done in the community since, and
how his having to serve time in jail would adversely affect those in his family
(CR-14, 23).
Defense counsel asked several of these witnesses why they thought the
court should not adjudicate appellant guilty. For example, defense counsel
asked appellant’s daughter “why you would ask the judge not to adjudicate
your father and send him to jail for 180 days?” (RR-8). Appellant’s daughter
then gave an emotional plea asking that appellant not be adjudicated guilty
because of the personal impact it would have on her family (RR-8).
Defense counsel also asked the second witness, Ms. Jones, to tell the
court why she should “do something other” than adjudicate appellant guilty
(RR-14). It is here that the judge interjected that she did not have “discretion
in the matter, based on the situation and the law.” (RR-14). The context of that
statement is provided here:
5
Q. (BY MR. OVERSTREET) (defense counsel): I explained to
you what Mr. Colson is facing if the judge adjudicates him
guilty, a minimum of 180 days. What would you say to the
judge as to why she should exercise her discretion and do
something other than adjudicate him guilty and sentence
him to –
THE COURT: Please don’t have these folks think that I have
any discretion at all in this matter.
MR. OVERSTREET: Okay.
THE COURT: So, I don’t want them to leave here today
believing the court has some discretion in the matter, based
on the situation and the law.
MR. OVERSTREET: Okay.
Q. (BY MR. OVERSTREET): Okay. Why would you ask the
Court not to send him to jail for 180 days?
….
(RR-14).
Finally, defense counsel called appellant himself as a witness, and
asked him twice about why the judge should be lenient with him:
Q. Okay, Why shouldn’t the judge just adjudicate you guilty
and just send you to jail for two years?
……………
Q: And last question: Why shouldn’t the judge just send you
to jail?
(RR-48, 51). Appellant’s responses were that he had turned his life around
and was helping people, including his elderly mother and “this kid that I’m
paying child support for.” (RR-48, 51).
6
At the conclusion of the hearing, the trial court asked for closing
argument (RR-58). Defense counsel maintained that all the witnesses who had
come forward to testify on appellant’s behalf “provide a reason why the Court
can do something other than adjudicate him guilty. And because if he’s
adjudicated guilty, of course, the minimum, 180 days, kicks in.” (RR-58).
Defense counsel then noted that he had done some research during the lunch
hour and had discovered Garrett v. State 2 which held that trial courts could
extend deferred adjudication community supervision to a maximum of 10
years, the same as other felony offenses (RR-59).
The judge responded that she was well aware of Garrett, but that
Garrett did not apply when a defendant’s period of probation had already
terminated. (RR-59) Defense counsel then reiterated that he was asking the
trial court to exercise her discretion and “not make a decision today to
adjudicate Mr. Colson guilty, [and] maybe give us a little bit more time to
research to see if the probation can be extended” (RR-61).
Next the court heard argument from the State, which urged the court to
sentence appellant “somewhere in the range of 1 year to 18 months.” (RR-62).
At the conclusion of argument the court found the allegations in the motion to
2 Garrett v. State, 377 S.W.3d 697 (Tex. Crim. App. 2012).
7
adjudicate to be true, found appellant guilty, and assessed his punishment at
seven months in the State Jail division of the Texas Department of Criminal
Justice (CR-41, RR-63).
C. The trial court was correct in stating that it did not have
discretion to extend community supervision without an
adjudication of guilt.
Appellant claims the trial court judge was under an erroneous legal
assumption as to available sentencing alternatives, and thought she did not
have any other option but to sentence appellant to at least 180 days
confinement in the state jail (Appellant’s brief, p. 17). The court, however,
never said that 180 days was the minimum sentence it could give or that it did
not have other options. Instead, the court indicated that it did not have the
discretion to defer adjudication and extend appellant’s term of deferred
adjudication community supervision, as suggested by defense counsel during
the hearing, because the original term of community supervision had already
expired (RR-59). This is a correct statement of the law.
Appellant was originally placed on community supervision pursuant to
article 42.12, section 5 of the Texas Code of Criminal Procedure, which allows
a court to defer a finding of guilt and place a defendant on community
supervision. TEX. CODE CRIM. PROC. art. 42.12 § 5(a). When the original term of
community supervision is less than 10 years, it may be extended as often as
8
the judge determines is necessary, up to a period of 10 years. TEX. CODE CRIM.
PROC. art. 42.12 § 22(c),3 Garrett v. State, 377 S.W.3d 697 (Tex. Crim. App.
2012)
There are limits, however, on when this extension may occur. Article
42.12, § 22 (c) allows the court to extend a period of community supervision:
at any time during the period of supervision or, if a motion for
revocation of community supervision is filed before the period of
supervision ends, before the first anniversary of the date on which
the period of supervision expires.
TEX. CODE CRIM. PROC. art. 42.12 § 22(c). The courts have repeatedly found
invalid attempts to extend or modify community supervision after this period
has expired. See Ex parte Lewis, 934 S.W.2d 801, 802-03 (Tex. App. –Houston
[1 Dist.]1996, no pet.) (“The trial court must exercise its power to alter or
modify the terms or conditions of probation during the initial probation
period or any additional probation time added during the initial period.”);
Arrieta v. State, 719 S.W.2d 393, 395 (Tex. App.—Fort Worth 1986, pet. ref’d)
(“[art. 42.12] does not grant the trial court the power to amend or modify
probation once the probation period has expired.” ); Howell v. State, 754
S.W.2d 396, 397 (Tex. App.—Corpus Christi 1988, no pet.) (“The State’s first
3
Tex. Code Crim. Proc. art. 42.12 § 5(a) provides that the extension of deferred
adjudication community supervision is regulated by art. 42.12 § 22.
9
timely-filed Motion for Adjudication of Guilt could not function as a means of
expanding the court’s jurisdiction to alter or extend appellant’s probation
after the original probationary term had expired”) 4
Appellant ignores the plan language of art. 42.12 § 22(c) and
accompanying case law, and argues that the filing of a motion to adjudicate
guilt tolls the running of the community supervision period. Thus, appellant
contends, the trial court had the option to “simply do nothing and continue
[appellant] on deferred adjudication supervision.” (appellant’s brief, p. 21).
The Court of Criminal Appeals long ago rejected this very argument. See
Nicklas v. State, 530 S.W.2d 537 (Tex. Crim. App. 1975) (finding probationary
period not tolled by filing of motion to revoke); See also, Hunter v. State, 640
S.W.2d at 656, 659 (Tex. App.—El Paso 1982, no pet.) (“A motion to revoke
and capias do not toll the running of the probationary period.”); Arrieta v.
State, 719 S.W.2d at 395 (same). In short, defense counsel’s suggestions to
continue community supervision without an adjudication of guilt or delay the
hearing to give appellant time to see if “he’s complied and done good things”
4Ex. Parte Lewis, Arrieta, and Howell were decided under earlier versions of TEX. CODE CRIM.
PROC. art. 42.12, but language requiring that the extension of community supervision be
made during the term of the community supervision has remained the same.
10
were not options, as community supervision was over, and there was nothing
to comply with.
Appellant is also mistaken in attaching any significance to the fact that
ten years had passed since appellant had originally been sentenced to two
years of community supervision. Appellant seems to believe that this time
period limited the court’s sentencing options, as “the judge was up against a
ten-year maximum limit on the total duration of community supervision.”
(appellant’s brief, p. 17). This is incorrect for two reasons. First, appellant’s
period of community supervision had expired after two years, and the
additional amount of time which had passed from that date until the date of
the hearing was not relevant to any calculation of punishment.5 Second, any
amount of community supervision which is assessed prior to an adjudication
of guilt does not count against the period of community supervision which can
be assessed once a court adjudicates a defendant’s guilt. See Slaughter v. State,
110 S.W.3d 500, 502–03 (Tex. App. –Waco 2003, pet. ref’d)(holding that in
5
Under earlier versions of art. 42.12, this time period would have been relevant in
determining whether the State used due diligence in executing the capias, but this due
diligence requirement has been eliminated for most violations of community supervision.
See Garcia v. State, 387 S .W.3d 20, 23-24 (Tex. Crim. App. 2012) (“[B]y its 2003
amendments to Article 42.12, the Legislature eliminated the common-law due-diligence
defense and replaced it with the limited affirmative defense provided in the due-diligence
statute…. [As a result, the due-diligence defense now] “applies to only two revocation
allegations: failure to report to an officer as directed, and failure to remain within a
specified place.”).
11
calculating maximum amount of time to be served on “regular” community
supervision, any period of deferred adjudication community supervision is
not counted); Cordova v. State, 2011 WL 3925765, at *3 (Tex. App. –Amarillo
2011, pet. ref’d) (opin. not designated for publication) (holding periods of
supervision under regular community supervision and deferred adjudication
supervision are not aggregated in determining the total period of supervision
allowable under the terms of art. 42.12). In other words, a court can sentence
a defendant to ten years “deferred adjudication” community supervision,
adjudicate the defendant guilty on the last day of that community supervision,
and place the defendant on a new ten year term of “regular” community
supervision. Fortunately, the trial court judge never gave any indication that
she felt this passage of time was significant or that she was up against any
limit other than her inability to further defer a finding of guilt.
D. The trial court did have jurisdiction to proceed with an
adjudication of guilt even though community supervision had
expired, as the motion to adjudicate guilt and capias were
issued prior to expiration of community supervision.
While the trial court could not have extended appellant’s deferred
adjudication community supervision due to expiration of the community
supervision period, it did have jurisdiction over this case. A trial court has
continuing jurisdiction to hold a hearing and proceed with an adjudication of
12
guilt if a motion to adjudicate and a capias are issued prior to the expiration of
the period of community supervision. TEX. CODE CRIM. PROC. art. 42.12, § 5(h).
This limited grant of continuing jurisdiction is the exclusive authority with
which a court is vested over a defendant once the deferred adjudication
community supervision period has expired. See Ex parte Donaldson, 86 S.W.3d
231, 232 (Tex. Crim. App. 2002) (“We have long held that a trial court has
jurisdiction to hear a motion to revoke [community supervision after the
period expires] as long as the motion was filed, and a warrant or capias
properly issued, during the probationary period.”); Whitson v. State, 429
S.W.3d 632, 636 (Tex. Crim. App. 2014) (same); Ex parte Moss, 446 S.W.3d
786, 788–90 (Tex. Crim. App. 2014) (Finding lack of jurisdiction when capias
not filed before expiration of community supervision period).
So what could the trial court do? Proceed with an adjudication of guilt.
Once appellant was found guilty, the court had several options, from
sentencing appellant within the range of punishment for a state jail felony
(TEX. PENAL CODE § 12.35) to suspending sentence and assessing a new term of
community supervision under art. 42.12 § 3 of up to ten years. These options
were only available, however, once appellant had been adjudicated guilty.
13
E. Conclusion
In short, the record reflects that the trial court understood both the
limits of its jurisdiction and the options available (and not available) for
sentencing. The court’s comments about any lack of “discretion” referred to
its inability to further defer an adjudication of guilt and extend appellant’s
original community supervision. In this regard the court was correct, and
appellant’s contention that it could have done so is wrong.
Appellant’s sole point of error is without merit, and should be
overruled.
14
PRAYER
The State respectfully requests that this Court affirm the judgment of
the trial court.
DEVON ANDERSON
District Attorney
Harris County, Texas
/s/Kimberly Aperauch Stelter
KIMBERLY STELTER
Assistant District Attorney
Harris County, Texas
1201 Franklin, Suite 600
Houston, Texas 77002
(713) 755-5826
State Bar Number: 19141400
Stelter_kimberly@dao.hctx.net
15
CERTIFICATE OF SERVICE
This is to certify that a copy of the foregoing instrument is being served
by EFileTXCourts.Gov e-filer to the following email address
Winston E. Cochran, Jr.
Attorney at Law
P.O. Box 2945
League City, TX 77574
winstoncochran@comcast.net
/s/Kimberly Aperauch Stelter
KIMBERLY STELTER
Assistant District Attorney
Harris County, Texas
1201 Franklin, Suite 600
Houston, Texas 77002
(713) 755-5826
State Bar Number: 19141400
stelter_kimberly@dao.hctx.net
16
CERTIFICATE OF COMPLIANCE
The undersigned attorney certifies that this computer-generated
document has a word count of 3,600 words, based upon the representation
provided by the word processing program that was used to create the
document.
/s/Kimberly Aperauch Stelter
KIMBERLY STELTER
Assistant District Attorney
Harris County, Texas
1201 Franklin, Suite 600
Houston, Texas 77002-1923
(713) 755-5826
TBC No. 19141400
stelter_kimberly@dao.hctx.net
17