Jeb Pemberton v. State ( 2001 )

NO. 07-01-0335-CR

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL A

OCTOBER 22, 2001

______________________________



JEB PEMBERTON, APPELLANT

V.

THE STATE OF TEXAS, APPELLEE



_________________________________

FROM THE 181^ST DISTRICT COURT OF POTTER COUNTY;

NO. 42,467-B; HONORABLE JOHN B. BOARD, JUDGE

_______________________________

Before BOYD, C.J., and REAVIS and JOHNSON, JJ.  

Appellant Jeb Pemberton was convicted of the offense of evading arrest with a vehicle and sentenced to confinement for two years in a state jail facility and a fine of $5,000. He gave a pro se notice of appeal from that conviction on June 8, 2001. Appellant then retained counsel, who filed with the trial court a motion to dismiss appellant's pro se notice of appeal and a motion for new trial. The motion to dismiss the appeal was granted by the trial court, and the motion for new trial was filed and subsequently overruled by operation of law.

We previously abated this appeal back to the trial court because the motion to dismiss was erroneously filed in that court and the withdrawal did not include the signature of appellant as required by Rule of Appellate Procedure 42.2 for a voluntary dismissal in a criminal case. Furthermore, although we had requested by letter that counsel for appellant file a motion to dismiss with the clerk of this court, no such motion was filed. We therefore requested the trial court to determine whether appellant wished to continue to prosecute his appeal.

We have since received findings of fact and conclusions of law from the trial court and a transcript of the proceeding held in that court. The record shows that, since the date that appellant filed his motion to dismiss his pro se notice of appeal, he was indicted on another charge arising out of the same incident, and the State agreed to dismiss that charge in exchange for appellant dismissing the appeal that is currently before this court. Appellant affirmed on the record that he wished to accept the State's offer, and it was his intent to withdraw his notice of appeal.

We have the authority, pursuant to Rule 2 of the Rules of Appellate Procedure, to suspend the operation of Rule 42.2(a) for this appeal only, and find that appellant has voluntarily dismissed his appeal by virtue of his testimony during the hearing and despite his lack of compliance with that rule. See Conners v. State, 966 S.W.2d 108, 110-11 (Tex.App.--Houston [1^st Dist.] 1998, pet. ref'd). Therefore, because the record shows appellant no longer wishes to pursue his appeal, it is hereby dismissed.  

John T. Boyd

Chief Justice

Do not publish.

., and HANCOCK and PIRTLE, JJ.

MEMORANDUM OPINION

          Pursuant to open pleas of guilty, Appellant, Joshua McCabe Sutton, was convicted of manufacture or delivery of a controlled substance, a second degree felony. Punishment was assessed at eight years confinement. By a sole issue, Appellant maintains his constitutionally guaranteed due process rights were violated by the trial court’s failure to consider and rule on his pro se motion for shock probation. We dismiss.

          Appellant’s sentence was imposed on December 20, 2007. On June 17, 2008, Appellant filed a pro se “Motion for Probation After Execution of Sentence.” The trial court did not rule on the motion. Appellant asks this Court to decide “the novel issue of whether a timely-filed pro se motion for shock probation must be ruled on by the trial court.”

          Article 42.12, § 6 of the Texas Code of Criminal Procedure provides that the trial court’s jurisdiction in a felony case shall continue for 180 days from the date the execution of the sentence actually begins for the purpose of suspending further execution of a sentence. See Tex. Code Crim. Proc. Ann. art. 42.12, § 6 (Vernon 2006). This provision, commonly referred to as “shock probation,” allows the trial court to suspend further imposition of sentence after the convicted party has experienced the “shock” of actual incarceration. Subparagraph (c) of this section provides that a judge may deny the motion without a hearing but may not grant the motion without holding a hearing.

          Appellant references this Court to Rules 21.8(c)(pertaining to motions for new trial) and 22.4(b)(pertaining to motions in arrest of judgment) of the Texas Rules of Appellate Procedure for guidance. Those rules provide that certain post-judgment motions are “deemed denied” if not timely ruled upon. There is no similar “deemed denied” provision pertaining to article 42.12, § 6.

          Appellant contends he is entitled to due process because he followed the requirements of article 42.12, § 6 and he is otherwise eligible for shock probation. According to Appellant, because the Legislature failed to include a “deemed denied” provision in article 42.12, § 6, the trial court continues to have the authority to rule upon such motions. Therefore, Appellant asks this Court to remand the cause to the trial court so that the motion for shock probation may be considered and ruled on.

          Initially, we address the jurisdictional conundrum. First, there is no order entered pursuant to article 42.12, § 6 from which to appeal. Second, even assuming an order was entered, an appellate court does not have jurisdiction to entertain an appeal from an order entered pursuant to article 42.12, § 6. See Basaldua v. State, 558 S.W.2d 2, 5 (Tex.Crim.App. 1977). See also Houlihan v. State, 579 S.W.2d 213, 216 (Tex.Crim.App. 1979). Finally, notwithstanding the fact that Appellant filed his motion on the 180th day from the date the execution of his sentence began, on the 181st day, the trial court lost jurisdiction to act on the motion. Neugebauer v. State, 266 S.W.3d 137 (Tex.App.--Amarillo 2008, no pet.). The statute can have no other construction than that jurisdiction to act ceased when the 180-day period expired. Houlihan, 579 S.W.2d at 219. Thus, even if we were to remand the cause to the trial court, the trial court would have no authority to consider or rule on Appellant’s motion for shock probation.

          Therefore, we conclude that Appellant’s constitutional due process rights were not violated by the trial court’s failure to consider and rule on his motion for shock probation and we overrule Appellant’s sole issue.

          Consequently, these appeals are dismissed.

                                                                           Patrick A. Pirtle

                                                                                 Justice

Do not publish.