Wilford Don Davis v. State ( 2003 )

                                                             11th Court of Appeals

                                                                  Eastland, Texas

                                                                        Opinion

Wilford Don Davis

Appellant

Vs.             No. 11-02-00162-CR   B Appeal from Jones County

State of Texas

Appellee

 On May 9, 2002, the trial court entered a judgment revoking appellant=s community supervision and sentencing appellant to five years confinement in the Institutional Division of the Texas Department of Criminal Justice.  In his sole appellate issue, appellant complains that the trial court denied him his right to a speedy trial by failing to act on his motion for speedy revocation and his subsequent motion to quash motion to revoke.  We affirm.  

In 1997, the trial court placed appellant on community supervision for a term of five years for a third degree felony DWI offense. About two months later, the 91st District Court of Eastland County placed appellant on five years community supervision for a DWI offense that occurred in Eastland County.  In July 2000, the 91st District Court of Eastland County revoked appellant=s community supervision as a result of another DWI offense and sentenced him to three years confinement.  Although the Jones County District Attorney=s office had not filed a motion to revoke appellant=s community supervision at that time, appellant filed a motion for speedy revocation hearing in this cause on September 6, 2000, and wrote a letter to the trial court requesting the trial court to revoke his community supervision so that he could serve his sentences concurrently.  The Jones County Probation Department informed the trial court that it did not have any violations on appellant at that time. Therefore, the trial court=s administrator wrote a letter to appellant acknowledging receipt of the motion for speedy revocation and explaining that, because the Jones County Probation Department did not have any violations on appellant at that time, no motion to revoke would be filed. 

Appellant obtained the help of the State Counsel for Offenders.  The Jones County District Attorney offered appellant a plea bargain.  The Jones County District Attorney agreed that appellant=s sentence would be for three years to run concurrently with his Eastland County sentence. The terms of the State=s plea bargain offer required appellant to waive his right to a community supervision hearing so that the trial court could revoke his community supervision without having a hearing in Jones County, and the Jones County District Attorney=s office prepared a proposed waiver of community supervision revocation hearing.^[1]  However, appellant refused to waive his right to a hearing because the proposed waiver did not include a start date for his Jones County sentence. On July 18, 2001, the State Counsel for Offenders wrote the Jones County District Attorney a letter stating that appellant had refused, in open court, to waive his right to a revocation hearing and that there was nothing else that the State Counsel for Offenders could do.  Appellant claims that he wrote the Jones County District Attorney to find out the start date for his sentence, but did not receive any response. 

In connection with a plea offer, the State filed a motion to revoke appellant=s community supervision on August 20, 2001.  The Jones County District Attorney testified that this motion to revoke was based on appellant=s failure to report to his probation officer and failure to pay required monthly payments during the time that appellant was incarcerated.  The State filed the motion so that appellant could waive his right to a revocation hearing and request the trial court to revoke his community supervision under TEX. CODE CRIM. PRO. ANN. art. 42.12, ' 21(b) (Vernon Supp. 2003). However, because appellant did not waive his right to a revocation hearing, the motion was dismissed on October 15, 2001.  Thus, a plea agreement was never presented to the trial court for consideration. Meanwhile, in October 2001, appellant was released on parole.  In February and March 2002, the State filed a motion and an amended motion to revoke appellant=s community supervision based on violations that occurred after appellant=s release on parole.  The trial court heard the amended motion to revoke on May 9, 2002, and entered its judgment revoking appellant=s community supervision and sentencing appellant to five years confinement on May 9, 2002.

Appellant asserts that the trial court=s failure to act on his September 6, 2000, motion for speedy revocation violated his right to a speedy trial. The right to a speedy trial is applicable to probation revocation proceedings.  Wade v. State, 83 S.W.3d 835, 837 (Tex.App. B  Texarkana 2002, no pet=n)(citing Carney v. State, 573 S.W.2d 24, 26 (Tex.Cr.App.1978)).  However, appellant=s filing of the motion for speedy revocation did not trigger a right to a speedy trial. The right to a speedy trial arises when the State files a motion to revoke.  Martinez v. State, 531 S.W.2d 343, 345 (Tex.Cr.App.1976).  The State had not filed a motion to revoke when appellant filed his motion.  Therefore, appellant did not have the right to a speedy trial.   

In his motion for speedy revocation, appellant relied on Article 42.12, section 21(b) for the proposition that he was entitled to a revocation hearing within 20 days from the date that he filed the motion. Article 42.12, section 21(b) provides in part:

At any time during the period of community supervision the judge may issue a warrant for violation of any of the conditions of the community supervision and cause the defendant to be arrested....A defendant so arrested may be detained in the county jail or other appropriate place of confinement until he can be taken before the judge....If the defendant has not been released on bail, on motion by the defendant the judge shall cause the defendant to be brought before the judge for hearing within 20 days of filing of said motion, and after a hearing without a jury, may either continue, extend, modify, or revoke the community supervision.     

Appellant was not entitled to a hearing under this provision; he had not been arrested for community supervision violations in Jones County at the time that he filed his motion for speedy revocation.

The State filed a motion to revoke in February 2002 and an amended motion to revoke on March 20, 2002.  The trial court held the hearing on the amended motion on May 9, 2002.  Thus, there was no denial of a speedy trial.                  

Appellant=s sole issue is overruled.  The judgment of the trial court is affirmed.                           

JIM R. WRIGHT

JUSTICE

April 3, 2003

Do not publish.  See TEX.R.APP.P. 47.2(b).

Panel consists of:  Wright, J., and

McCall, J., and Dickenson, S.J.^[2]

---

^[1]See TEX. CODE CRIM. PRO. ANN. art. 42.12, ' 21(b) (Vernon Supp. 2003) which provides in part:

A judge may revoke the community supervision of a defendant who is imprisoned in a penal institution without a hearing if the defendant in writing before a court of record in the jurisdiction where imprisoned waives his right to a hearing and to counsel, affirms that he has nothing to say as to why sentence should not be pronounced against him, and requests the judge to revoke community supervision and to pronounce sentence.

     ^[2]Bob Dickenson, Retired Justice, Court of Appeals, 11th District of Texas at Eastland sitting by assignment.