Don Willoughby Stephens Iii v. State ( 2013 )

NUMBERS
13-12-00284-CR
13-12-00285-CR
13-12-00286-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
DON WILLOUGHBY STEPHENS III, Appellant,
v.
THE STATE OF TEXAS, Appellee.
On appeal from the 75th District Court
of Liberty County, Texas.
MEMORANDUM OPINION
Before Chief Justice Valdez and Justices Benavides and Longoria
Memorandum Opinion by Chief Justice Valdez
After appellant, Don Willoughby Stephens III, pleaded true to the charge of public
intoxication, the trial court revoked his probation for his convictions for: criminal mischief
(appellate cause number 13-12-00284-CR), see TEX. PEN. CODE ANN. § 28.03 (West
2011); evading arrest (appellate cause number 13-12-00285-CR), see id. § 38.04 (West
2011); and burglary of a building (appellate cause number 13-12-00286-CR), see id. §
30.02 (West 2011). Subsequently, the trial court ordered Stephens’s sentences to run
consecutively. By two issues, Stephens appeals the revocation of his probation and the
order that the sentences run consecutively. In cause number 13-12-00284-CR, we
affirm, and, in cause numbers 13-12-00285-CR and 13-12-00286-CR, we modify the
judgments and affirm as modified.1
I. BACKGROUND
Stephens pleaded guilty to criminal mischief—shooting and killing a deer on
March 6, 2006 and was placed on deferred adjudication for five years. See id. § 28.03.
On May 9, 2007, Stephens then pleaded guilty to evading arrest or detention and was
sentenced to serve two years in the Texas Department of Criminal Justice—State Jail
Division (“State Jail”), probated for five years. See id. § 38.04. On March 3, 2010,
Stephens pleaded guilty to burglary of building and was sentenced to serve eighteen-
months in State Jail. See id. § 30.02. On March 30, 2010, Stephens’s probation was
revoked for his evading arrest conviction, and he was sentenced to eighteen-months in
State Jail. On this same date, Stephens was adjudicated guilty on the criminal mischief
charge and was also sentenced to eighteen-months in State Jail. The trial court
ordered all three sentences to run concurrently. On September 10, 2010, after serving
part of his sentences in state jail, Stephens was placed on shock probation for a period
of five years. See TEX. CODE CRIM. PROC. ANN. art. 42.12 (West Supp. 2011). Ninety-
eight days later, on December 17, 2010, the trial court issued an order of discharge
terminating Stephens’s probation.
However, on January 12, 2011, the trial court granted the State’s motion to set
aside the discharge order and placed Stephens back on probation. The trial court found
1
This case is before this Court on transfer from the Ninth Court of Appeals in Beaumont pursuant
to an order issued by the Supreme Court of Texas. See Tex. Gov’t Code Ann. § 73.001 (West 2005).
2
that it retained plenary power and jurisdiction over the discharge order for thirty days
and, therefore, had authority to enter the set aside order. The trial court concluded that
the discharge order “has at all times been void, invalid, and illegal and without any force
and effect” under Texas Code of Criminal Procedure article 42.12, section twenty
because Stephens had not completed at least one-third of his probation term. See id. §
20.
On March 16, 2012, after Stephens pleaded true to the allegation that he
committed the offense of public intoxication, the trial court held a hearing and revoked
his probation for all three convictions. Stephens was then sentenced to serve the
original eighteen month terms in State Jail for his burglary and evading arrest
convictions and a reformed term of one year for his criminal mischief conviction. The
trial court ordered Stephens to serve these sentences consecutively.
II. CONSECUTIVE SENTENCES
In his first issue, Stephens challenges the trial court’s ruling that he serve his
sentences for all three of his convictions consecutively. He contends that, under Texas
law, the trial court possessed no authority to cumulate his sentences because the trial
court had originally pronounced that the sentences would run concurrently, and he had
already started serving the concurrent sentences.
A. Applicable Law
“When a court grants shock probation under the provisions of [article] 42.12,
[section] 3e, it suspends the execution rather than the imposition of the sentence.”
O'Hara v. State, 626 S.W.2d 32, 35 (Tex. Crim. App. 1981). In these circumstances,
“the defendant actually serves a portion of the sentence. The convicting court may then
suspend the execution of the remainder of the sentence.” Id. It follows, therefore, that
3
a new sentence is not imposed or executed if the probation is revoked; instead, the
suspension of the execution of the sentence is lifted, and the defendant continues to
serve his previously ordered sentence. See Id. A cumulation order increases the
length of the term of a sentence; therefore, in the context of a shock probation
revocation, a cumulation order violates the double jeopardy clause of the Fifth
Amendment to the United States Constitution and article 1, section 14 of the Texas
Constitution by inflicting additional punishment on a defendant who has already started
serving a sentence for the same offense. See Ex parte Reynolds, 462 S.W.2d 605, 607
(Tex. Crim. App. 1970); see also Van Nguyen v. State, Nos. 01-01-01132-CR, 01-01-
01222-CR, 2002 Tex. App. LEXIS 8581, at *3 (Tex. App.—Houston [1st Dist.] Dec. 5,
2002, pet ref’d) (mem. op., not designated for publication). Accordingly, under Texas
law, “a court may not add a cumulation order onto a sentence already imposed after a
defendant has suffered punishment under the sentence as originally imposed. Such an
attempted cumulation order is null and void and of no legal effect.” O’Hara, 626 S.W.2d
at 35.
This Court has consistently recognized and applied the rule in O’Hara. See
Gonzalez v. State, 683 S.W.2d 791, 792 (Tex. App.—Corpus Christi 1984, no pet.); see
also Ex parte Alaniz, 931 S.W.2d 26, 29 (Tex. App.—Corpus Christi 1996, no pet.)
(finding that a trial court violated the double jeopardy clause by holding a hearing after a
defendant had already entered a plea of guilty and citing Gonzalez as an example of
how double jeopardy limits the powers of courts after a sentence is imposed). For
example, in Gonzalez, we set aside a cumulation order when appellant’s probation had
been revoked and his sentence, which he started serving prior to being placed
probation, had initially been ordered to run concurrently. Gonzalez, 683 S.W.2d at 792.
4
B. Analysis
The facts of this case are similar to those in Gonzalez. See id. Here, the trial
court originally ordered the sentences to run concurrently. Stephens then began
serving the sentences, but was subsequently released on probation. However, after
finding that Stephens violated the terms of his probation, the trial court revoked the
probation and, this time, ordered the sentences to run consecutively.
By placing Stephens on shock probation, the trial court suspended the execution
of the remainder of Stephens’s sentences, which Stephens had already begun serving.
See O'Hara, 626 S.W.2d at 35. Therefore, when the trial court revoked Stephens’s
probation, a new sentence could not be imposed or executed. See id. Instead, the
suspension of the execution of the sentences was lifted, and Stephens should have
continued to serve his sentences concurrently as previously ordered. See id.
Accordingly, the trial court had no authority to cumulate Stephens’s sentences. See id.;
Gonzalez, 683 S.W.2d at 792–93. Therefore, we sustain Stephens’s first issue.
III. DUE PROCESS
In his second issue, Stephens contends that the March 16, 2012 order to set
aside the order discharging his probation is void because the trial court deprived him of
his due process rights by not affording him notice or holding a hearing before it entered
the order. However, Stephens has cited no authority, and we find none, supporting a
conclusion that due process affords him a right to notice or a hearing in these
circumstances.2 Therefore, we are unable to reverse the revocation order on this basis.
2
For his due process argument, appellant only cites Perry v. Del Rio in which the Supreme Court
of Texas held that due course of law required a trial before a court could adopt a legislative redistricting
plan. See Perry v. Del Rio, 67 S.W.3d 85, 93−95 (Tex. 2001). To the extent that Stephens makes an
argument that his rights were violated under the Texas Constitution’s Due Course of Law Clause, we
conclude that argument is inadequately briefed. See TEX. R. APP. P. 38.1(i) (providing that briefs must
include clear and concise argument with citation to appropriate authority).
5
Moreover, Texas law establishes that a trial court’s decision regarding the
discharge of probation is considered a probation modification. See TEX. CODE CRIM.
PROC. ANN. art. 42.12, § 11 (West 2012) (establishing that a trial court "may, at any time,
during the period of [probation] alter or modify the conditions"); Christopher v. State, 7
S.W.3d 224, 225 n. 1 (Tex. App.—Houston [1st Dist.] 1999, pet. ref'd) (reasoning that a
trial court's order extending probation for an additional year is a "modification of the
conditions of probation" under the Texas Code of Criminal Procedure); see also Dwyer
v. State, No. 08-01-00004-CR, 2002 Tex. App. LEXIS 9380, at *2 (Tex. App.—El Paso
Jan. 10, 2002, pet. dism'd) (mem. op., not designated for publication) (finding that the
denial of a motion for early termination of probation was a probation modification and
not a final order). As a probation modification, such an order does not require a hearing
to comport with due process.3 See TEX. CODE CRIM. PROC. ANN. art. 42.12, § 20 (West
2012) (granting a judge authority to terminate probation after a defendant has
completed the lesser of one-third or two years of his original term); Sanchez v. State,
603 S.W.2d 869, 870 (Tex. Crim. App. 1980) (finding that a trial court is not required to
hold a hearing prior to enacting a probation modification); 4 JOHN M. SCHMOLESKY,
TEXAS CRIMINAL PRACTICE GUIDE § 82.02 (2012) (explaining that “the Texas Code of
Criminal Procedure Article 42.12 Section 20 does not give either party a right to demand
a hearing and no remedy is specified if the court fails to conduct the review”). This is
consistent with Texas jurisprudence vesting trial court judges with discretion to modify
3
While the statute does require the court to provide the defendant with notice before reduction or
termination of probation, failure to comply with this provision would be a statutory violation and would not
trigger any constitutional right. See Villescas v. State, 189 S.W.3d 290, 294 (Tex. Crim. App. 2006)
(distinguishing the notice that is required by statute from the notice that is constitutionally required).
Because appellant has not raised an issue regarding a statutory violation in this appeal, the Court will not
consider it. See TEX. R. APP. P. 38.1(i) (providing that briefs must include clear and concise argument
with citation to appropriate authority).
6
terms of probation and enabling courts flexibility to alter post-judgment conditions for
alternative sentences. Sanchez, 603 S.W.2d at 870; see Gutierrez v. State, 354 S.W.3d
1, 4 (Tex. App.—Texarkana 2011), aff’d, 380 S.W.3d 167 (Tex. 2012) (explaining that
an “award of probation is not a right, but a contractual privilege”).
Here, the decision whether or not to discharge Stephens from probation is
considered a probation modification within the discretion of the trial court. See TEX.
CODE CRIM. PROC. ANN. art. 42.12, § 11 (West Supp. 2011); Christopher, 7 S.W.3d at
225 n. 1; see also Dwyer, 2002 Tex. App. LEXIS 9380, at *2. Accordingly, no notice or
hearing was required to comport with due process. See TEX. CODE CRIM. PROC. art.
42.12, § 11 (West 2012); Sanchez, 603 S.W.2d at 870.
Therefore, we overrule Stephens’s second issue.
IV. CONCLUSION
In appellate cause numbers 13-12-00285-CR and 13-12-00286-CR, we modify the
trial court’s judgments by striking the cumulation orders from the judgments and affirm
as modified. In appellate cause number 13-12-00284-CR, we affirm.4
___________________
ROGELIO VALDEZ
Chief Justice
Do not Publish.
TEX. R. APP. P. 47.2(b).
Delivered and filed the
21st day of March, 2013.
4
We need not modify the judgment in appellate cause number 13-12-00284-CR because the
judgment revoking probation correctly states that the sentence shall run concurrently.
7