Bridgett Lavell Roberson v. State ( 2010 )

IN THE

TENTH COURT OF APPEALS

 

No. 10-10-00065-CR

Bridgett Lavell Roberson,

                                                                                    Appellant

 v.

The State of Texas,

                                                                                    Appellee

From the 272nd District Court

Brazos County, Texas

Trial Court No. 09-00811-CRF-272

ABATEMENT ORDER

            This order is an effort by this Court, working with the trial court, under the current version of the rules of appellate procedure to ensure that the appellate record is timely filed.  Tex. R. App. P. 35.3(c).  This order is also a departure from previous orders of this Court and is our effort to empower the trial court and parties with a procedure to obtain a timely record by establishing a more formal and certain process for early intervention upon the identification of potentially late filed records. 

            As stated above, the responsibility for assuring the record is timely filed is now the responsibility of the appellate court and the trial court, jointly.  Tex. R. App. P. 35.3(c).  Previously, prior to the current rule, it was the responsibility of the litigants to ensure the timely filing of the record.  Tex. R. App. P. 53(k), amended eff. Sept. 1, 1997.  This is not to say, however, litigants are prohibited from participating in the process.  We believe the attorneys representing the parties play a valuable role in assisting the Courts by appearing at any hearing ordered and (1) making a record of the reason(s) the record has not been timely filed and (2) making a record of the actual or potential prejudice to the parties when a record is filed late.

Background

            The reporter’s record in this appeal was originally due on March 30, 2010.  Two reporters, Carolyn White, the official court reporter for the 272nd District Court, and Susan Rainwater, were responsible for the preparation of this record.  Although White had her portion of the record ready to be printed and assembled, White informed the Court that Susan Rainwater had not completed her portion of the record.  White received an extension of time to April 29, 2010 to file the record.  On April 23, the Court received a notice from White explaining that, again, Susan Rainwater had not completed her portion of the reporter’s record.  This time, both reporters received an extension to June 1, 2010 to file the record.  No reporter’s record was filed.  On June 2, 2010, the Court received a notice from White that her portion of the record was printed and bound but that she could not prepare a master index without Susan Rainwater’s portion of the record.  White also informed the Court that Susan Rainwater’s mother had passed away.  The Court did not receive any notice from Susan Rainwater.

            On July 15, 2010, the Clerk of this Court sent a letter to Susan Rainwater asking that she contact the Court within 10 days regarding the late record.  That request has been ignored. Furthermore, this is not the first time that this Court has had excessive difficulties in receiving records from Susan Rainwater.  Since the July 15 letter was sent to Rainwater, the Court has received a letter from Roberson’s counsel regarding the record and a motion for the Court to compel the reporter to file the record. 

Order

            This appeal is ORDERED abated to the trial court, the 272nd District Court, the Honorable Travis B. Bryan, III, presiding, to hold a hearing as soon as practicable but not later than 28 days after the date of this Order to determine:

(1)        why Susan Rainwater’s portion of the reporter’s record has not been filed;

(2)        why there has been no response from Susan Rainwater to the Court’s          correspondence; and

(3)        a date certain by when Susan Rainwater’s portion of the reporter's record   can reasonably be transcribed into written form and filed in a manner that     does not further delay the prosecution of this appeal or have the practical             effect of depriving appellant of his right to appeal.

            Counsel for the parties are ordered to assist the trial court in making its determinations through subpoena and questioning of Susan Rainwater and any other necessary witnesses.  Susan Rainwater shall closely examine her professional and personal schedules and provide those schedules to the trial court in an effort to assist the trial court with a determination of a date certain that her portion of the reporter’s record will be filed.  The parties’ counsel shall also make the trial court aware of any actual or potential prejudices to the parties by the lateness of this reporter’s record.

            The trial court must order Susan Rainwater to file the record by the date determined.  Further, the trial court must inform Susan Rainwater of the consequences of failing to file the record by the date determined and ordered.  Those consequences include:

            (1)        abating the proceeding again to the trial court for a contempt of court                                 hearing;

            (2)        imposing a lump sum monetary fine;

            (3)        imposing a daily fine for each day the record is late beyond the date                                   previously determined by the trial court; and

            (4) confinement in jail until the record is completed.

            The trial court shall require the hearing to be transcribed.  To the extent necessary or pertinent to obtaining compliance with the rules regarding preparation of the reporter’s record, the trial court must: (1) prepare findings of fact and conclusions of law addressing the above issues; (2) require the preparation of a supplemental clerk's record containing its findings of fact and conclusions of law and all orders it may issue as a result of its hearing in the matter; and (3) require the preparation of a reporter's record transcribing the evidence and arguments presented at the aforementioned hearing.  Additionally, the trial court’s findings and orders must be provided to the trial court clerk within 7 days from the date of the hearing. 

            The trial court clerk is ORDERED to provide a supplemental clerk’s record, containing the written findings and orders of the trial court, to this Court within 14 days from the date of the hearing. 

            Further, the trial court’s official reporter is ORDERED to provide a record of the hearing held to this Court within 14 days from the date of the hearing.

                                                                        PER CURIAM          

Before Chief Justice Gray,

            Justice Reyna, and

            Justice Davis

Order issued and filed December 15, 2010

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b style='mso-bidi-font-weight:normal'>BACKGROUND

On June 15, 1998, Demouchette was arrested for possession of a controlled substance under one gram.  He was released on bond that same day.  After he pled guilty, he was sentenced to five years’ deferred adjudication probation.  The State filed a motion to proceed with adjudication of guilt and sentence for which Demouchette was arrested on July 21, 2000.  On July 25, 2000, he was again released on bond.  He pled “true” to the State’s motion and was sentenced to two years in a state jail facility probated for three years.  Later, the State filed a motion to revoke community supervision for which Demouchette was arrested on March 21, 2003.  On May 1, 2003, a hearing was held and the trial court revoked Demouchette’s probation and sentenced him to twelve months confinement in a state jail facility.

JAIL CREDIT

Demouchette argues that he is entitled to jail credit for the following: 1) time spent in Brazos County jail after his initial arrest; 2) time he was confined pending the hearing on the State’s motion to proceed with adjudication; and 3) time he was confined on the State’s motion to revoke community supervision.

The State argues that he is not entitled to credit for 1) the time confined after his initial arrest because he did not receive the maximum sentence; and 2) time confined pending the hearing on the State’s motion to proceed with adjudication because he was not sentenced to a state jail facility following the adjudication of guilt.  The State agrees that Demouchette is entitled to state jail credit for the days he spent confined pending the hearing on the State’s motion to revoke his community supervision.

A trial court has discretion whether to grant credit: “[a] judge may credit against any time a defendant is required to serve in a state jail felony facility time served by the defendant in county jail from the time of the defendant’s arrest and confinement until sentencing by the trial court.”  Tex. Code Crim. Proc. Ann. art. 42.12, § 15(h)(2) (Vernon Supp. 2004-05); see also Ex parte Bates, 978 S.W.2d 575, 577 (Tex. Crim. App. 1998). There is an exception to this discretionary provision: under the equal protection clause of the Fourteenth Amendment, a defendant is entitled to credit for time served, from the time of his arrest to the entry of a guilty plea if he was unable to post bond due to his indigence and he received the maximum sentence.  Ex parte Harris, 946 S.W.2d 79, 80 (Tex. Crim. App. 1997).  This exception does not apply when the defendant is assessed less than the maximum punishment and would not be required to serve more than the maximum punishment if the confinement times were added together.  Ex parte Bates, 978 S.W.2d at 577.  In state jail felony cases, a defendant is entitled to credit for time confined pending a State’s motion to revoke his community supervision.  Id. at 577-78.

The maximum statutory sentence for Demouchette’s state jail felony is two years.  He was sentenced to one year.  Therefore, for the time (one day) spent in jail after his initial arrest,[1] Demouchette is not entitled to credit because he was sentenced to less than the maximum sentence and adding one day would not exceed the maximum sentence.  See Ex parte Bates, 978 S.W.2d at 578; Ex parte Harris, 946 S.W.2d at 80.

The State’s motion to proceed with adjudication was treated as a motion to revoke Demouchette’s deferred adjudication probation, and the court entered an Order finding him guilty and sentenced him to two years’ imprisonment probated for three years.  Therefore, we use the rule applicable to a motion to revoke community supervision. Thus, for the time spent confined pending a hearing on the State’s motion to proceed with adjudication,[2] Demouchette is entitled to credit.  See Ex parte Bates, 978 S.W.2d at 577-78; see also Smith v. State, No. 06-04-00015-CR, 2004 Tex. App. LEXIS 5074, *5-6 (Tex. App.—Texarkana 2004, no pet.).

For the time spent confined pursuant to the State’s motion to revoke community supervision,[3] Demouchette is entitled to credit, to which the State agrees.  See Ex parte Bates, 978 S.W.2d at 577-78.

CONCLUSION

We modify the judgment and sentence.  The Texas Department of Criminal Justice, State Jail Division, shall credit Demouchette’s sentence in cause number 26208-272 in the 272nd District Court of Brazos County for the period from July 21, 2000, to July 25, 2000, and from March 21, 2003, to May 1, 2003.  We affirm the judgment and sentence as modified.

A copy of this opinion shall be sent to the Texas Department of Criminal Justice, State Jail Division.

BILL VANCE

                                                                   Justice

Before Chief Justice Gray,

          Justice Vance, and

          Justice Reyna

          (Chief Justice Gray dissents without a separate opinion.)

Affirmed as modified

Opinion delivered and filed December 29, 2004

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    [1]       June 15, 1998.

    [2]           July 21, 2000 – July 25, 2000.

    [3]           March 21, 2003 – May 1, 2003.