Jose Angel Cordova v. State ( 2011 )

NO. 07-09-00371-CR
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL A
SEPTEMBER 7, 2011
JOSE ANGEL CORDOVA, APPELLANT
v.
THE STATE OF TEXAS, APPELLEE
FROM THE 242ND DISTRICT COURT OF HALE COUNTY;
NO. B14880-0303; HONORABLE EDWARD LEE SELF, JUDGE
Before CAMPBELL and HANCOCK and PIRTLE, JJ.
MEMORANDUM OPINION
Appellant, Jose Angel Cordova, entered a plea of guilty to possession of a
controlled substance, less than one gram, and as part of a plea agreement, was placed
on deferred adjudication community supervision for two years. Eventually, appellant
was adjudicated guilty and he was placed on straight probation. On October 22, 2009,
appellant’s probation was revoked and he was sentenced to two years in a State Jail
Facility. Appellant has perfected his appeal of the judgment. We affirm.
Factual and Procedural Background
Appellant’s initial plea, on September 22, 2003, was to two years deferred
adjudication community supervision. The State filed an original and amended motion to
proceed to adjudication. The amended motion was ultimately dismissed without
prejudice on May 23, 2005. Later, on August 25, 2005, the State filed another motion to
proceed. This motion was heard by the trial court on December 28, 2006, and appellant
was adjudicated guilty and sentenced to three years community supervision. On
August 26, 2009, the State filed a motion to revoke appellant’s community supervision.
The trial court conducted a hearing on the motion to revoke on October 22, 2009, and
revoked appellant’s community supervision, sentencing him to two years in a State Jail
Facility.
Appellant’s initial appellate counsel filed an Anders1 brief contending that there
were no arguable issues on appeal. We affirmed the conviction on that basis in
Cordova v. State, No. 07-09-00371-CR (Tex.App.—Amarillo, delivered April 19, 2010).
Subsequently, on June 22, 2010, appellant filed a petition for discretionary review, a
copy of which was filed with this Court. See TEX. R. APP. P. 68.3.2 We withdrew our
original opinion and issued a subsequent opinion on January 6, 2011. See Cordova v.
State, No. 07-09-00371-CR, 2011 Tex. App. LEXIS 105 (Tex.App.—Amarilo Jan. 6,
2011), reversed per curiam, No. PD-0630-10 (Tex.Crim.App. Apr. 20, 2011). However,
our subsequent opinion was untimely under rule 50, as the same was issued more than
1
See Anders v. California, 386 U.S. 738, 87 S. Ct. 1396, 18 L. Ed. 2d 498 (1967).
2
Further reference to the Texas Rules of Appellate Procedure will be by
reference to “rule ___.”
2
60 days after appellant’s petition for discretionary review had been filed. The Court of
Criminal Appeals ordered that our opinion of January 6, 2011 be withdrawn, and
remanded the case to this Court to properly consider the arguable grounds for appeal.
See Cordova, No. PD-0630-10.
Appellant brings forth three issues. Two of appellant’s issues contend that the
trial court did not have jurisdiction to adjudicate appellant guilty on December 28, 2006,
or to revoke appellant’s community supervision on October 22, 2009. Appellant’s other
issue contends that the judgment of the trial court revoking appellant’s community
supervision was void. We disagree and affirm the judgment of the trial court.
Jurisdiction of Trial Court
The contentions of appellant’s brief contest the jurisdiction of the trial court to act
on two different occasions. We will address those contentions separately.
Motion to Proceed
Appellant’s initial contention is that on December 28, 2006, when the trial court
conducted a hearing on the State’s motion to proceed, the trial court lacked jurisdiction
over appellant’s case. According to appellant, this is because this hearing was held
outside of the initial two-year period during which appellant was on deferred
adjudication community supervision. Under appellant’s theory, the State should have
obtained a hearing and the trial court should have adjudicated appellant guilty by
September 22, 2005. Further, appellant contends that, since the order adjudicating
appellant guilty and placing him on community supervision occurred more than one year
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after the expiration of the term of appellant’s deferred adjudication community
supervision, the placement of appellant on community supervision for a period of three
years was void for lack of jurisdiction.
However, we must first address the issue of the jurisdiction of the trial court to act
on December 28, 2006. Remembering that appellant initially received two years
deferred adjudication on September 22, 2003, appellant’s deferred adjudication was
scheduled to expire on September 22, 2005. However, the State filed a motion to
adjudicate on August 25, 2005, prior to the expiration of the deferred adjudication. The
record reflects that, on that same day, an order for a capias was issued to take
appellant into custody. Further, the record shows that appellant was served with the
warrant on September 6, 2005.
Appellant’s initial deferred adjudication was granted pursuant to section 5 of
article 42.12 of the Texas Code of Criminal Procedure. See TEX. CODE CRIM. PROC.
ANN. art. 42.12, § 5 (West Supp. 2010).3 Article 42.12, section 5(b) provides that, upon
a violation of one of the terms and conditions imposed under subsection (a), a
defendant may be arrested and detained as provided in section 21 of article 42.12. See
art. 42.12, § 5(b). The provisions of section 21 make it clear that, at any time during the
period of community supervision, a judge may issue a warrant for a defendant and
detain the defendant until a hearing is held. See art. 42.12, § 21(b). When interpreting
this statutory scheme against an allegation of loss of jurisdiction because the hearing
was held after the probationary period expired, the Texas Court of Criminal Appeals
3
Further reference to the Texas Code of Criminal Procedure will be by reference
to “Article __” or “art. ___.”
4
held that so long as the motion to revoke or proceed is filed and the warrant to arrest is
issued before the expiration of the community service period, the trial court retains
jurisdiction to act upon the community supervision. See Ex parte Donaldson, 86 S.W.3d
231, 232 (Tex.Crim.App. 2002) (per curiam); Bender v. State, No. 07-03-0235-CR, 2005
Tex.App. LEXIS 4335, at *1 (Tex.App.—Amarillo June 7, 2005, no pet.) (per curiam)
(mem. op., not designated for publication). Accordingly, appellant’s contention that the
trial court did not have jurisdiction to hear the motion to proceed is overruled.
However, appellant is connecting this argument with a reading of article 42.12,
section 22, to conclude that the trial court lost jurisdiction. Section 22(c) provides that:
A court may extend a period of community supervision under this section
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
ends.
See art. 42.12, § 22(c). According to appellant’s argument, when the trial court
adjudicated his case on December 28, 2006, the trial court, in effect, continued or
modified his community supervision. Therefore, according to appellant’s theory, this
continuation or modification occurred after the first anniversary date on which
appellant’s community supervision ended. Thus, the trial court had no jurisdiction to so
act.
Appellant’s argument has several flaws. Initially, we can find nothing in the
record that would be construed as a continuation of or modification to appellant’s initial
deferred adjudication community supervision. Quite the contrary, the trial court
adjudicated appellant guilty and placed him on community supervision. An adjudication
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of appellant’s guilt precluded the trial court from continuing or modifying appellant’s
deferred adjudication. Therefore, article 42.12, section 22, does not even apply to
appellant.
Next, we note that appellant has not cited this Court to any authority that has
followed appellant’s reasoning nor have we found any cases that support appellant’s
contentions. The only case that appellant can direct this Court’s attention to is Judge
Meyer’s dissenting opinion in Connolly v. State, 983 S.W.2d 738, 746 (Tex.Crim.App.
1999). In Connolly, the issue was the appellant’s right to appeal a finding that the State
used due diligence in apprehending the appellant after a motion to adjudicate had been
filed. Id. at 739. The issue was not about the one-year time frame for the trial court to
conduct a hearing on continuation or modification of an appellant’s community
supervision after the primary term had expired. In fact, the Connolly court affirmed an
adjudication of guilt where the motion to proceed and capias were filed during the
deferred adjudication period but the adjudication was not entered until a year and four
months after the expiration of the deferred adjudication period. See id. at 739. Thus,
because the Connolly court would be required to address its lack of jurisdiction if
appellant’s contention was correct, Connolly actually supports the trial court’s actions in
the present case. Accordingly, we overrule appellant’s first issue.
Motion to Revoke
Appellant’s next contention is that the trial court lacked the jurisdiction to revoke
appellant’s community supervision on October 22, 2009. According to appellant, this is
so because the hearing was held outside of the statutory maximum time limit of
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appellant’s community supervision. To arrive at this conclusion, appellant asks this
Court to ignore cases of other Courts of Appeals that have held that, in calculating the
maximum amount of time an appellant may be ordered to serve on community
supervision, the courts do not aggregate the deferred adjudication community
supervision periods with the traditional community supervision periods. See Slaughter
v. State, 110 S.W.3d 500, 502-03 (Tex.App.—Waco 2003, pet. ref’d); Villarreal v. State,
No. 04-95-0073-CR, 1996 Tex.App. LEXIS 1564, at *3 (Tex.App.—San Antonio Apr. 24,
1996, pet. ref’d) (not designated for publication) (citing McNew v. State, 608 S.W.2d
166, 177 (Tex.Crim.App. 1978)). We agree with our sister courts in holding that the
periods of supervision under regular community supervision and deferred adjudication
supervision are not aggregated to determine the total period of supervision allowable
under the terms of article 42.12. See art. 42.12, § 15(b) (setting forth the maximum
period for state jail felony community supervision at five years with the right to extend
state jail felony community supervision up to a ten-year maximum). Appellant was
adjudicated guilty on December 28, 2006, and he was placed on standard community
supervision for a period of three years. This term of community supervision did not
exceed the maximum amount of time appellant could be placed on community
supervision for a state jail felony offense. Therefore, the trial court retained jurisdiction
over appellant’s case and subsequently revoked appellant’s community supervision and
assessed a sentence of confinement in a State Jail Facility for two years. Accordingly,
we overrule appellant’s second issue.
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We need not address the contention in appellant’s third issue because that issue
is predicated upon our sustaining either appellant’s first or second issue. Having
overruled both appellant’s first and second issues, we do not reach the third issue.
Conclusion
The judgment of the trial court is affirmed.
Mackey K. Hancock
Justice
Do not publish.
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