Jimmy Porras v. State

Affirmed; Opinion Filed December 30, 2019
In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-18-01108-CR
JIMMY PORRAS, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 291st Judicial District Court
Dallas County, Texas
Trial Court Cause No. F06-19430-U
MEMORANDUM OPINION
Before Justices Myers, Osborne, and Nowell
Opinion by Justice Myers
This is an appeal from a judgment adjudicating guilt. In one issue, appellant argues the
trial court erred in adjudicating guilt and revoking appellant’s community supervision because the
court lost jurisdiction to revoke appellant’s community supervision. We affirm.
BACKGROUND AND PROCEDURAL HISTORY
Appellant was indicted for the offense of aggravated sexual assault of a child under the age
of fourteen. See TEX. PENAL CODE ANN. § 22.021. Sixteen years of age when he committed the
offense, appellant and his counsel waived a discretionary transfer hearing in the juvenile court,
and the juvenile court waived jurisdiction. The case was transferred to the 291st Judicial District
Court. On October 26, 2007, appellant appeared before the trial court and pleaded nolo contendere
to the indictment. In accordance with appellant’s plea agreement, the trial court deferred an
adjudication of guilt and placed appellant on community supervision for a period of five years.
The court also assessed a $500 fine.
On February 17, 2011, the State filed a motion to proceed with an adjudication of guilt.
On March 22, 2011, the State withdrew the motion, and the trial court entered an order modifying
the terms and conditions of appellant’s community supervision.
The trial court subsequently modified the terms of appellant’s community supervision and
extended the period of community supervision three times. On September 7, 2012, the court
extended appellant’s community supervision twenty-four months, from October 26, 2012 to
October 26, 2014. On September 10, 2014, the court extended the period of community
supervision twelve months, from October 26, 2014 to October 26, 2015. On September 23, 2015,
the court extended the appellant’s community supervision an additional eighteen months, from
October 26, 2015 to April 26, 2017.
On December 6, 2016, the State filed a motion to proceed with an adjudication of guilt
alleging multiple violations of the terms of appellant’s community supervision. Appellant was
arrested on March 22, 2017.
The trial court held an adjudication hearing on September 6, 2018. Appellant entered an
open plea of true to the allegations in the State’s motion. The court accepted appellant’s plea,
found the allegations in the State’s motion to adjudicate true, and granted the motion. The trial
court found appellant guilty and sentenced him to eighteen years’ imprisonment. The court
certified appellant’s right to appeal and appellant filed a notice of appeal. Appellant also filed a
motion for new trial, which the trial court denied.
DISCUSSION
In his issue on appeal, appellant contends the trial court erred in adjudicating guilt and
revoking appellant’s community supervision because the court lost jurisdiction to revoke
appellant’s community supervision.
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We review an order revoking probation under an abuse of discretion standard. Rickels v.
State, 202 S.W.3d 759, 763 (Tex. Crim. App. 2006). The State must prove by a preponderance of
the evidence that a defendant violated the terms of his probation. Cobb v. State, 851 S.W.2d 871,
873 (Tex. Crim. App. 1993) (en banc). The trial court is the sole judge of the credibility of the
witnesses and the weight to be given to their testimony, and we review the evidence in the light
most favorable to the trial court’s ruling. See Cherry v. State, 215 S.W.3d 917, 919 (Tex. App.—
Fort Worth 2007, pet. ref’d). A single violation of a probation condition is sufficient to support a
trial court’s decision revoking probation. See Garcia v. State, 387 S.W.3d 20, 26 (Tex. Crim. App.
2012); Moore v. State, 605 S.W.2d 924, 926 (Tex. Crim. App. 1980).
The probation revocation proceeding is an administrative hearing, rather than a civil or
criminal trial. Cobb, 851 S.W.2d at 873. It is considered an extension of the original sentencing
portion of the defendant’s trial, and therefore it is subject to the continuing jurisdiction of the trial
court. Id. at 874. The trial court maintains its jurisdiction to hear a motion to adjudicate guilt as
long as the motion is filed with the court and a capias is issued before the end of the defendant’s
probationary period. See Ex parte Moss, 446 S.W.3d 786, 792 (Tex. Crim. App. 2014) (citing
former article 42.12, section 5(h) of the code of criminal procedure).
In a felony case, the period of deferred adjudication community supervision may not
exceed ten years, and for a defendant charged with a felony under sections 21.11, 22.011, or 22.021
of the penal code, regardless of the age of the victim, and for a defendant charged with a felony
described by article 42A.453(b) of the code of criminal procedure, the period of deferred
adjudication community supervision may not be less than five years. TEX. CODE CRIM. PROC.
ANN. art. 42A.103(a). A judge may extend the maximum period of deferred adjudication
community supervision in the manner provided by articles 42A.753 or 42A.757 of the code of
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criminal procedure. Id. art. 42A.103(c); 2 TEX. PRAC. GUIDE CRIM. PRAC. & PROCEDURE § 25:34
(deferred adjudication community supervision; time limits).
Article 42A.752 (titled, “Continuation or Modification of Community Supervision After
Violation”) provides in part that a judge may, after finding the defendant violated a condition of
community supervision, impose any other conditions the judge deems appropriate, including “an
extension of the period of community supervision, in the manner described by Article 42A.753.”
TEX. CODE CRIM. PROC. ANN. art 42A.752(a)(2). Article 42A.753 (“Extension of Community
Supervision After Violation”) provides in part that “[o]n a showing of good cause, the judge may
extend a period of community supervision under Article 42A.752(a)(2) as frequently as the judge
determines is necessary, but the period of community supervision in a first, second, or third degree
felony case may not exceed 10 years. . . .” Id. art. 42A.753(a) (emphasis added). Article 42A.757
(“Extension of Community Supervision for Certain Sex Offenders”) operates in conjunction with
article 42A.753 and applies only to individuals placed on deferred adjudication community
supervision for certain sex offenses, including aggravated sexual assault of a child. See id. art.
42A.757. Article 42A.757 provides as follows:
(a) If a defendant is placed on deferred adjudication community supervision after
being convicted of an offense under Section 21.11, 22.011, or 22.021, Penal Code,
at any time during the period of community supervision, the judge may extend the
period of community supervision as provided by this article.
(b) At a hearing at which the defendant is provided the same rights as are provided
to a defendant at a hearing under Article 42A.751(d), the judge may extend the
defendant’s supervision period for a period not to exceed 10 additional years if the
judge determines that:
(1) the defendant has not sufficiently demonstrated a commitment
to avoid future criminal behavior; and
(2) the release of the defendant from supervision would endanger
the public.
(c) A judge may extend a period of community supervision under this article only
once.
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(d) A judge may extend a period of community supervision for a defendant under
both Article 42A.752(a)(2) and this article.
(e) The prohibition in Article 42A.753(a) against a period of community
supervision in a felony case exceeding 10 years does not apply to a defendant for
whom community supervision is increased under this article or under both Article
42A.752(a)(2) and this article.
Id. art. 42A.757.
In this case, on October 26, 2007, the trial court placed appellant on five years’ deferred
adjudication community supervision for aggravated sexual assault of a child. See TEX. CODE
CRIM. PROC. ANN. art. 42A.103(a). Under article 42A.753(a), the court could extend appellant’s
community supervision as frequently as the court determined necessary so long as the period of
community supervision did not exceed ten years. See id. arts. 42A.103(a), 42A.753(a). In fact,
the trial court extended appellant’s community supervision three times to ultimately end on April
26, 2017––six months short of the ten-year allowable period of community supervision (October
26, 2017). The State filed its motion to proceed with an adjudication of guilt on December 6,
2016, and a capias issued that same day, but the hearing was not held until September 6, 2018––
past the discharge date and the expiration of the ten-year limit.
Appellant’s argument is that the trial court did not have jurisdiction to revoke his
community supervision because although the State filed its motion to revoke prior to the April
2017 discharge date, the court convened the hearing after the discharge date and the expiration of
the ten-year limit. Appellant directs our attention to the rules of statutory construction in support
of his argument that, in an aggravated sexual assault of a child case, the only way a defendant may
be revoked after his mandatory supervision period has expired is if he has been extended under
article 42A.757(b). Appellant also argues the trial court did not follow the requirements of that
provision. Therefore, according to appellant, his community supervision period ended on April
26, 2017, and the trial court lacked jurisdiction to revoke his community supervision and
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adjudicate appellant’s guilt on September 6, 2018.
One problem with appellant’s argument, however, is that article 42A.757(b) is not the only
way to extend a defendant’s community supervision. According to article 42A.757(d), a judge
may extend a period of community supervision for a defendant under both article 42A.752(a)(2)
(which in turn refers to article 42A.753) and article 42A.757. See id. art. 42A.757(d). Article
42A.757 is more specialized in that it applies only to certain offenses, but the provisions clearly
refer to and incorporate one another and are intended to work together––each authorizing extension
of an individual’s community supervision. See, e.g., Ex parte Perry, 483 S.W.3d 884, 902 (Tex.
Crim. App. 2016) (under principles of statutory construction we construe statutes according to the
plain meaning of their language, unless that language is ambiguous or the interpretation would
lead to absurd results the legislature could not have intended).
We find nothing in the above statutory provisions that deprives a court of jurisdiction to
revoke a defendant’s community supervision simply because the revocation hearing was held after
the maximum allowable period of community supervision for the offense had expired. Moreover,
according to other provisions in the code of criminal procedure, a trial court retains jurisdiction to
hold a hearing on a State’s motion and to revoke, continue, or modify community supervision
“regardless of whether the period of community supervision imposed on the defendant has
expired” if, as in this case, before the expiration of the community supervision period, the attorney
representing the State filed a motion to revoke community supervision and a capias was issued for
the arrest of the defendant. See id. art. 42A.751(l); see also art. 42A.108(c) (allowing court to
retain jurisdiction to hold hearing and proceed with adjudication of guilt regardless of whether
period of deferred adjudication community supervision imposed on defendant has expired).
Limiting a court’s jurisdiction to situations where the hearing was conducted before the maximum
allowable period of community supervision ended would render these provisions effectively
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meaningless when the defendant was placed on community supervision for the maximum period.
See City of Austin v. Washington, 384 S.W.3d 766, 786 (Tex. 2012) (we interpret statutes to avoid
absurd results)
The trial court in this case accepted appellant’s plea of true to the allegations in the State’s
motion to adjudicate, found the allegations in the motion to adjudicate true, granted the motion,
found appellant guilty, and sentenced him to eighteen years’ imprisonment. The trial court
retained jurisdiction to hold the adjudication hearing and acted within its discretion. We overrule
appellant’s issue.
The judgment of the trial court is affirmed.
/Lana Myers/
LANA MYERS
JUSTICE
Do Not Publish
Tex. R. App. P. 47.2(b)
181108F.U05
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Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
JIMMY PORRAS, Appellant On Appeal from the 291st Judicial District
Court, Dallas County, Texas
No. 05-18-01108-CR V. Trial Court Cause No. F06-19430-U.
Opinion delivered by Justice Myers.
THE STATE OF TEXAS, Appellee Justices Osborne and Nowell participating.
Based on the Court’s opinion of this date, the judgment of the trial court is AFFIRMED.
Judgment entered this 30th day of December, 2019.
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