Shelby Mark Neugebauer v. State

NO. 07-07-0214-CR

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL A

AUGUST 27, 2008

______________________________

SHELBY MARK NEUGEBAUER, APPELLANT

V.

THE STATE OF TEXAS, APPELLEE

_________________________________

FROM THE 47TH DISTRICT COURT OF RANDALL COUNTY;

NO. 9286-A; HONORABLE HAL MINER, JUDGE

_______________________________

Before CAMPBELL and HANCOCK and PIRTLE, JJ.

OPINION

          Appellant, Shelby Mark Neugebauer, seeks to have this Court reform the judgment of the trial court to reflect credit for time served and to delete portions of the judgment limiting his right to appeal “punishment issues” only. For the reasons expressed herein, we vacate the trial court’s Judgment Revoking Probation, as well as its Order Suspending Imposition of Sentence and Placing Defendant on Community Supervision, and remand this cause to the trial court with instructions to enter an order which will notify the Institutional Division of the Texas Department of Criminal Justice that the judgment upon which Appellant is currently being held is the original judgment entered in this cause.

Background

          On May 14, 1997, Appellant was convicted of intoxication manslaughter and punishment was assessed by a jury at eight years confinement and a $10,000 fine. Appellant was immediately taken into custody. Appellant remained confined in the Randall County Jail until he was transferred to the Institutional Division of the Texas Department of Criminal Justice, where he remained incarcerated until he was released on bond pending appeal pursuant to article 44.04 of the Texas Code of Criminal Procedure. Appellant’s conviction was affirmed by this Court on June 16, 1998, in Cause Number 07-97-0213-CR. The mandate of this Court issued on December 30, 1998. An alias capias was issued and Appellant was reincarcerated on February 17, 1999. On April 26, 1999, Appellant filed a motion with the trial court seeking to suspend further imposition of his sentence pursuant to the procedure commonly referred to as “shock probation.” On June 1, 1999, the trial court heard Appellant’s motion and ordered that his sentence, but not the fine, be suspended in favor of community supervision for ten years. In 2007, the State filed a motion to revoke Appellant’s community supervision alleging three violations of the condition that he abstain from alcohol consumption and one violation of the requirement that he pay a supervision fee. On April 24, 2007, Appellant entered a plea of not true to the allegations. Following presentation of testimony and evidence, the trial court revoked Appellant’s community supervision, reformed his sentence to seven and one-half years confinement, with no fine, and remanded him to the custody of the Sheriff for transfer to the Institutional Division of the Texas Department of Criminal Justice, where he remains today.

          Appellant’s original attorney on appeal filed an Anders   brief in support of a motion to withdraw. Having concluded that an arguable ground for appeal existed, this Court abated this appeal and remanded the case to the trial court for the appointment of new counsel. See Neugebauer v. State, No. 07-07-0214-CR, 2008 WL 878425, at *1 (Tex.App.–Amarillo April 2, 2008, no pet.). Appellant’s new appellate counsel also filed an Anders brief in support of a motion to withdraw. Remaining concerned that an arguable ground for appeal existed, this Court concluded that a potential issue concerning the jurisdiction of the trial court at the time it entered the order placing Appellant on community supervision warranted briefing by counsel. We again abated this appeal and remanded the case to the trial court for the appointment of new counsel. See Neugebauer v. State, No. 07-07-0214-CR, 2008 WL 221803, at *2 (Tex.App.–Amarillo May 29, 2008, no pet.). Appellant’s third appellate counsel filed the brief now before this Court raising two issues and addressing the potential issue concerning the jurisdiction of the trial court at the time it entered the order placing Appellant on community supervision. Appellant opines the trial court had jurisdiction when it placed him on “shock probation,” more than two years after the execution of sentence had actually begun, because his incarceration had been interrupted by reason of his release on bond pending final determination of his original appeal. The State filed its brief wherein it agreed with Appellant’s position.

Jurisdiction to Grant Shock Probation

          Where, as here, the record itself raises a question as to the trial court’s subject-matter jurisdiction, we must address that issue, sua sponte, before proceeding to any other issue. State v. Roberts, 940 S.W.2d 655, 657 (Tex.Crim.App. 1996), overruled on other grounds, State v. Medrano, 67 S.W.3d 892, 903 (Tex.Crim.App. 2002) (threshold issue of jurisdiction must be disposed of before addressing substantive issues because subject-matter jurisdiction cannot be conferred by agreement of the parties, but must be vested in a court by constitution or statute). Where there is no jurisdiction, the power of the court to act is “as absent as if it did not exist”; Garcia v. Dial, 596 S.W.2d 524, 527 (Tex.Crim.App. 1980) (quoting Ex parte Caldwell, 383 S.W.2d 587, 589 (Tex.Crim.App. 1964)), and any order or judgment entered by a court lacking jurisdiction is void. Nix v. State, 65 S.W.3d 664, 668 (Tex.Crim.App. 2001); Gallagher v. State, 690 S.W.2d 587, 588-99 n.1 (Tex.Crim.App. 1985).

          For purposes of suspending further imposition of sentence and placing the defendant on shock probation, the jurisdiction of the trial court continues for “180 days from the date the execution of the sentence actually begins.” Tex. Code Crim. Proc. Ann. art. 42.12, § 6(a) (Vernon 2006) (emphasis added). Execution of sentence begins upon the defendant’s incarceration. Bailey v. State, 160 S.W.3d 11, 14 n.2 (Tex.Crim.App. 2004). A trial court order granting shock probation after it has lost jurisdiction is void. Ex Parte Busby, 67 S.W.3d 171, 173 (Tex.Crim.App. 2001), overruled on other grounds, Ex Parte Hale, 117 S.W.3d 866 (Tex.Crim.App. 2003). A void judgment is a “nullity” and can be attacked at any time. Ex Parte Patterson, 969 S.W.2d 16, 19 (Tex.Crim.App. 1998). If the original judgment imposing community supervision is void, then the trial court has no authority to revoke that community supervision, since, with no judgment imposing community supervision, there is nothing to revoke. Nix, 65 S.W.3d at 668.

          Appellant was originally incarcerated on May 14, 1997; therefore, execution of Appellant’s sentence began on May 14, 1997. The trial court’s June 1, 1999 Order Suspending Imposition of Sentence and Placing Defendant on Community Supervision, which purports to grant Appellant shock probation more than two years after execution of Appellant’s sentence actually began, was done at a time when the trial court was without jurisdiction to enter that order and is therefore, on its face, void. See State v. McDonald, 642 S.W.2d 492, 493 (Tex.Crim.App. 1982); State v. Hatten, 508 S.W.2d 625, 628 (Tex.Crim.App. 1974).

Suspension of Execution of Sentence

          Appellant and the State both contend the trial court did have jurisdiction to grant Appellant shock probation because Appellant was not incarcerated for more than 180 days prior to the suspension of sentence, Appellant having been released on bond pending the disposition of his original appeal. While we agree that “execution of the sentence” imposed by the trial court was suspended by reason of Appellant’s release on bond pending final determination of the merits of his original appeal, Houlihan v. State, 579 S.W.2d 213, 217 (Tex.Crim.App. 1979), § 6 of article 42.12 says nothing about suspension of the execution of sentence. The statutory language of § 6 is clear and unambiguous: “the jurisdiction of a court . . . shall continue for 180 days from the date the execution of sentence actually begins.” When read literally, we have no valid reason to interpret it any way other than as continuing the jurisdiction of the court for a period of time commencing “the date the execution of sentence actually begins.”

          The State suggests that Houlihan stands for the proposition that the 180 day time period contemplated by § 6 continued to run until Appellant’s notice of appeal was filed and/or his appeal bond was approved, and then recommenced when he was incarcerated following the conclusion of his original appeal. We disagree. Houlihan is factually distinguishable in a significant way. In Houlihan, the appellant was originally placed on five years community supervision. After his community supervision was revoked, Houlihan gave notice of appeal and he did not begin the actual service of his sentence until after his revocation was affirmed. The Court of Criminal Appeals concluded the trial court had jurisdiction to grant him shock probation because the single, uninterrupted period between the date the execution of sentence actually began and the date the trial court was asked to rule on the appellant’s motion for suspension of the imposition of sentence, did not exceed the applicable statutory period of time.

Issues Pretermitted

          Finally, having determined that the order revoking community supervision is void, we pretermit consideration of Appellant’s issues pertaining to reformation of that order. While we are mindful of those contentions, our disposition of the jurisdictional issue eliminates the necessity that we consider those issues.   

Conclusion

          Having concluded the trial court lacked jurisdiction to place Appellant on community supervision when it did, we vacate the trial court’s Order Suspending Imposition of Sentence and Placing Defendant on Community Supervision. Furthermore, we vacate the trial court’s Judgment Revoking Probation and remand this case to the trial court with instructions to enter an order advising the Institutional Division of the Texas Department of Criminal Justice that the judgment upon which Appellant is currently being held is the original judgment entered in this cause.   

                                                                           Patrick A. Pirtle

                                                                                 Justice

Publish.

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NO. 07-10-0358-CV

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL C

JUNE 3, 2011

______________________________

CHARLES MARTIN BRYANT, APPELLANT

V.

THE STATE OF TEXAS, APPELLEE

_________________________________

FROM THE 47^TH DISTRICT COURT OF RANDALL COUNTY;

NO. 14,621-A; HONORABLE DAN SCHAAP, JUDGE

_______________________________

Before QUINN, C.J., and HANCOCK and PIRTLE, JJ.

MEMORANDUM OPINION

            Appellant, Charles Martin Bryant, an inmate proceeding pro se and in forma pauperis, appeals from the trial court's Order Denying Motion to Reverse and Rescind Order to Pay Court Cost, Fees, and/or Fines entered on January 28, 2011.[1]  By two issues, Appellant maintains (1) the trial court was without plenary power and (2) the trial court's action denied him due process.  We affirm.

Procedural Background

            On August 1, 2003, Appellant was convicted of two counts of indecency with a child[2] and sentenced to ten and twenty years confinement, respectively for each count.  A $2,000 fine was also assessed.  No appeal was filed.  More than six years later, on April 26, 2010, without notice or hearing, the trial court signed and entered a document entitled Order to Withdraw Inmate Funds (Pursuant to TX. Gov't Code, Sec. 501.014(e)).[3] By this withdrawal notification, the trial court directed the Texas Department of Criminal Justice to withhold from Appellant's inmate account the sum of $2,533 for court costs, fines and fees. While the withdrawal notification provides that "court costs, fines and fees have been incurred as represented in the certified Bill of Cost[s]/Judgment attached hereto," the Certified Bill of Costs contained in the clerk's record was not generated until more than four months later on September 13, 2010.  Furthermore, while the original judgment of conviction recites "the State of Texas do have and recover of said Defendant all court costs in this prosecution expended for which execution will issue," those costs were neither orally pronounced at sentencing nor specified in the written judgment.

            On July 6, 2010, Appellant filed a Motion to Reverse and Rescind Order to Pay Court Costs, Fees, and/or Fines in the trial court. On September 10, 2010, prior to a ruling being issued on that motion, Appellant filed a pro se notice of appeal challenging the trial court's withdrawal notification. By order dated October 5, 2010, this Court found Appellant's notice of appeal to be premature because no final, appealable order had been entered.  See Bryant v. State, No. 07-10-00358-CV, 2010 Tex. App. LEXIS 8059, at *4-5 (Tex.App.--Amarillo Oct. 5, 2010, no pet.).  The appeal was abated to allow Appellant the opportunity to obtain an appealable order.

            Then, by order dated January 28, 2011, the trial court denied Appellant's pending motion, resulting in an appealable order. See Williams v. State, 332 S.W.3d 694, 698 (Tex.App.--Amarillo 2011, pet. denied).  See also Ramirez v. State, 318 S.W.3d 906, 908 (Tex.App.--Waco 2010, no pet.) (holding that "[o]nly when [the withdrawal notification is] properly challenged and denied relief is there a trial court order that is final from which the inmate . . . can appeal"); Jewell v. State, No. 06-10-00114-CV, 2011 Tex. App. LEXIS 3256, at *1 (Tex.App.--Texarkana April 28, 2011, no pet. h.).

Standard of Review

We review a trial court's decision whether to grant or deny a challenge to a withdrawal notification under an abuse of discretion standard.  Williams, 332 S.W.3d at 698.  A trial court abuses its discretion when it acts "without reference to any guiding rules and principles."  Quixtar Inc. v. Signature Mgmt. Team, LLC, 315 S.W.3d 28, 31 (Tex. 2010) (quoting Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex. 1985)); Howell v. State, 175 S.W.3d 786, 792 (Tex.Crim.App. 2005); Montgomery v. State, 810 S.W.2d 372, 380 (Tex.Crim.App. 1990).  Furthermore, a trial court abuses its discretion if "it reaches a decision so arbitrary and unreasonable as to amount to a clear and prejudicial error of law."  Johnson v. Fourth Court of Appeals, 700 S.W.2d 916, 917 (Tex. 1985).

Analysis

Issue One - Plenary Jurisdiction

            By his first issue, Appellant challenges the trial court's plenary power to order withdrawals from his inmate account pursuant to section 501.014(e).  Appellant reasons that because his criminal conviction was rendered in 2003, the trial court lacks jurisdictional authority to modify his judgment of conviction.  Appellant, however, confuses the trial court's plenary jurisdiction to modify the judgments rendered in his criminal cases with the court's original jurisdiction to render a decision in a newly initiated civil proceeding.  In Harrell v. State, the Texas Supreme Court held that proceedings under section 501.014(e) are civil proceedings, not part of the underlying criminal case.  Harrell v. State, 286 S.W.3d 315, 316 (Tex. 2009). This Court has analogized the filing of a withdrawal notification to the filing of a civil proceeding for the forfeiture of a bond in a criminal case.  See Williams, 332 S.W.3d at 696.  In a bond forfeiture proceeding, a trial court acquires jurisdiction to adjudicate the matter of enforcing the principal's bond obligation to the state by the filing of a judgment nisi.  Burgemeister v. Anderson, 113 Tex. 495, 259 S.W. 1078 (1924).  Similarly, we find that a trial court acquires original jurisdiction to adjudicate disputes concerning the withdrawal of funds from an inmate account by the filing of a withdrawal notification.  Furthermore, Appellant invoked the jurisdiction of the trial court by the filing of his motion.  Because the trial court had original subject matter jurisdiction to resolve Appellant's motion, his first issue is overruled.

Issue Two - Due Process

            By his second issue, Appellant questions whether he received due process.  In Harrell, the Texas Supreme Court held that a withdrawal notification directing prison officials to withdraw money from an inmate account pursuant to section 501.014(e) does not violate due process and is, therefore, constitutional when the inmate has "received some measure of due process."  286 S.W.3d at 320.  In determining whether Harrell was accorded constitutional due process, the Court concluded that because Harrell had received notice of the withdrawal (a copy of the withdrawal notification) and an opportunity to contest the dollar amount and statutory basis of the withdrawal (a motion to rescind or modify the withdrawal notification),^[4] he received everything that due process requires. Id. at 321.  The Court added that neither notice nor an opportunity to be heard need occur before the issuance of a withdrawal notification.  Id.  This Court has interpreted Harrell as saying that due process is satisfied when an inmate has been given the opportunity to contest the dollar amount and statutory basis of a section 501.014(e) withdrawal by way of a motion to modify, correct or rescind the withdrawal notification.  See Bryant, 2010 Tex. App. LEXIS 8059, at *4-5; Williams v. State, 322 S.W.3d 301 (Tex.App.--Amarillo 2010, no pet.). 

            The withdrawal notification at issue instructed the Texas Department of Criminal Justice to withdraw the sum of $2,533 from Appellant's inmate account.  Of this sum, $2,000 was for the fine assessed as a part of Appellant's punishment and $533 was for court fees and costs.  Appellant has not challenged the statutory basis of those fees and costs and we find that they are legislatively mandated.  No assessment was made for court-appointed attorney's fees.  Because legislatively mandated court fees and costs are not punitive in nature, they do not need to be included in the oral pronouncement of sentence or in the written judgment in order to be imposed upon a convicted defendant.  See Weir v. State, 278 S.W.3d 364, 367 (Tex.Crim.App. 2009). Furthermore, fines and legislatively mandated fees and costs are properly collectable by means of a withdrawal notification regardless of a defendant's ability to pay.  See Williams, 332 S.W.3d at 700. 

            Because Appellant was been afforded the opportunity to contest the dollar amount and statutory basis of the section 501.014(e) withdrawal notification at issue, we find that he has been accorded adequate due process.  Accordingly, we overrule his second issue.

Conclusion

The trial court's Order Denying Motion to Reverse and Rescind Order to Pay Court Cost, Fees, and/or Fines is affirmed.

                                                                                    Patrick A. Pirtle

                                                                                          Justice

---

[1]Although this order is dated January 29, 2010, because the genesis of this controversy was the entry of a document entitled Order to Withdraw Inmate Funds (Pursuant to TX. Gov't Code, Sec. 501.014(e), entered on April 26, 2010, we find that the order the subject of this appeal was actually entered on January 28, 2011.  That finding is also consistent with the court clerk's filing stamp.

[2]Appellant was convicted in Count I of indecency by exposure and in Count II of indecency by contact.  Tex. Penal Code Ann. §§ 21.11(a)(2)(A) and 21.11(a)(1) (West Supp. 2010).

[3]This document is not an "order" in the traditional sense of a court order, judgment, or decree issued after notice and hearing in either a civil or criminal proceeding.  The statute referenced by that document, section 501.014(e) of the Texas Government Code, describes the process as a "notification by a court" directing prison officials to withdraw sums from an inmate's account, in accordance with a schedule of priorities set by the statute, for the payment of "any amount the inmate is ordered to pay by order of the court." See Tex. Gov't Code Ann. § 501.014(e) (West Supp. 2010).  See also Harrell v. State, 286 S.W.3d 315, 316 n.1 (Tex. 2009).  Therefore, rather than refer to that document as an order, we prefer to use the statutory term "withdrawal notification" in order to avoid confusion with the underlying court order that actually is the subject of this appeal.  For convenience, sections of the Texas Government Code will subsequently be cited as "section __" or "Section __".

[4]The trial court denied Harrell's Motion to Rescind.  See Harrell v. State, Nos. 07-06-0469-CR, 07-06-0470-CR, 2007 Tex. App. LEXIS 6416, at *2 (Tex.App.--Amarillo Aug. 13, 2007), rev'd, 286 S.W.3d 315 (Tex. 2009).