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
MAY 29, 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.
ABATEMENT AND REMAND
Appellant, Shelby Mark Neugebauer, seeks to overturn the trial court’s decision to
revoke its previous order granting him shock probation. For the reasons expressed herein,
we abate and remand this cause to the trial court for appointment of new counsel.
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. The
execution of Appellant’s sentence began immediately.1 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. On April 26, 1999, Appellant filed a motion with the
trial court seeking to suspend further imposition of his sentence pursuant to article 42.12,
§ 6 of the Texas Code of Criminal Procedure, under 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 for three violations of the condition that he abstain from alcohol
consumption and one violation of the requirement that he pay a supervision fee. Appellant
entered a plea of not true to the allegations. Following presentation of testimony and
evidence, the trial court revoked Appellant’s community supervision and sentenced him to
seven and one-half years confinement.
Appellant’s original attorney on appeal filed an Anders 2 brief in support of a motion
to withdraw. Having concluded that an arguable ground for appeal existed, on April 2,
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The Appellant was incarcerated on May 14, 1997. The Appellant remained
confined in either the Randall County Jail or the Institutional Division of the Texas
Department of Criminal Justice until he was released on bond pending appeal pursuant to
Art. 44.04, Texas Code of Criminal Procedure. The date of release does not appear in the
record before us.
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Anders v. California, 386 U.S. 738, 87 S. Ct. 1396, 18 L. Ed. 2d 493 (1967).
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2008, this Court abated this appeal and remanded the case to the trial court for the
appointment of new counsel. On May 21, 2008, Appellant’s new counsel on appeal also
filed an Anders brief in support of a motion to withdraw. The State did not respond to the
original Anders brief, and the time for filing a response to the second Anders brief has not
expired.
When faced with an Anders brief, an appellate court has a duty to conduct a full
examination of the proceeding, and if its independent inquiry reveals a nonfrivolous or
arguable ground for appeal, it must abate the proceeding and remand the case to the trial
court so that new counsel can be appointed to brief the issues. See Penson v. Ohio, 488
U.S. 75, 109 S. Ct. 346, 102 L. Ed. 2d 300 (1988); Bledsoe v. State, 178 S.W.3d 824
(Tex.Crim.App. 2005).
As we pointed out in our opinion of April 2, 2008, as then in effect, 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 2004)
(emphasis added). Execution of sentence begins upon the defendant’s incarceration.
Bailey v. State, 160 S.W.3d 11, 14, fn.2 (Tex.Crim.App. 2004). Appellant was originally
incarcerated on May 14, 1997; therefore, execution of Appellant’s sentence began on May
14, 1997. The trial court’s grant of shock probation on June 1, 1999, clearly more than 180
days after execution of Appellant’s sentence actually began, was arguably done at a time
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when the trial court was without jurisdiction to enter that order. 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). A trial court order granting shock probation after it has lost
jurisdiction is void. Ex Parte Busby, 67 S.W.3d 171 (Tex.Crim.App. 2001) (overruled on
other grounds, Ex Parte Hale, 117 S.W.3d 866 (Tex.Crim.App. 2003)).
Appellant’s new appellate counsel opines that the trial court did have jurisdiction
because Appellant was not incarcerated for more than 180 days prior to the suspension
of sentence, the Appellant having been released on bond pending Appellant’s original
appeal on the merits of his conviction. Appellant’s new appellate counsel, however,
ignores the potential argument that if the jurisdiction of the trial court ended “180 days from
the date the execution of the sentence actually begins”, then the trial court’s jurisdiction
ended on November 10, 1997, more than 18 months prior to entry of the June 1, 1999,
Order Suspending Imposition of Sentence; that if the trial court jurisdiction ended prior to
entry of the order granting shock probation, then the order was void; and that if the order
granting shock probation was void, then any order purporting to revoke that probation
would be void. We conclude that issue warrants briefing.
Therefore, having concluded that an arguable ground for appeal still exists, we grant
Appellant’s counsel’s motion to withdraw, abate this proceeding, and again remand this
cause to the trial court for the appointment of new counsel. See Bledsoe, 178 S.W.3d at
827; Stafford v. State, 813 S.W.2d 503, 511 (Tex.Crim.App. 1991). We direct the trial
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court to appoint new counsel to represent Appellant on appeal by June 30, 2008. The trial
court shall furnish the name, address, telephone number, and state bar number of new
counsel to the clerk of this Court immediately after the appointment of counsel is ordered.
Finally, the trial court shall cause its order appointing counsel to be included in a
supplemental clerk’s record which shall be filed with the Clerk of this Court by July 14,
2008. Appellant’s brief shall be due forty-five days from the date of the trial court’s
appointment of new counsel. All other appellate deadlines shall be in accordance with the
Texas Rules of Appellate Procedure.
It is so ordered.
Per Curiam
Do not publish.
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