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
APRIL 2, 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 March 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.
In presenting this appeal, counsel has filed an Anders2 brief in support of a motion
to withdraw. The Anders brief was filed on October 24, 2007. Notwithstanding four
extensions of time in which to file a pro se response, Appellant has failed to do so.
1
The record before us indicates that Appellant was incarcerated on May 14, 1997.
The record does not reflect whether or not Appellant was released during the pendency
of his original appeal.
2
Anders v. California, 386 U.S. 738, 87 S. Ct. 1396, 18 L. Ed. 2d 493 (1967).
2
Instead, on March 24, 2008, Appellant notified this Court by letter that he has requested
information from the District Clerk to obtain court-appointed counsel to assist him in
preparation of his response. The State has not responded to appellate counsel’s Anders
brief.
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 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). In this case, the 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
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
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(Tex.Crim.App. 1974). Therefore, having concluded that an arguable ground for appeal
exists, we grant Appellant’s counsel’s motion to withdraw, abate this proceeding, and
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 court to appoint new counsel to represent Appellant on appeal by April 14, 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 April 24,
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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