MODIFY and AFFIRM; and Opinion Filed December 11, 2013.




                                         S   In The
                               Court of Appeals
                        Fifth District of Texas at Dallas
                                      No. 05-11-00947-CR
                                      No. 05-11-00948-CR

                            LAWRENCE REYNOLDS, Appellant
                                         V.
                             THE STATE OF TEXAS, Appellee

                      On Appeal from the 194th Judicial District Court
                                   Dallas County, Texas
                     Trial Court Cause Nos. F07-38808-M, F07-38809-M

                                         OPINION
                          Before Justices Bridges, Fillmore, and Lewis
                                   Opinion by Justice Lewis
       Appellant Lawrence Reynolds appeals the revocation of his community supervision and

imposition of a nine-year prison sentence.      Reynolds also contends that he is entitled to

additional back-time credit and that the trial court erroneously imposed a $300 fine in one of its

judgments. We modify the trial court’s judgments and, as modified, affirm them.

                                          Background

       On July 13, 2007, appellant pleaded guilty to two counts of burglary of a habitation.

Pursuant to a plea agreement, the trial court assessed fines in each case of $300, deferred

adjudication of appellant’s guilt, and placed him on community supervision for a period of seven

years. Later that same year, the State moved to revoke his probation and to adjudicate guilt;

appellant pleaded true to the State’s allegations of probation violations. In judgments dated
October 29, 2007, the trial court adjudicated appellant’s guilt and—according to the terms of a

new plea agreement—sentenced him to ten years’ imprisonment in each case. Immediately

above the judge’s signature on both judgments is the following notice:

                Furthermore, the following special findings or orders apply:
         DEFENDANT SENTENCE[D] TO SHOCK PROBATION FOR 180 DAYS.

Appellant was incarcerated until March 5, 2008. On that date, the trial court’s docket sheet

indicates appellant’s sentence was suspended and he was placed on community supervision for a

term of seven years. The State filed a motion to revoke this community supervision in February

2009, and appellant pleaded true to the alleged violations, but the trial court continued his

probation. The State filed another motion to revoke on April 29, 2011, and again appellant

pleaded true to the alleged violations.     This time, the trial court did revoke appellant’s

community supervision. In judgments dated June 16, 2011, the court assessed his punishment at

nine years’ imprisonment in each of the two cases and a fine of $300 in cause number F-

0738809-M.

                         Revocation of Community Supervision

         In his first issue, appellant contends the trial court erred by revoking his community

supervision because the record does not contain a judgment or order suspending the ten-year

sentence of imprisonment that was imposed when his guilt was adjudicated in 2007, and placing

him on community supervision. Appellant argues that article 42.01 of the code of criminal

procedure requires such a judgment or order. According to appellant, because he was not

properly placed on community supervision, the State could not effectively revoke him from

community supervision. Our review of an order revoking community supervision is limited to

abuse of the trial court’s discretion. Rickels v. State, 202 S.W.3d 759, 763 (Tex. Crim. App.

2006).



                                              –2–
       Appellant does not cite authority for his argument that a separate judgment or order must

be signed to effectuate suspension of his sentence. The trial court’s judgments of October 29,

2007, specifically placed appellant on shock probation in a “special order” that was part of both

judgments. When a trial court grants shock probation, the defendant serves a portion of his

sentence, and the trial court—by granting probation after this “shock”—suspends the further

execution of the defendant’s sentence. See Amado v. State, 983 S.W.2d 330, 331–32 (Tex.

App.—Houston [1st Dist.] 1998, pet. ref’d).

       Moreover, the record establishes that the trial court suspended appellant’s sentence and

placed him on probation on March 5, 2008. Docket notations on that date, in both cases, state

appellant’s sentence was suspended and he was placed on community supervision for seven

years. In February 2009, the State initiated proceedings to revoke this probation; appellant

participated in those proceedings and pleaded true to the alleged violations. Both the 2009

motion to revoke and the 2011 motion to revoke recite that appellant was legally placed on

community supervision for a period of seven years on March 5, 2008. In the 2011 revocation

proceeding, appellant signed a judicial confession stating he was placed on community

supervision for seven years on March 5, 2008. And at the hearing on the State’s 2011 motion to

revoke, the following exchange took place:

       THE COURT: Mr. Reynolds, on July 13th, 2007, you entered into a plea of
       guilty for the two offenses of burglary of a habitation. You were placed on seven
       years deferred probation and assessed a fine in each case in the amount of $300.

       Do you recall that taking place?

       THE DEFENDANT: Yes, sir.

       THE COURT: Subsequent to that date on October 29th, you came before this
       Court on a motion to proceed. You were sentenced to ten years confinement in the
       Institutional Division of the Texas Department of Criminal Justice in each case
       and on March 5th, 2008, that sentence was suspended and you were placed on ten
       years confinement in the Institutional Division of the Texas Department of
       Criminal Justice, but you were given a seven-year probation in each case.
                                              –3–
       Do you recall that taking place?

       THE DEFENDANT: Yes, sir, I do.

The trial court addressed the following remarks to appellant:

       Mr. Reynolds, back in October 2007 I sent you to the pen for ten years to give
       you an idea what it would be like if you were down there permanently. I brought
       you back on probation on March 2008 as we discussed earlier and gave you
       another probation. It was with my hopes when I did that, that you would finally
       wake up and see that this Court takes probation seriously as well.

We conclude all parties understood and acted on the understanding that appellant’s sentence had

been suspended and he had been placed on probation on March 5, 2008.

       Appellant relies on cases that vacate the revocation of shock probation as well as the

order placing the defendant on shock probation. See, e.g., Tamez v. State, 620 S.W.2d 586 (Tex.

Crim. App. 1981); Rice v. State, 971 S.W.2d 533 (Tex. App.—Dallas 1997, no writ). In each of

those cases, the trial court’s attempt to place the defendant on shock probation was not timely.

Because the trial court lacked jurisdiction to place the defendant on shock probation when it did,

both orders—the placement order and the revocation order—were void. See Tamez, 620 S.W.2d

at 587–88; Rice, 971 S.W.2d at 535–36. In this case, however, the trial court properly placed

appellant on community service within 180 days of the date the execution of his sentence began.

See TEX. CODE CRIM. PROC. ANN. Art. 42.12 § 6(a) (West Supp. 2013). Appellant is not entitled

to have his community supervision orders vacated for lack of jurisdiction.

       Finally, we conclude that even if the trial court did err in its method of placing appellant

on shock probation, appellant is not now entitled to challenge the court’s order as void. “Even if

the court had erroneously granted appellant shock probation, appellant may not complain of

defects in the court’s leniency after accepting the benefit of that leniency.” Henderson v. State,

758 S.W.2d 694, 696 (Tex. App.—Austin 1988, pet. dism’d); see also Tamez, 620 S.W.2d at

590.


                                               –4–
       We find no abuse of discretion in the trial court’s revocation of appellant’s community

supervision. We overrule his first issue.

                                      Credit for Back Time

       In his second issue, appellant contends the trial court did not credit all of the back time to

which he was entitled. We have concluded the trial court did not err in revoking appellant’s

shock probation; thus, we reject appellant’s request for back-time credit during that probation

period, which he characterizes as “erroneous release.” However, appellant contends alternatively

that he was not given back-time credit for all of the “shock” time he served following

adjudication of his guilt. The trial court’s judgments award back time for the following periods

of time:

       04/12/2007 to 07/13/2007,

       10/18/2007 to 10/30/2007,

       02/19/2008 to 03/07/2008,

       03/03/2009 to 04/09/2009, and

       04/28/2011 to 06/16/2011.

The judgments adjudicating appellant’s guilt indicate his sentence of ten years’ confinement was

imposed in each case on October 29, 2007. The record establishes appellant was brought to

court and his sentence was suspended on March 5, 2008. We conclude appellant was entitled to

back-time credit for this entire period of incarceration. See Padilla v. State, 697 S.W.2d 522,

524 (Tex. App.—El Paso 1985, no pet.).

       Accordingly, we sustain appellant’s second issue in part, and we modify the judgments in

both cases to award back time for the following periods of time:




                                                –5–
           04/12/2007 to 07/13/2007,

           10/18/2007 to 03/07/2008,

           03/03/2009 to 04/09/2009, and

           04/28/2011 to 06/16/2011.

                                                           Imposition of Fine

           In his third issue, appellant argues the trial court improperly imposed a fine when it

revoked his community supervision in trial court cause number F07-38809-M. The State argues

the imposition of that fine is correct and that an equivalent fine should have been imposed in

cause number F07-38808-M.

           In the trial court’s Orders of Deferred Adjudication, it imposed a $300 fine in each case.

In the Judgments Adjudicating Guilt, the trial court did not impose fines in either case: the

adjudicating judgments state the terms of the plea bargain (“10 YEARS PENITENTIARY FINE

$0.00”) and the relevant portion of the sentence (“Fine: $N/A”). 1 And when the trial court

sentenced appellant during the revocation proceedings, it did not impose a fine in either case.

           Article 42.12 speaks specifically to sentencing after revocation:

           If community supervision is revoked after a hearing under Section 21 of this
           article, the judge may proceed to dispose of the case as if there had been no
           community supervision, or if the judge determines that the best interests of
           society and the defendant would be served by a shorter term of confinement,
           reduce the term of confinement originally assessed to any term of confinement not
           less than the minimum prescribed for the offense of which the defendant was
           convicted.

TEX. CRIM. PROC. CODE ANN. art. 42.12, §23(a). Although this statute expressly permits changes

to the length of a defendant’s “term of confinement” from that originally assessed, it makes no

provision for changes to the amount of any fine imposed in the original sentence. See id.


     1
       We reject the State’s argument that the boilerplate language ordering appellant “to pay all fines, court costs, and restitution as indicated
above” refers to the recitation of a fine imposed at deferral, rather than to the recitation in that very judgment that no fine would be imposed upon
adjudication of guilt.



                                                                       –6–
Instead, the statute contemplates that to the extent any fine is involved, the trial court is to

“dispose of the case as if there had been no community supervision.” Id.; see also Amado, 983

S.W.2d at 332 (“It follows that revocation of shock probation simply reinstates the execution of

the imposed sentence.”). If there had been no community supervision in this case, the sentence

imposed would have been ten years’ confinement with no fine in either case. The trial court was

authorized to reduce that term of confinement to nine years upon revocation, but it was not

authorized to add a fine that was not part of the original sentence.

         The State argues the fines pronounced in the trial court’s orders deferring adjudication

should be carried forward in this case. We disagree. “[W]hen an accused receives deferred

adjudication, no sentence is imposed.” Taylor v. State, 131 S.W.3d 497, 502 (Tex. Crim. App.

2004).    When the trial court subsequently adjudicates guilt, its order sets aside the order

deferring adjudication and any fine imposed by the deferral order. See id.

         We sustain appellant’s third issue. We modify the trial court’s June 16, 2011 Judgment

Revoking Community Supervision in cause number F-0738809-M to delete the $300 fine

imposed in that judgment.

                                            Conclusion

         As modified, we affirm the judgments of the trial court.




                                                      /David Lewis/
                                                      DAVID LEWIS
                                                      JUSTICE

Do Not Publish
TEX. R. APP. P. 47

110947F.U05




                                                –7–
                                        S
                               Court of Appeals
                        Fifth District of Texas at Dallas
                                      JUDGMENT

LAWRENCE REYNOLDS, Appellant                        On Appeal from the 194th Judicial District
                                                    Court, Dallas County, Texas
No. 05-11-00947-CR         V.                       Trial Court Cause No. F07-38808-M.
                                                    Opinion delivered by Justice Lewis.
THE STATE OF TEXAS, Appellee                        Justices Bridges and Fillmore participating.

        Based on the Court’s opinion of this date, the judgment of the trial court is MODIFIED
as follows:
            Appellant Lawrence Reynolds is awarded back time for the following periods
            of time:
                      04/12/2007 to 07/13/2007,
                      10/18/2007 to 03/07/2008,
                      03/03/2009 to 04/09/2009, and
                      04/28/2011 to 06/16/2011.

As MODIFIED, the judgment is AFFIRMED.


Judgment entered this 11th day of December, 2013.




                                                    /David Lewis/
                                                    DAVID LEWIS
                                                    JUSTICE




                                              –8–
                                         S
                               Court of Appeals
                        Fifth District of Texas at Dallas
                                       JUDGMENT

LAWRENCE REYNOLDS, Appellant                         On Appeal from the 194th Judicial District
                                                     Court, Dallas County, Texas
No. 05-11-00948-CR         V.                        Trial Court Cause No. F07-38809-M.
                                                     Opinion delivered by Justice Lewis.
THE STATE OF TEXAS, Appellee                         Justices Bridges and Fillmore participating.

        Based on the Court’s opinion of this date, the judgment of the trial court is MODIFIED
as follows:
            (1) Appellant Lawrence Reynolds is awarded back time for the following
                periods of time:
                       04/12/2007 to 07/13/2007,
                       10/18/2007 to 03/07/2008,
                       03/03/2009 to 04/09/2009, and
                       04/28/2011 to 06/16/2011.

           (2) The $300 fine imposed in this case is deleted.

As MODIFIED, the judgment is AFFIRMED.


Judgment entered this 11th day of December, 2013.




                                                     /David Lewis/
                                                     DAVID LEWIS
                                                     JUSTICE




                                               –9–
