             IN THE COURT OF CRIMINAL APPEALS
                         OF TEXAS
                                      NO. PD-1187-07



                               IVAN JOHNSON, Appellant

                                              v.

                                 THE STATE OF TEXAS

           ON APPELLANT’S PETITION FOR DISCRETIONARY REVIEW
                   FROM THE THIRD COURT OF APPEALS
                             LLANO COUNTY

        K EASLER, J., filed a dissenting opinion in which K ELLER, P.J., and H ERVEY,
J., joined.

                                DISSENTING OPINION

       I strongly disagree with the decision rendered by the majority. First, the plain

language of Article 42.03, Section 1(b)—which we are bound to follow unless ambiguity or

absurdity arises1 —reveals that the statute’s applicability to community supervision is not, by

any means, a foregone conclusion.2


       1
           Boykin v. State, 818 S.W.2d 782, 785 (Tex. Crim. App. 1991).
       2
           Speth v. State, 6 S.W.3d 530, 532 (Tex. Crim. App. 1999).
                                                     JOHNSON DISSENTING OPINION—2

       Next, even assuming that Article 42.03, Section 1(b) does apply, I believe that the trial

judge did not err by imposing 180 days confinement as a condition of Ivan Johnson’s

community supervision immediately after hearing the victim allocutions. Article 42.12,

Section 11(a) allows a trial judge to “alter or modify” the conditions of a defendant’s

community supervision “at any time[] during the period of [] supervision.” 3 Section 12(a)

of Article 42.12 authorizes a trial judge, in felony cases, to impose, as a condition of

community supervision, a term of confinement not exceeding 180 days.4 A trial judge may

order confinement as a condition of supervision when “placing the defendant on supervision

or at any time during the supervision period.” 5 Article 42.03, Section 1(b) guards against

bias at sentencing by prohibiting a judge from hearing victim allocutions before imposing

conditions of supervision.6 But Sections (11)(a), 12(a), and 12(c) to Article 42.12 afford the

judge broad discretion in determining exactly when to impose a term of confinement. These

statutes can be reconciled. The various provisions that govern when a judge can impose

conditions of community supervision under Article 42.12 are specific statutes that trump the




       3
        T EX. C ODE C RIM. P ROC. A NN. art. 42.12 § 11(a); see also T EX. C ODE C RIM.
P ROC. A NN. art. 42.12 § 10(a).
       4
           T EX. C ODE C RIM. P ROC. A NN. art. 42.12 § 12(a).
       5
           T EX. C ODE C RIM. P ROC. A NN. art. 42.12 § 12(c).
       6
           T EX. C ODE C RIM. P ROC. A NN. art. 42.03 § 1(b).
                                                  JOHNSON DISSENTING OPINION—3

general rule set out in Article 42.03, Section 1(b) when applicable.7

       Now I turn to the majority’s reasoning and holding. First, the majority contends that,

in Aguilera v. State,8 I, joined by three members of the Court, stated that a trial judge errs

when changing, altering, or modifying a sentence or the conditions of community supervision

immediately after a victim allocution. Aguilera addressed the propriety of a trial judge’s

decision to resentence a defendant to a lesser term of imprisonment immediately after the

victim allocution was read but before the judge adjourned for the day.9 Aguilera did not

address the specific provisions that apply to the conditions of community supervision. Those

provisions are what distinguish this case from Aguilera, and this crucial distinction leads me

to urge a different result in this case.

       Furthermore, I cannot understand how the members of the Court, who comprised the

majority in Aguilera, can now champion the majority’s position today. The same members

of the Court, who said that it is permissible for a judge to lower a defendant’s sentence,10

now disapprove of a judge’s decision to add a term of community supervision under similar

circumstances. The majority reaches the result today, presumably, based on the view that




       7
         See Ex parte Wilkinson, 641 S.W.2d 927, 931 (Tex. Crim. App. 1982)
(discussing the doctrine of in pari materia).
       8
            165 S.W.3d 695 (Tex. Crim. App. 2005).
       9
            Id. at 696.
       10
            Id. at 696-703.
                                                    JOHNSON DISSENTING OPINION—4

Article 42.03, Section 1(b) was not raised by the State in Aguilera.11 I disagreed with that

view when Aguilera was issued; the statute was directly implicated in considering the trial

judge’s plenary power to modify the defendant’s sentence.12 In the words of Justice Jackson,

the majority “changed positions as nimbly as if dancing a quadrille.” 13             I find this

contradictory stance to be ludicrous.

       Finally, the majority contends that the trial judge did not alter or modify the conditions

of community supervision because the 180-day confinement term was part of the original

judgment, which was signed the same day Johnson was placed on supervision. In making

this argument, the majority ignores our case law that says a trial judge’s oral pronouncement

of a sentence, or suspension of a sentence, controls over a written judgment.14 Here, the trial

judge accepted the jury’s recommendation to suspend Johnson’s five-year sentence and place

him on community supervision. The trial judge told Johnson, in open court, that he was

imposing the standard conditions of probation and requiring Johnson to register as a sex

offender. After this, the judge heard the victim allocutions. The judge then imposed two

additional conditions—that Johnson sell his home and that he serve 180 days in jail. Johnson

agreed to the first but objected to the second. By adding the 180-day term of confinement



       11
            Id. at 699 (Cochran, J., concurring).
       12
            Id. at 706 (Keasler, J., dissenting).
       13
            Orloff v. Willoughby, 345 U.S. 83, 87 (1953).
       14
            Rodarte v. State, 860 S.W.2d 108, 109-10 (Tex. Crim. App. 1993).
                                               JOHNSON DISSENTING OPINION—5

to the conditions of Johnson’s supervision, the judge altered or modified the conditions

previously announced.

      Based on the foregoing reasons, I dissent to the Court’s judgment.


DATE FILED: June 17, 2009
PUBLISH
