                                                                      PD-0632-16
                                                     COURT OF CRIMINAL APPEALS
                                                                     AUSTIN, TEXAS
                                                   Transmitted 6/20/2016 10:51:54 AM
                                                      Accepted 6/21/2016 3:19:18 PM
                                                                      ABEL ACOSTA
                     PD-0632-16                                               CLERK



                      TO THE

COURT OF CRIMINAL APPEALS
                     OF TEXAS
                   ***************

           DAVID NEAL DUNCAN
                                     Petitioner,
                         v.

           THE STATE OF TEXAS
                                     Respondent.
                   ***************
 PETITION FOR DISCRETIONARY REVIEW IN CAUSE NUMBER
  07-16-00060-CR FROM THE SEVENTH COURT OF APPEALS,
         AND IN CAUSE NUMBER 22,989-A FROM THE
         47th DISTRICT COURT OF RANDALL COUNTY
                   ***************

PETITION FOR DISCRETIONARY REVIEW
                   ***************
                              John Bennett
                              Post Office Box 19144
                              Amarillo, TX 79114
   June 21, 2016              Telephone: (806) 282-4455
                              Fax: (806) 398-1988
                              AppealsAttorney@gmail.com
                              State Bar No. 00785691
                              Attorney pro bono for the Petitioner

     THE PETITIONER REQUESTS ORAL ARGUMENT
       IDENTITY OF JUDGE, PARTIES AND COUNSEL

Trial Court Judge
The Hon. Abe Lopez

Petitioner
David Neal Duncan

      Trial Counsel:       Darrell R. Carey, Esq. (State Bar No. 03791700)
                           300 Fifteenth Street
                           Canyon, Texas 79015
                           Telephone: (806) 655-4529

                           William E. Kelly, Esq. (State Bar No. 11240480)
                           P.O. Box 533
                           Canyon, Texas 79015
                           Telephone: (806) 655-7118

      Appellate Counsel:   John Bennett, Esq. (State Bar No. 19799300)
                           P.O. Box 19144
                           Amarillo, Texas 79114
                           Telephone: (806) 282-4455

Appellee
      The State of Texas

      Trial Counsel:       James A. Farren, Esq. (State Bar No. 06839400)
                           Randall County Criminal District Attorney
                           2309 Russell Long Boulevard, Suite 120
                           Canyon, Texas 79015
                           Telephone: (806) 468-5570

      Appellate Counsel:   Warren L. Clark, Esq. (State Bar No. 04300500)
                           Assistant Criminal District Attorney
                           Randall County
                           2309 Russell Long Boulevard, Suite 120
                           Canyon, Texas 79015
                           Telephone: (806) 468-5570
                                    2
                                     TABLE OF CONTENTS
Identity of Judge, Parties and Counsel..................................................................2

Index of Authorities ..............................................................................................3

Statement Regarding Oral Argument ...................................................................5

Statement of the Case............................................................................................6

Statement of Procedural History ...........................................................................6

Question Presented for Review.............................................................................6

                 May an order modifying community supervision be appealed
         if it imposes incarceration not previously envisioned?

Argument ..............................................................................................................7

Prayer for Relief ....................................................................................................9

Certificate of Compliance ...................................................................................10

Certificate of Service ..........................................................................................10

Court of Appeals’ Majority Opinion ........................................ following page 10

Court of Appeals’ Dissenting Opinion ....................... following majority opinion




                                                           3
                              INDEX OF AUTHORITIES

Constitutional Provisions

U.S. CONST. amend. XIV (West 2015) ..............................................................7

TEX. CONST. art. I, § 19 (Vernon supp. 2015)...................................................7


Cases

Basaldua v. State, 558 S.W.2d 2 (Tex.Crim. App. 1977) ....................................7

Gagnon v. Scarpelli, 411 U.S. 778, 93 S.Ct. 1756,

        36 L.Ed.2d 656 (1973)................................................................................8

Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593,

        33 L.Ed.2d 484 (1972)................................................................................8




                                                      4
                                   PD-0632-16


                                    TO THE

COURT OF CRIMINAL APPEALS
                                  OF TEXAS
                                ***************

                 DAVID NEAL DUNCAN
                                                    Petitioner,
                                        v.

                 THE STATE OF TEXAS
                                                    Respondent.
                                ***************
    PETITION FOR DISCRETIONARY REVIEW IN CAUSE NUMBER
      07-16-00060-CR FROM THE SEVENTH COURT OF APPEALS
            AND IN CAUSE NUMBER 22,989-A FROM THE
            47th DISTRICT COURT OF RANDALL COUNTY
                                ***************

PETITION FOR DISCRETIONARY REVIEW
                                ***************




To the Honorable Judges of the Court of Criminal Appeals:

      COMES NOW David Neal Duncan, petitioner in the above cause, and

submits this petition in support of his request for remand of his case to the court

of appeals so his appeal may proceed.
                                         5
         STATEMENT REGARDING ORAL ARGUMENT

       Since the applicable law is unsettled and the claim is of constitutional

magnitude, oral argument is requested.



                      STATEMENT OF THE CASE

       Pursuant to a plea agreement, in 2012 the appellant was adjudged guilty

and sentenced to eight years imprisonment probated for eight years, for

“Aggravated Theft of Property O/$20,000 U/$100,000.” (Clerk’s Record, p.

21).



            STATEMENT OF PROCEDURAL HISTORY

       The court of appeals dismissed the appeal on May 9, 2016, although one

justice dissented. A copy of each opinion is attached. No motion for rehearing

was filed. On June 10, 2016, this Court granted the petitioner’s motion for

extension of time to file the PDR, until July 8, 2016.



              QUESTION PRESENTED FOR REVIEW

       May an order modifying community supervision be appealed if it imposes

incarceration not previously envisioned?

                                         6
                                 ARGUMENT

      Approximately two years after the probated sentence was pronounced, the

trial court entered a “Supplemental Order Amending Conditions of Probation,”

ordering the petitioner, among other things, to submit “to a period of

confinement in the Randall County Jail for a term of 5 months.” (CR, p 71).

      The petitioner filed a notice of appeal, but the State moved to dismiss the

appeal based on the principle of Basaldua v. State, 558 S.W.2d 2, 5 (Tex.Crim.

App. 1977) (“We find neither constitutional nor statutory authority which would

confer jurisdiction on this court to hear an appeal from an order … altering or

modifying probationary conditions or an order, as in the instant case, refusing to

alter or modify such conditions”). The majority below agreed, ruling that it “has

long been held that an order modifying the conditions of community supervision

is not an appealable order.” (Majority Opinion, p. 2).

      But the dissent pointed to the Supplemental Order’s requirement of

incarceration, writing that under U.S. CONST. amend. XIV; TEX. CONST. art.

I, § 19, “due process and equal protection of the law demand protection of the

right to seek” review of an order imposing imprisonment:

      To say that an order of incarceration is not the imposition of a sentence
      or an appealable order defies constitutional logic and offends the
      principles of due process of law.

(Dissenting Opinion, p. 5).
                                          7
      In Gagnon v. Scarpelli, 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656

(1973), the Supreme Court noted that due process applies where community

supervision may be revoked, but not just at revocation: it also applies whenever

the probationer’s freedom is at stake:

      Both the probationer or parolee and the State have interests in the
      accurate finding of fact and the informed use of discretion – the
      probationer or parolee to insure that his liberty is not unjustifiably taken
      away and the State to make certain that it is neither unnecessarily
      interrupting a successful effort at rehabilitation nor imprudently
      prejudicing the safety of the community.

Id. at 782, 785 (emphasis added). Equally, as the Supreme Court said a year

earlier in Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484

(1972),

      Implicit in the system's concern with parole violations is the notion that
      the parolee is entitled to retain his liberty as long as he substantially
      abides by the conditions of his parole.

Id. at 479. Gagnon “draw[s] heavily on” Morrissey. Gagnon, 411 U.S. at 783.

      And a trial court’s “informed use of discretion”, Morrissey, 408 U.S. at

479, cannot be properly guaranteed where the right to appeal is denied. Habeas

review is no substitute; it differs substantially from appellate review, and

without the right to an appeal, a defendant may easily serve the entire period of

jail time ordered before the trial court even hears a writ of habeas corpus.




                                           8
                          PRAYER FOR RELIEF

      The petitioner therefore prays the Court grant discretionary review and

remand the case to the court of appeals so the appeal may proceed, or grant all

appropriate relief.

                                            Respectfully submitted,

                                            /s/ JOHN BENNETT
                                            John Bennett
                                            Post Office Box 19144
                                            Amarillo, TX 79114
                                            Telephone: (806) 282-4455
                                            Fax: (806) 398-1988
                                            AppealsAttorney@gmail.com
                                            State Bar No. 00785691
                                            Attorney pro bono for the Petitioner




                      CERTIFICATE OF COMPLIANCE

      I certify that this entire PDR contains 1,192 words.

                                            /s/ JOHN BENNETT
                                            John Bennett
                                        9
                    CERTIFICATE OF SERVICE

      I certify that a true and correct copy of the above and foregoing PDR has

been served on Warren Clark, Esq., Assistant District Attorney for Randall

County, by personal delivery, and on Lisa McMinn, Esq., State Prosecuting

Attorney, by email to her at lisa.mcminn@spa.texas.gov, both on June 20, 2016.

                                            /s/ JOHN BENNETT
                                            John Bennett




                                       10
                                      In The
                                 Court of Appeals
                        Seventh District of Texas at Amarillo

                                       No. 07-16-00060-CR


                            DAVID NEAL DUNCAN, APPELLANT

                                                V.

                             THE STATE OF TEXAS, APPELLEE

                             On Appeal from the 47th District Court
                                      Randall County, Texas
                    Trial Court No. 22,989-A, Honorable Abe Lopez, Presiding

                                          May 9, 2016

                               MEMORANDUM OPINION
                      Before CAMPBELL and HANCOCK and PIRTLE, JJ.


      Appellant, David Neal Duncan, appearing pro se, seeks to appeal an order

modifying the conditions of his community supervision. We grant the State’s motion to

dismiss and dismiss the appeal for want of jurisdiction.


       In August 2012, appellant pleaded guilty, pursuant to a plea bargain, to the third-

degree felony offense of theft of property.1 Appellant was sentenced to eight years

confinement with the term of confinement suspended and appellant placed on
      1
          TEX. PENAL CODE ANN. § 31.03 (West Supp. 2015).
community supervision for a period of eight years. In May 2015, the State filed a motion

to revoke appellant’s community supervision. An amended motion to revoke was filed

in December 2015. Instead of revoking appellant’s community supervision, the trial

court entered a Supplemental Order Amending Conditions of Probation which required

appellant to submit to a period of confinement in Randall County Jail for a term of five

months and extended the original probationary period by one year.              Appellant

subsequently perfected this appeal.


       The State now moves to dismiss the appeal for want of jurisdiction. This Court

has jurisdiction over a criminal defendant's appeal only where it arises from a judgment

of guilt or other appealable order. See TEX. R. APP. P. 25.2(a)(2); Abbott v. State, 271

S.W.3d 694, 696–97 (Tex. Crim. App. 2008).        It has long been held that an order

modifying the conditions of community supervision is not an appealable order. See

Basaldua v. State, 558 S.W.2d 2, 5 (Tex. Crim. App. 1977); Urrutia v. State, No. 07-15-

00214-CR, 2015 Tex. App. LEXIS 9610 (Tex. App.—Amarillo Sept. 10, 2015, no pet.

h.) (mem. op., not designated for publication).


       By letter dated April 6, 2016, we notified appellant that the order being appealed

was not an appealable order and directed appellant to respond to the State’s motion to

dismiss showing why the Court has jurisdiction. We advised appellant that if he did not

respond by April 18 the appeal would be dismissed for want of jurisdiction. Appellant

did not file a response.




                                            2
       Accordingly, we grant the State’s motion to dismiss the appeal. This appeal is

dismissed for want of jurisdiction and because appellant failed to comply with an order

of this Court. TEX. R. APP. P. 42.3(a), (c).


                                                   Mackey K. Hancock
                                                       Justice



Pirtle, J., dissenting.


Do not publish.




                                               3
                                   In The
                              Court of Appeals
                     Seventh District of Texas at Amarillo

                                   No. 07-16-00060-CR


                        DAVID NEAL DUNCAN, APPELLANT

                                           V.

                          THE STATE OF TEXAS, APPELLEE

                          On Appeal from the 47th District Court
                                   Randall County, Texas
                 Trial Court No. 22,989-A, Honorable Abe Lopez, Presiding

                                       May 9, 2016

                              DISSENTING OPINION
                   Before CAMPBELL and HANCOCK and PIRTLE, JJ.


      Appellant, David Neal Duncan, appearing pro se, seeks to appeal an order

requiring that he submit to a period of confinement in the Randall County jail for a term

of five months as a condition of his community supervision. At the request of the State,

the majority dismisses this appeal for want of jurisdiction on the basis that the

Supplemental Order Amending Conditions of Probation is not an appealable order.

Because I find the order to be an “appealable order”—I respectfully dissent.
       BACKGROUND

       On November 30, 2011, Appellant was indicted for the third degree felony

offense of theft of property valued over $20,000, but less than $100,000.1 On August

22, 2012, pursuant to a plea bargain reached with the State, the trial court sentenced

Appellant to eight years confinement, suspended for a term of eight years, and a fine of

$1,000. On December 22, 2015, an amended motion to revoke was filed alleging four

violations of the conditions of community supervision. After a hearing held on January

6, 2016, the court found the allegations in paragraphs 2, 3, and 4 to be “true” and, in lieu

of revocation, ordered that Appellant be confined in the Randall County jail for a term of

five months and extended the term of his community supervision by one year.                          A

Supplemental Order Amending Conditions of Probation was signed on January 21,

2016. Appellant timely filed a notice of appeal from that order.


       DISCUSSION

       A trial judge may impose confinement in jail or a community corrections facility as

a condition of community supervision. See TEX. CODE CRIM. PROC. ANN. art. 42.12,

§12(a) (West Supp. 2015). The judge may order such confinement at the time the

defendant is initially placed on community supervision or at any time during the period

of supervision. Id. at § 12(c). In a felony case, the period of confinement may not

exceed 180 days. Id. at § 12(a).




       1
          TEX. PENAL CODE ANN. § 31.03(a), (e)(5) (West Supp. 2015). At the time of commission of the
offense, theft of property valued between $20,000 and $100,000 was classified as a third degree felony.
Effective September 1, 2015, the statute was amended by increasing the property values, so that a third
degree felony is now classified as theft of property valued between $30,000 and $150,000. See Act of
May 31, 2015, 84th Leg., R.S., ch. 1251, § 10, 2015 Tex. Gen. Laws 4209, 4213.


                                                  2
       A defendant on community supervision may not, however, be deprived of his

liberty without due process of law. See Gagnon v. Scarpelli, 411 U.S. 778, 781-82, 93

S. Ct. 1756, 36 L. Ed. 2d 656 (1973) (holding that the loss of liberty entailed a serious

deprivation of rights requiring that a probationer be accorded due process of law). See

also Campbell v. State, 456 S.W.2d 918, 921 (Tex. Crim. App. 1970) (holding that,

although a motion to revoke community supervision is not a trial in a constitutional

sense, when the State provides for appellate review of judicial decisions made in the

course of a revocation proceeding, then due process and equal protection of the law is

fully applicable thereto).


       The applicable rules of appellate procedure require that a notice of appeal be

filed within thirty days after the day sentence is imposed or suspended in open court, or

after the day the trial court enters an appealable order. TEX. R. APP. P. 26.2(a)(1). On

March 23, 2016, relying on Basaldua v. State, 558 S.W.2d 2, 5 (Tex. Crim. App. 1977),

the State filed a motion to dismiss this appeal, contending that the January 21 order

imposing incarceration was neither the imposition of a sentence nor an appealable

order. The State’s reliance on Basaldua is misplaced.


       Basaldua involved a challenge to the trial court’s refusal to modify an order of

community supervision that was entered at the time sentence was originally suspended

in open court. No appeal was taken at the time the conditions of community supervision

were imposed, and the defendant filed his motion to modify several months later. Under

those circumstances, the Court of Criminal Appeals found there was no, “constitutional

or statutory authority which would confer jurisdiction on [the] court to hear an appeal

from an order . . . altering or modifying probationary conditions or an order, as in the

                                           3
instant case, refusing to alter or modify such conditions. Id. at 6 (emphasis added). The

Court went on to hold it did not have jurisdiction to hear a direct appeal from a specific

trial court ruling, to-wit: the order denying the defendant’s motion to modify.


       Subsequently, the Court of Criminal Appeals has determined that Basaldua is not

controlling in situations where the condition of community supervision being appealed is

a condition of supervision being added. See Bailey v. State, 160 S.W.3d 11, 16 (Tex.

Crim. App. 2004) (finding jurisdiction to review an order adding payment of restitution as

a condition of community supervision because the “[a]ppellant could not have appealed

a decision granting restitution [when] there was no restitution award to appeal”).


       In Bailey, the Court specifically stated that Basaldua and its progeny stand for the

proposition that no appeal lies from an order denying a motion to alter or modify existing

conditions of community supervision. Here, no period of confinement was ordered at

the original sentencing. As such, the order being appealed is not an “alteration” or

“modification” of the original terms of community supervision; it is clearly the initial

imposition of a condition depriving Appellant of his liberty. In this case, at the time of

the original sentence, not only was Appellant unaware that he would be required to

submit to a period of confinement for a term of five months, he did not know whether

such a condition would ever be required. Consequently, there never was an order of

incarceration from which he could have appealed until the date the trial court ordered

his confinement. Where, as here, the court has ordered (for the first time) Appellant’s

confinement as a condition of community supervision, the order imposing that period of

incarceration must constitutionally be an appealable order.



                                             4
      In this case, Appellant is not seeking review of a condition previously ordered.

Instead, he seeks to invoke the jurisdiction of this court to review an order depriving him

of a fundamental constitutional right, to-wit: his liberty. The United States and Texas

Constitutions not only allow for such a review, due process and equal protection of the

law demand protection of the right to seek that review. See U.S. CONST. amend. XIV;

TEX. CONST. art. 1, § 19. To say that an order of incarceration is not the imposition of a

sentence or an appealable order defies constitutional logic and offends the principles of

due process of law. As such, I find the order being appealed to be an appealable order

and I respectfully dissent from the opinion of my brethren.




                                                        Patrick A. Pirtle
                                                           Justice

Publish.




                                            5
