                                   NO. 07-07-0214-CR

                             IN THE COURT OF APPEALS

                      FOR THE SEVENTH DISTRICT OF TEXAS

                                     AT AMARILLO

                                        PANEL A

                                   AUGUST 27, 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.


                                        OPINION


       Appellant, Shelby Mark Neugebauer, seeks to have this Court reform the judgment

of the trial court to reflect credit for time served and to delete portions of the judgment

limiting his right to appeal “punishment issues” only. For the reasons expressed herein,

we vacate the trial court’s Judgment Revoking Probation, as well as its Order Suspending
Imposition of Sentence and Placing Defendant on Community Supervision, and remand

this cause to the trial court with instructions to enter an order which will notify the

Institutional Division of the Texas Department of Criminal Justice that the judgment upon

which Appellant is currently being held is the original judgment entered in this cause.


                                       Background


       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.

Appellant was immediately taken into custody. Appellant remained confined in the Randall

County Jail until he was transferred to the Institutional Division of the Texas Department

of Criminal Justice, where he remained incarcerated until he was released on bond

pending appeal pursuant to article 44.04 of the Texas Code of Criminal Procedure.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. An alias capias

was issued and Appellant was reincarcerated on February 17, 1999. On April 26, 1999,

Appellant filed a motion with the trial court seeking to suspend further imposition of his

sentence pursuant to the procedure commonly referred to as “shock probation.” On June

1, 1999, the trial court2 heard Appellant’s motion and ordered that his sentence, but not the


       1
        Although the date of filing notice of appeal (July 24, 1997) and the date the trial
judge approved Appellant’s appeal bond (July 23, 1997) appear of record, the actual date
of release from incarceration does not appear in the record before us.
       2
           The Honorable David Gleason, judge presiding.

                                             2
fine, be suspended in favor of community supervision for ten years. In 2007, the State filed

a motion to revoke Appellant’s community supervision alleging three violations of the

condition that he abstain from alcohol consumption and one violation of the requirement

that he pay a supervision fee. On April 24, 2007, Appellant entered a plea of not true to

the allegations. Following presentation of testimony and evidence, the trial court revoked

Appellant’s community supervision, reformed his sentence to seven and one-half years

confinement, with no fine, and remanded him to the custody of the Sheriff for transfer to

the Institutional Division of the Texas Department of Criminal Justice, where he remains

today.


         Appellant’s original attorney on appeal filed an Anders3 brief in support of a motion

to withdraw. Having concluded that an arguable ground for appeal existed, this Court

abated this appeal and remanded the case to the trial court for the appointment of new

counsel.        See Neugebauer v. State, No. 07-07-0214-CR, 2008 WL 878425, at *1

(Tex.App.–Amarillo April 2, 2008, no pet.). Appellant’s new appellate counsel also filed an

Anders brief in support of a motion to withdraw. Remaining concerned that an arguable

ground for appeal existed, this Court concluded that a potential issue concerning the

jurisdiction of the trial court at the time it entered the order placing Appellant on community

supervision warranted briefing by counsel. We again abated this appeal and remanded

the case to the trial court for the appointment of new counsel. See Neugebauer v. State,




         3
             Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967).

                                                3
No. 07-07-0214-CR, 2008 WL 221803, at *2 (Tex.App.–Amarillo May 29, 2008, no pet.).

Appellant’s third appellate counsel filed the brief now before this Court raising two issues

and addressing the potential issue concerning the jurisdiction of the trial court at the time

it entered the order placing Appellant on community supervision. Appellant opines the trial

court had jurisdiction when it placed him on “shock probation,” more than two years after

the execution of sentence had actually begun, because his incarceration had been

interrupted by reason of his release on bond pending final determination of his original

appeal. The State filed its brief wherein it agreed with Appellant’s position.


                         Jurisdiction to Grant Shock Probation


       Where, as here, the record itself raises a question as to the trial court’s subject-

matter jurisdiction, we must address that issue, sua sponte, before proceeding to any other

issue. State v. Roberts, 940 S.W.2d 655, 657 (Tex.Crim.App. 1996), overruled on other

grounds, State v. Medrano, 67 S.W.3d 892, 903 (Tex.Crim.App. 2002) (threshold issue of

jurisdiction must be disposed of before addressing substantive issues because subject-

matter jurisdiction cannot be conferred by agreement of the parties, but must be vested in

a court by constitution or statute). Where there is no jurisdiction, the power of the court to

act is “as absent as if it did not exist”; Garcia v. Dial, 596 S.W.2d 524, 527 (Tex.Crim.App.

1980) (quoting Ex parte Caldwell, 383 S.W.2d 587, 589 (Tex.Crim.App. 1964)), and any

order or judgment entered by a court lacking jurisdiction is void. Nix v. State, 65 S.W.3d




                                              4
664, 668 (Tex.Crim.App. 2001); Gallagher v. State, 690 S.W.2d 587, 588-99 n.1

(Tex.Crim.App. 1985).


       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 2006) (emphasis added).4 Execution of sentence begins upon the

defendant’s incarceration. Bailey v. State, 160 S.W.3d 11, 14 n.2 (Tex.Crim.App. 2004).

A trial court order granting shock probation after it has lost jurisdiction is void. Ex Parte

Busby, 67 S.W.3d 171, 173 (Tex.Crim.App. 2001), overruled on other grounds, Ex Parte

Hale, 117 S.W.3d 866 (Tex.Crim.App. 2003). A void judgment is a “nullity” and can be

attacked at any time. Ex Parte Patterson, 969 S.W.2d 16, 19 (Tex.Crim.App. 1998). If the

original judgment imposing community supervision is void, then the trial court has no

authority to revoke that community supervision, since, with no judgment imposing

community supervision, there is nothing to revoke. Nix, 65 S.W.3d at 668.


       Appellant was originally incarcerated on May 14, 1997; therefore, execution of

Appellant’s sentence began on May 14, 1997. The trial court’s June 1, 1999 Order

Suspending Imposition of Sentence and Placing Defendant on Community Supervision,

which purports to grant Appellant shock probation more than two years after execution of

Appellant’s sentence actually began, was done at a time when the trial court was without


       4
           Unless otherwise noted, all emphasis contained in this opinion has been added.

                                              5
jurisdiction to enter that order and is therefore, on its face, void. 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).


                        Suspension of Execution of Sentence


       Appellant and the State both contend the trial court did have jurisdiction to grant

Appellant shock probation because Appellant was not incarcerated for more than 180 days

prior to the suspension of sentence, Appellant having been released on bond pending the

disposition of his original appeal. While we agree that “execution of the sentence” imposed

by the trial court was suspended by reason of Appellant’s release on bond pending final

determination of the merits of his original appeal, Houlihan v. State, 579 S.W.2d 213, 217

(Tex.Crim.App. 1979), § 6 of article 42.12 says nothing about suspension of the execution

of sentence. The statutory language of § 6 is clear and unambiguous: “the jurisdiction of

a court . . . shall continue for 180 days from the date the execution of sentence actually

begins.” When read literally, we have no valid reason to interpret it any way other than as

continuing the jurisdiction of the court for a period of time commencing “the date the

execution of sentence actually begins.”


       The State suggests that Houlihan stands for the proposition that the 180 day time

period contemplated by § 6 continued to run until Appellant’s notice of appeal was filed

and/or his appeal bond was approved, and then recommenced when he was incarcerated

following the conclusion of his original appeal. We disagree. Houlihan is factually

                                             6
distinguishable in a significant way. In Houlihan, the appellant was originally placed on five

years community supervision. After his community supervision was revoked, Houlihan

gave notice of appeal and he did not begin the actual service of his sentence until after

his revocation was affirmed. The Court of Criminal Appeals concluded the trial court had

jurisdiction to grant him shock probation because the single, uninterrupted period between

the date the execution of sentence actually began and the date the trial court was asked

to rule on the appellant’s motion for suspension of the imposition of sentence, did not

exceed the applicable statutory period of time.5


                                   Issues Pretermitted


       Finally, having determined that the order revoking community supervision is void,

we pretermit consideration of Appellant’s issues pertaining to reformation of that order.

While we are mindful of those contentions, our disposition of the jurisdictional issue

eliminates the necessity that we consider those issues.6




       5
       As originally enacted the “shock probation” provisions of the Texas Code of
Criminal Procedure extended the trial court’s jurisdiction by 120 days. See Act of May 17,
1977, 65th Leg., R.S., ch. 306, § 1, 1977 Tex. Gen. Laws 821. In 1981, the Legislature
extended that period to 180 days. See Act of April 15, 1981, 67th Leg., R.S., ch. 69, § 1,
1981 Tex. Gen. Laws 154.
       6
           Tex. R. App. P. 47.1.

                                              7
                                      Conclusion


      Having concluded the trial court lacked jurisdiction to place Appellant on community

supervision when it did, we vacate the trial court’s Order Suspending Imposition of

Sentence and Placing Defendant on Community Supervision. Furthermore, we vacate the

trial court’s Judgment Revoking Probation and remand this case to the trial court with

instructions to enter an order advising the Institutional Division of the Texas Department

of Criminal Justice that the judgment upon which Appellant is currently being held is the

original judgment entered in this cause.




                                                Patrick A. Pirtle
                                                    Justice

Publish.




                                            8
