Opinion filed July 24, 2014




                                      In The

        Eleventh Court of Appeals
                                 ____________
                              No. 11-12-00210-CR
                                ____________
                    VICKI LYNN SHROYER, Appellant
                                        V.
                      THE STATE OF TEXAS, Appellee


                     On Appeal from the 132nd District Court
                             Scurry County, Texas
                          Trial Court Cause No. 9107

                      MEMORANDUM OPINION
       Appellant Vicki Lynn Shroyer entered a plea of guilty to the offense of theft
of currency valued at more than $1,500 but less than $20,000. Pursuant to a plea
agreement, the trial court assessed punishment at confinement for two years in a
state jail facility and a fine of $500, suspended the imposition of Appellant’s
sentence, and placed her on community supervision for five years. The State later
filed a motion to revoke community supervision, and after a hearing, the trial court
revoked Appellant’s community supervision and sentenced her to confinement for
two years. In two issues, Appellant challenges the trial court’s jurisdiction to
revoke her community supervision. We affirm.
      Appellant pleaded guilty at a hearing on December 4, 2006. The trial court
found her guilty and set a hearing for January 12, 2007, at which time the trial
court would assess punishment. At the January hearing, the trial court sentenced
Appellant to confinement in a state jail facility for two years but probated her
sentence and ordered that she complete five years of community supervision. The
court also ordered that she pay a fine, court costs, and restitution. The judgment
that the court signed reflected these oral pronouncements and was file-stamped on
January 12, 2007, the day of the hearing, but the judgment erroneously bore the
date of the prior hearing on December 4, 2006, the day on which Appellant entered
her plea and was found guilty.         The judgment also contained Appellant’s
thumbprint, and the date next to Appellant’s thumbprint was January 12, 2007.
      In a letter dated January 23, 2007, the prosecutor memorialized a
conversation that she had with Appellant’s trial counsel in which both parties
agreed that the judgment incorrectly reflected the date of the guilty plea rather than
the date of sentencing.      The letter contained a handwritten note in which
Appellant’s attorney acknowledged the error. In accordance with this agreement,
the date on the first page of the judgment was changed from December 4, 2006, to
the correct date of January 12, 2007.         However, the signature page was not
corrected and continued to reflect the earlier date of December 4, 2006.
      On January 11, 2012, the State filed a motion to revoke Appellant’s
community supervision. The trial court heard and granted the motion, but before
the imposition of the sentence, Appellant filed a motion to dismiss in which she
argued that the State’s motion to revoke was not timely because the five-year
period of community supervision, which she argued started on December 4, 2006,
rather than on January 12, 2007, as reflected in the original judgment, had expired.

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The trial court held a hearing and denied the motion to dismiss because it
concluded that it was permitted to correct such a clerical error at any time. The
trial court sentenced Appellant to confinement in a state jail facility for two years,
and this appeal followed.
      In her first issue, Appellant asks us to decide whether the State timely filed
its motion to revoke community supervision. In her second issue, Appellant argues
that the judgment was incorrectly modified because replacing one page of the
previous judgment did not constitute a proper nunc pro tunc judgment. Appellant
contends that, because the trial court improperly corrected the date reflected in the
judgment, the earlier date that was first entered is controlling and that, thus, the
State’s motion to revoke was filed after the expiration of the five-year period of
community supervision.      Appellant argues that the earlier date must control
because changing the date would extend the time period in which the State could
move to revoke community supervision. Both issues challenge the timeliness of
the State’s motion to revoke. The State’s filing of a motion to revoke prior to the
expiration of the period of community supervision triggers the trial court’s
jurisdiction to conduct a hearing on the motion and to revoke community
supervision.   Therefore, it is important to our decision in this case for us to
determine when the period of community supervision expired.
      “A judge, in the best interest of justice, the public, and the defendant, after
conviction or a plea of guilty or nolo contendere, may suspend the imposition of
the sentence and place the defendant on community supervision or impose a fine
applicable to the offense and place the defendant on community supervision.”
TEX. CODE CRIM. PROC. ANN. art. 42.12, § 3(a) (West Supp. 2013). A court retains
jurisdiction to hold a hearing “and to revoke, continue, or modify community
supervision, regardless of whether the period of community supervision imposed
on the defendant has expired, if before the expiration the attorney representing the

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state files a motion to revoke, continue, or modify community supervision and a
capias is issued for the arrest of the defendant.” Id. § 21(e).
       When calculating the period of community supervision, we include the first
day of community supervision and exclude the anniversary date. Nesbit v. State,
227 S.W.3d 64, 69 (Tex. Crim. App. 2007).              The first day of community
supervision is the first day “during which a person suffers specified restrictions
upon his freedom by virtue of either a sentence of imprisonment or community
supervision.” Id. In Nesbit, the defendant was placed on community supervision
on April 29, 1994, for a period of ten years. Id. at 66. The court of appeals
concluded that the State’s motion to revoke that was filed on April 29, 2004, was
not timely because the period of community supervision expired on April 28, 2004.
Id. at 69. The first day of the defendant’s community supervision began on the day
of sentencing both because the judgment explicitly stated that community
supervision began that day and because one condition of community supervision
required the electronic monitoring of the defendant in his home from April 29,
1994, until September 5, 1994. Id. at 66, 69 n.29.
      Here, the trial court accepted Appellant’s guilty plea and found her guilty on
December 4, 2006. At the close of that hearing, the trial court noted that Appellant
was “currently released on bond” and that she would need to appear for a
sentencing hearing on January 12, 2007. Regardless of the date listed on the
judgment and whether the trial court properly corrected the date, the record shows
that Appellant’s freedom was not restricted until the trial court placed her on
community supervision at the hearing on January 12, 2007.            The “period of
community supervision” depends on when Appellant’s freedom was actually
restricted. When the trial court corrected the judgment to reflect the correct date of
sentencing, it did not extend the time for filing the motion, it corrected a clerical
error. The time for filing the motion is computed from the date Appellant’s

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freedom was restricted, and that date was January 12, 2007, as shown in the agreed
amended judgment. See Nesbit, 227 S.W.3d at 69. Because Appellant was not
placed on community supervision until January 12, 2007, the five-year period of
community supervision expired on January 11, 2012.
      The State filed its motion to revoke on January 11, 2012, and the trial court
issued a capias for Appellant’s arrest the same day. Thus, the State’s motion to
revoke was timely filed on the last day of the supervision period, and the trial court
had jurisdiction to hold a hearing and to revoke community supervision in this
case. Accordingly, we overrule both of Appellant’s issues on appeal.
      We affirm the judgment of the trial court.




                                                    JIM R. WRIGHT
                                                    CHIEF JUSTICE


July 24, 2014
Do not publish. See TEX. R. APP. P. 47.2(b).
Panel consists of: Wright, C.J.,
Willson, J., and Bailey, J.




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