                            NUMBER 13-13-00571-CR

                            COURT OF APPEALS

                  THIRTEENTH DISTRICT OF TEXAS

                    CORPUS CHRISTI – EDINBURG

THE STATE OF TEXAS,                                                         Appellant,


                                           v.

OLIN ANTHONY ROBINSON,                                                      Appellee.


                  On appeal from the 24th District Court of
                         Jackson County, Texas.


                         MEMORANDUM OPINION
             Before Justices Rodriguez, Garza and Benavides
                 Memorandum Opinion by Justice Garza

      This appeal by the State, by and through the Jackson County District Attorney’s

Office, challenges the trial court’s October 21, 2013 order granting appellee Olin Anthony

Robinson’s motion for “shock probation.” See TEX. CODE CRIM. PROC. ANN. art. 41.12, §
6(a) (West, Westlaw through 2013 3d C.S.) (providing for trial court’s authority to grant

“shock probation” to defendants sentenced to imprisonment in the Institutional Division of

the Texas Department of Criminal Justice (“TDCJ”)).         By a single issue, the State

contends the trial court lacked jurisdiction to grant Robinson’s motion because it was

granted outside the statutory 180-day jurisdictional period for granting such a motion. See

id. Concluding that the trial court’s October 21, 2013 order placing Robinson on shock

probation is void, we vacate that order and dismiss the cause. See TEX. R. APP. P.

43.2(e).

                                          BACKGROUND

       On February 10, 2010, a jury convicted Robinson of assault on a public servant, a

third-degree felony, see TEX. PENAL CODE ANN. § 22.01(a)(1), (b)(1) (West, Westlaw

through 2013 3d C.S.), and imposed punishment of four years’ imprisonment in the TDCJ

and a $10,000 fine. Robinson appealed, and this Court affirmed his conviction. See

Robinson v. State, No. 13-10-065-CR, 2011 WL 861152, at *2 (Tex. App.—Corpus Christi

March 10, 2011, pet. ref’d) (mem. op., not designated for publication) (Robinson I).

       On December 28, 2011, the day that he began serving his sentence, Robinson

filed a “Motion for Continuing Jurisdiction Community Supervision,” commonly referred to

as “shock probation.” See Neugebauer v. State, 266 S.W.3d 137, 138 (Tex. App.—

Amarillo 2008, no pet.).    On February 2, 2012, the trial court entered a judgment

assessing punishment at four years’ imprisonment and a $10,000 fine, but suspending

the punishment and placing Robinson on community supervision for four years.

       The State appealed, arguing that the trial court erred in granting Robinson’s motion

without holding a hearing as required by article 42.12, section 6(c) of the code of criminal



                                             2
procedure. See TEX. CODE CRIM. PROC. ANN. art. 41.12, § 6(c) (West, Westlaw through

2013 3d C.S.) (providing that a judge may deny a motion for shock probation without a

hearing, but may not grant such a motion without a hearing). We agreed with the State,

reversed the February 2, 2012 judgment, and remanded to the trial court for proceedings

consistent with our opinion. See State v. Robinson, No. 13-12-00121-CR, 2013 WL

1188101, at *2 (Tex. App.—Corpus Christi March 21, 2013, pet. ref’d) (mem. op., not

designated for publication) (Robinson II).

      On October 21, 2013, the trial court held a hearing on Robinson’s motion for

continuing jurisdiction community supervision. The trial court also heard the State’s

motion to dismiss Robinson’s motion.         The State argued that the trial court lacked

jurisdiction to grant the motion because more than 180 days had elapsed after the

execution of Robinson’s sentence began on December 28, 2011. Robinson argued that,

because this Court in Robinson II reversed the February 2, 2012 judgment and remanded

to the trial court for further proceedings, Robinson was placed in the same posture as if

a new hearing had been granted by the trial court.

      At the conclusion of the hearing, the trial court granted Robinson’s motion and

placed him on shock probation for a period of four years. The court further ordered that

the $10,000 fine be paid in monthly payments. The trial court signed the order the same

day, October 21, 2013. The State appealed from this order.

                                  II. STATE’S RIGHT TO APPEAL

      We first note that Robinson argues on appeal that this Court lacks subject-matter

jurisdiction to entertain an appeal of a trial court order granting shock probation. We

disagree. We decided this issue in Robinson II. See 2013 WL 1188101, at *1. There,



                                              3
we held that the State has a right to appeal the trial court’s order/judgment granting shock

probation under article 44.01(a)(2) of the code of criminal procedure because the order

“‘arrest[ed] or modifie[d] a judgment.’”     Id. (citing TEX. CODE CRIM. PROC. ANN. art.

44.01(a)(2) (West, Westlaw through 2013 3d C.S.)) (providing that the state is entitled to

appeal an order of a court in a criminal case if the order arrests or modifies a judgment).

For the same reason, we conclude that the State has a right to appeal the October 21,

2013 order.

               III. DISCUSSION: JURISDICTION TO GRANT SHOCK PROBATION

       By its sole issue, the State contends that the trial court lacked jurisdiction to grant

shock probation because the October 21, 2013 order granting it was issued almost two

years after the date that Robinson began serving the sentence on December 28, 2011.

We agree with the State. As noted in Neugebauer,

       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). 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).

266 S.W.3d at 139 (footnote omitted).

       It is undisputed that execution of Robinson’s sentence began on December 28,

2011. Robinson’s sworn motion for shock probation states that he began serving his

sentence on December 28, 2011. The October 31, 2013 order which purports to grant

Robinson shock probation was issued well outside the statutory 180-day period after



                                              4
Robinson began serving his sentence on December 28, 2011. Therefore, the trial court

was without jurisdiction to issue the October 31, 2013 order, and the order is therefore

void. See id. at 140 (citing 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)); see also State ex

rel. Bryan v. McDonald, 642 S.W.2d 492, 493 (Tex. Crim. App. 1982) (“It is clear that the

trial court's jurisdiction to grant shock probation continues only for 180 days from the date

the execution of the sentence actually begins. Any action taken by the trial court, after

the 180th day is void because the court is acting without jurisdiction.”); Hunt v. State, No.

01-88-01193-CR, 1990 WL 31593, at *2 (Tex. App.—Houston [1st Dist.] March 22, 1990,

pet. ref’d) (not designated for publication) (holding trial court’s order granting shock

probation was void because issued 183 or 182 days after appellant’s sentence was

executed).

       Robinson does not address the clear language of section six of article 42.12. See

TEX. CODE CRIM. PROC. ANN. art. 42.12, § 6.1 Nor does he attempt to distinguish the


       1   Article 42.12, section 6(a) provides:

       For the purposes of this section, the jurisdiction of a court imposing a sentence requiring
       imprisonment in the Texas Department of Criminal Justice for an offense other than a state
       jail felony continues for 180 days from the date the execution of the sentence actually
       begins. Before the expiration of 180 days from the date the execution of the sentence
       actually begins, the judge of the court that imposed such sentence may on his own motion,
       on the motion of the attorney representing the state, or on the written motion of the
       defendant, suspend further execution of the sentence and place the defendant on
       community supervision under the terms and conditions of this article, if in the opinion of the
       judge the defendant would not benefit from further imprisonment and:



                  (1) the defendant is otherwise eligible for community supervision under this article;
                      and

                  (2) the defendant had never before been incarcerated in a penitentiary serving a
                     sentence for a felony.

TEX. CRIM. PROC. CODE ANN. art. 42.12, § 6(a) (West, Westlaw through 2013 3d C.S.)

                                                       5
interpretation and application of the statute in McDonald, Neugebauer, and Hunt. See

McDonald, 642 S.W.2d at 493; Neugebauer, 266 S.W.3d at 140; see also Hunt, 1990 WL

31593, at *2. The only argument Robinson makes is the general proposition that “[w]hen

a court of appeals reverses and remands a case to the trial court without instructions to

render a specific judgment, the effect is to restore the parties to the same situation as that

in which they were before the appeal.” See McNatt v. State, 188 S.W.3d 198, 201 (Tex.

Crim. App. 2006). While we do not dispute the general proposition posited by Robinson,

he has cited no authority applying the proposition to expand the jurisdictional period

defined by article 42.12 section six, and we find none. As the Neugebauer court stated,

       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.”

266 S.W.3d at 140 (emphasis in original). We agree and sustain the State’s sole issue.

                                      IV. CONCLUSION

       The trial court’s October 21, 2013 order placing Robinson on shock probation is

void. Having determined the October 21, 2013 order to be a nullity, we vacate that order

and dismiss the cause. See TEX. R. APP. P. 43.2(e). We further find that when a trial

court acts entirely without jurisdiction, the proper remedy is to return the parties to the

positions they occupied prior to the trial court’s actions. See State v. Fielder, 376 S.W.3d

                                              6
784, 787 (Tex. App.—Waco 2011, no pet.) (citing Deifik v. State, 58 S.W.3d 794, 798

(Tex. App.—Fort Worth 2001, pet. ref’d)); see also Moore v. State, No. 09-06-532-CR,

2008 WL 1904247, at *5 (Tex. App.—Beaumont April 30, 2008, no pet.). Therefore, the

trial court’s February 10, 2010 judgment of conviction and sentence is in full force and

effect. See Fielder, 376 S.W.3d at 787.




                                               DORI CONTRERAS GARZA,
                                               Justice

Do not publish.
TEX. R. APP. P. 47.2(b).


Delivered and filed the
26th day of August, 2014.




                                           7
