             IN THE COURT OF CRIMINAL APPEALS
                         OF TEXAS
                                        NO. PD-0552-08



                            MARK WILLIAM IVEY, Appellant

                                                v.

                                  THE STATE OF TEXAS

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

                K ELLER, P.J., filed a dissenting opinion in which H OLCOMB and C OCHRAN,
JJ., joined.


       A defendant has an unambiguous statutory right to elect who will assess punishment, which

is not overridden by the community supervision statute. I would therefore reverse the judgment of

the court of appeals.

       Under Boykin v. State, this Court must construe a statute in accordance with the plain

meaning of its text, unless the statutory language is ambiguous or the plain meaning leads to absurd

results that the Legislature could not have possibly intended.1 The portion of the community


       1
           818 S.W.2d 782, 785 (Tex. Crim. App. 1991).
                                                                                IVEY DISSENT — 2

supervision statute at issue here provides:

        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.2

This provision is contained within a larger section addressing judge-ordered community

supervision.3 In addition to the authorization paragraph quoted above, the section describes the

minimum and maximum time periods for which community supervision may be imposed and

limitations on the ability to impose community supervision.4 A later section addressing jury-

recommended community supervision is parallel in structure.5 These provisions address the general

authority of a judge or jury with respect to the issue of assessing community supervision, but they

do not purport to address when a judge or jury becomes the decision-maker with respect to that issue.

        The “when” is addressed by another statute, which confers upon the defendant a right to a

jury trial:

        Except as provided by Article 37.071 or 37.072, if a finding of guilty is returned, it
        shall then be the responsibility of the judge to assess the punishment applicable to the
        offense; provided, however, that (1) in any criminal action where the jury may
        recommend community supervision and the defendant filed his sworn motion for
        community supervision before the trial began, and (2) in other cases where the
        defendant so elects in writing before the commencement of the voir dire examination
        of the jury panel, the punishment shall be assessed by the same jury, except as
        provided in Section 3(c) of this article and in Article 44.29. If a finding of guilty is
        returned, the defendant may, with the consent of the attorney for the state, change his


        2
            T EX . CODE CRIM . PROC. art. 42.12, §3(a).
        3
              See id., art. 42.12, §3.
        4
        Id., art. 42.12, §3(b)-(h). Further limitations on judge-ordered community supervision are
imposed in §3g.
        5
              Id., art. 42.12, §4.
                                                                               IVEY DISSENT — 3

       election of one who assesses the punishment.6

By unambiguous statutory dictate, a defendant has the right to elect which entity (judge or jury)

assesses punishment. The fact that community supervision is part of “punishment” is obvious from

the statute’s treatment of a defendant’s sworn, pretrial motion for community supervision as a

request that punishment be assessed by the jury.7 A trial judge who imposes community supervision

contrary to a jury’s punishment verdict, and against a defendant’s wishes, has illegally overriden the

defendant’s punishment election.

       Moreover, the State can prevent a defendant from changing his punishment election after a

guilty verdict. Even if a defendant agreed to a judge imposing probation contrary to the jury’s

verdict, a judge has no authority to do so without the State’s consent.

       The Court says that the Legislature could qualify the statutory right to a jury trial by enacting

pertinent provisions in the community supervision statute that allow a judge to suspend a jury’s

sentence and impose community supervision.8 That is true, but legislative silence within the

community supervision statute does not constitute such an enactment. Though a qualification on the

defendant’s right to a jury trial that permitted a trial judge to assess community supervision used to

exist, that is a matter of legislative history that we do not even consider unless we first find an

ambiguity in the language of the pertinent statutory provisions. Because there is no ambiguity when

the relevant community supervision provisions are read together with the punishment-election


       6
           Id., art. 37.07, §2(b).
       7
           The Court’s contention that community supervision is not a “sentence,” Court’s op. at 7,
is irrelevant here because the punishment-election statute uses the broader term “punishment” and
by its own language contemplates that “punishment” includes community supervision.
       8
           Court’s op. at 7 (“what the Legislature giveth, the Legislature may taketh away”).
                                                                              IVEY DISSENT — 4

provision, and such a reading does not lead to absurd results, there is no occasion to consider

historical developments.9

       In the present case, appellant elected to have the jury assess punishment. The trial judge’s

act of imposing community supervision was contrary to that election and therefore contrary to the

law.

       I respectfully dissent.

Filed: February 11, 2009
Publish




       9
          Ordinarily, the fact that a provision was deleted is evidence that the Legislature intended
to repeal the rule prescribed therein. Ex parte Burgess, 152 S.W.3d 123, 124 (Tex. Crim. App.
2004)(“transfer” language deleted from habeas statute). Even assuming that the Court is correct that
other factors the Court analyzes show that the Legislature did not in fact intend to change the law,
we must still give effect to a substantive revision that by its language changes the law, even if that
was not the Legislature’s intent. Getts v. State, 155 S.W.3d 153, 158 (Tex. Crim. App. 2005)(DWI
statute).
