                                    In The
                               Court of Appeals
                      Seventh District of Texas at Amarillo

                                   No. 07-12-00381-CR


                    CHRISTOPHER LORENZO PEREZ, APPELLANT

                                            V.

                             THE STATE OF TEXAS, APPELLEE

                          On Appeal from the 242nd District Court
                                    Hale County, Texas
             Trial Court No. B16857-0606, Honorable Edward Lee Self, Presiding

                                   October 11, 2013

                              MEMORANDUM OPINION
                 Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.


       Appellant, Christopher Perez, appeals the trial court’s judgment revoking his

community supervision, specifically the trial court’s failure to give appellant credit

against his sentence of incarceration for the time appellant spent in a substance abuse

treatment facility and a court-ordered residential treatment facility. Disagreeing with

appellant, we will affirm.
                            Factual and Procedural Background


       Appellant is not contesting the sufficiency of the evidence to sustain the trial

court’s decision to revoke appellant’s community supervision. We will, therefore, only

address those facts necessary for our resolution of the question raised.


       For the purposes of our discussion, the following timeline, as reflected in the

record of this case, is set forth:


       1. November 6, 2006 - Appellant pleads guilty to the offense of driving
       while intoxicated 3rd or more offense, a felony. 1 Pursuant to the plea
       agreement, appellant was sentenced to five years’ incarceration with the
       term of incarceration suspended and appellant was placed on community
       supervision for five years.

       2. September 1, 2007 - Effective date of relevant amendments to TEX.
       CODE CRIM. PROC. ANN. art. 42.12 § 23(b) (West Supp. 2012).2

       3. January 28, 2009 - State files a motion to revoke.

       4. February 24, 2009 - Appellant’s community supervision is modified to
       extend the community supervision for three years and includes a
       provision that appellant is to complete Substance Abuse Felony
       Punishment Facility program (SAFPF).

       5. June 1, 2009 - Appellant, while incarcerated and awaiting transfer   to
       the SAFPF, pleads guilty to another driving while intoxicated offense   in
       Floyd County, Texas, and was sentenced to another five year term        of
       confinement in the Institutional Division of the Texas Department       of
       Criminal Justice.

       6. May 24, 2010 - After being granted parole on the Floyd County driving
       while intoxicated case, appellant is transferred to SAFPF.

       7. October 27, 2010 - Trial court orders appellant’s upcoming release
       from SAFPF after receiving notice that appellant is scheduled to
       successfully complete program. Trial court sets tentative discharge date
       of December 27, 2010.

       1
           See TEX. PENAL CODE ANN. §§ 49.04(a), 49.09(b)(2) (West Supp. 2012).
       2
       See Act of May 21, 2007, 80th Leg., R.S., ch. 1205, §§ 8, 10, 2007 Tex. Gen.
Laws 4078, 4081.
                                            2
       8. December 27, 2010 - Appellant is released from SAFPF and sent to
       the Billy Meeks after-care program.

       9. February 25, 2011 - Appellant completes Billy Meeks program and is
       released from it.

       10. June 25, 2012 - State files motion to revoke appellant’s community
       supervision, alleging several technical violations.3

       11. August 13, 2013 - Trial court holds hearing on motion to revoke and
       revokes appellant’s community supervision and sentences appellant to
       five years in the ID-TDCJ and orders appellant to pay court costs and fine
       of $1,500.

       12. August 28, 2012 – Appellant files motion for new trial requesting that
       a hearing be held on the time credit to which appellant might be entitled.

       13. August 29, 2012 - Trial court enters order overruling appellant’s
       motion for new trial.



       Appellant subsequently perfected his appeal and now presents the Court with a

single issue regarding time credit for the nine months he spent in residential treatment.

Appellant contends that the refusal of the trial court to grant him credit for the nine

months he spent at the SAFPF and the Billy Meeks after-care program amounts to an

abuse of discretion. We disagree with appellant’s contention and will affirm.


                                   Standard of Review


       Appellant’s issue is asking this Court to interpret the statute, section 23(b),

therefore, we will apply a de novo standard of review. See Williams v. State, 253

S.W.3d 673, 677 (Tex.Crim.App. 2008).


       3
         The State’s allegations, to which appellant pleaded “true,” related to (1) failure
to maintain employment in accordance with the terms of community supervision; (2)
failure to update supervision office of change in employment; (3) failure to pay court
costs, fines, supervision fees, and Crime Stoppers fees; and (4) failure to make
adequate progress toward completion of required hours of community service.
                                            3
                                        Analysis


      Appellant’s issue is grounded in a change that the legislature made to article

42.12, section 23(b) of the Texas Code of Criminal Procedure in 2007. See TEX. CODE

CRIM. PROC. ANN. art. 42.12 § 23(b).4 Prior to September 1, 2007, the statute did not

provide for any credit for time a probationer might have spent in residential treatment

while on community supervision. See Act of May 29, 1993, 73rd Leg., R.S., ch. 900, §

4.01, sec. 23(b), 1993 Tex. Gen. Laws 3586, 3741–42 (amended 2007) (current version

at TEX. CODE CRIM. PROC. ANN. art. 42.12, § 23(b)).5 When section 23(b) was amended

in 2007, it was amended to read as follows:


      No part of the time that the defendant is on community supervision shall
      be considered as any part of the time that he shall be sentenced to serve,
      except that on revocation, the judge shall credit to the defendant time
      served by the defendant as a condition of community supervision in a
      substance abuse treatment facility operated by the Texas Department of
      Criminal Justice under Section 493.009, Government Code, or another
      court-ordered residential program or facility, but only if the defendant
      successfully completes the treatment program in that facility.




§ 23(b). This change in the law only applied to those “initially placed on community

supervision on or after the effective date” of the amendment. See Act of May 21, 2007,

80th Leg., R.S., ch. 1205, § 10, 2007 Tex. Gen. Laws 4081. The effective date of this

amendment was set at September 1, 2007. See Act of May 21, 2007, 80th Leg., R.S.,

ch. 1205, § 11, 2007 Tex. Gen. Laws 4081.


      4
        Further reference to article 42.12 of the Texas Code of Criminal Procedure shall
be by reference to “section ____” or “§ ____.”
      5
        This former provision, applicable to this matter, provided that “[n]o part of the
time that the defendant is on community supervision shall be considered as any part of
the time that he shall be sentenced to serve.”
                                              4
       We are to construe a statute according to its plain language, unless the language

is ambiguous or the interpretation would lead to an absurd result. See Thompson v.

State, 236 S.W.3d 787, 792 (Tex.Crim.App. 2007) (citing Boykin v. State, 818 S.W.2d

782, 785 (Tex.Crim.App. 1991) (en banc)). We note that the statute’s plain language

says that it only applies to those “initially placed” on probation after the effective date,

September 1, 2007. See Act of May 21, 2007, 80th Leg., R.S., ch. 1205, § 10, 2007

Tex. Gen. Laws 4081.        Neither the amendment nor the Texas Code of Criminal

Procedure defines “initial” or “initially.” In the absence of statutory definition, we use the

term in its ordinary and common usage. See TEX. GOV’T CODE ANN. § 311.011(a) (West

2013). In its ordinary and common usage, the term “initial” is defined as “of or relating

to the beginning.” MERRIAM-W EBSTER’S COLLEGIATE DICTIONARY 643 (11th ed. 2003).

Therefore, if we simply read the plain language of the statute, appellant’s issue is not

sustainable; his community supervision began in November 2006, well before the

effective date of the amendment at issue. To avoid this result, appellant contends that

such a reading would lead to an absurd result.


       Appellant attempts to reach the “absurd result” plateau by viewing the legislative

history behind the passage of the 2007 amendments to section 23(b).                    Under

appellant’s theory, this amendment was passed in an effort to help alleviate

overcrowding in the prison system and to provide more space for those convicted of

more serious offenses. See Tex. House Comm. on Corr., Bill Analysis, C.S.H.B. 1678,

80th Leg., R.S. (2007). Even if we accept appellant’s factual assertion about why the

statute at issue was amended, there is still no showing that, when we follow the literal

statement of the statute regarding the effective date, September 1, 2007, we reach an

absurd result. This is so because we must also assume that the legislature knew, when

                                              5
it passed the amendment to section 23(b), that there were people on community

supervision who might subsequently be sent to a SAFPF or some other court-ordered

residential treatment facility, and we must give full effect to the entire statutory scheme

as enacted by the legislature.6 See Bays v. State, 396 S.W.3d 580, 584 (Tex.Crim.App.

2013). Giving full effect to the entire statute would include recognition and application of

the effective date of the statute. See id. It is not for the Court to add or subtract from

such statute, absent some ambiguity.        Boykin, 818 S.W.2d at 785.         Contrary to

appellant’s position, giving full effect to the entire statute does not reach an absurd

result; it may reach what appellant thinks is an unfair result, but it is not an absurd

result. Accordingly, we overrule appellant’s single issue.


                                        Conclusion


       Having overruled appellant’s single issue, we affirm the judgment as entered by

the trial court.


                                                 Mackey K. Hancock
                                                    Justice

Do not publish.




       6
         Indeed, the legislature contemplated and specifically addressed the issue
relating to those defendants “initially placed on community supervision before the
effective date of the [amendment]”: they are to be “governed by the law in effect
immediately before [September 1, 2007].” Act of May 21, 2007, 80th Leg., R.S., ch.
1205, § 10, 2007 Tex. Gen. Laws 4081.
                                             6
