                         COURT OF APPEALS
                          SECOND DISTRICT OF TEXAS
                               FORT WORTH

                              NO. 02-12-00085-CR


JERRY PAUL LUNDGREN                                                   APPELLANT

                                        V.

THE STATE OF TEXAS                                                          STATE


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             FROM COUNTY COURT AT LAW OF WISE COUNTY

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                           DISSENTING OPINION

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      I cannot join the majority’s thoughtful opinion and must respectfully dissent.

      This court has repeatedly held that when a defendant is placed on

community supervision, even as the result of a plea bargain, that defendant must

file a motion for new trial to complain of conditions of community supervision,

involuntariness of a negotiated plea, or ineffective assistance of counsel or that
the punishment is infirm. 1 Yet the majority now says that because Appellant

entered into a negotiated plea and waived his right of appeal, he cannot do what

we have told him he must do to preserve certain claims: pursue a motion for new

trial. 2 The reason given is that he cannot benefit from a rule of procedure that is

meant to make pursuit of certain complaints more onerous. 3 The majority also

suggests that Appellant was bound by the conditions of community supervision

until he filed his motion for new trial, and then he may have been relieved of

those obligations until the motion for new trial was overruled by operation of law. 4

The majority also states that we must disregard the final judgment stating that


      1
        See Cooper v. State, 45 S.W.3d 77, 82 (Tex. Crim. App. 2001)
(“[M]eritorious claims of involuntary pleas may be raised by other procedures:
motion for new trial and habeas corpus.”); Donovan v. State, No. 02-11-00033-
CR, 2012 WL 3030562, at *2–3 (Tex. App.—Fort Worth July 26, 2012, no pet. h.)
(motion for reh’g and reh’g en banc pending) (holding that “[t]o preserve error for
appellate review [regarding conditions of community supervision], a party must
make a timely and specific objection or motion at trial,” “[pursue a] motion to
amend” or “present[] written objections to the trial court at any point between the
time the conditions [are] imposed and the adjudication hearing”; Kim v. State,
283 S.W.3d 473, 475 (Tex. App.—Fort Worth 2009, pet. ref’d) (holding failure to
object to sentence at time of imposition or to complain of sentence in motion for
new trial forfeits complaint); Edwards v. State, 280 S.W.3d 441, 443 (Tex. App.—
Fort Worth 2009, pet. ref’d) (“The record before us contains no motion for new
trial. Although a motion for new trial is not a prerequisite to a successful
ineffective assistance of counsel claim, evidence presented at a motion for new
trial hearing may offer insight into defense counsel’s motives behind her actions
and may rebut the strong presumption of reasonable professional assistance.”).
      2
       See Majority Op. at 8.
      3
       See id.
      4
       See id. at 7–8.


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community supervision terms did not commence until June 22, slightly more than

five months after Appellant’s January 14 arrest. 5 Would the majority hold that

Appellant’s community supervision could be revoked for a violation that occurred

before he filed the motion for new trial that we have held is required had that

motion for new trial been granted on grounds of an involuntary plea, ineffective

assistance of counsel, or the trial court’s failure to comply with the plea bargain

agreement?

      The Texas Court of Criminal Appeals has explained that when, at the time

of sentencing for the primary offense, the defendant still had time to file a motion

for new trial in the proceeding involving the prior conviction, the prior conviction

was not final and “was subject to being vitiated merely by the defendant’s

subsequent filing of a motion for new trial or a notice of appeal.” 6

      Similarly, in the case now before this court, Appellant waived his right to

appeal but did not waive his right to file a motion for new trial. The judgment in

the case was not final until mandate issued. 7 The final judgment states that the

terms of community supervision began on June 22. The new offense occurred

the previous January.      No one claims that the prior judgment was final on

January 14 for the purpose of affecting sentencing in another trial. And although

      5
       See id. at 9.
      6
       Milburn v. State, 201 S.W.3d 749, 752–54 (Tex. Crim. App. 2006).
      7
       See Ex parte Johnson, 12 S.W.3d 472, 473 (Tex. Crim. App. 2000) (“Prior
to the mandate, a judgment is not final.”).


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the violation occurred before Appellant filed his motion for new trial, the State did

not file its petition to proceed to adjudication until after Appellant had filed his

motion for new trial.

       I frankly do not understand the majority’s hypothetical stalking and

Washington marijuana scenarios. 8 Nor do I understand the majority’s conclusion

that

       the filing of the motion for new trial in each of these cases [stalking
       and going to Washington to possess marijuana] retroactively stamps
       a "King's X” on these clear and intentional violations of the terms and
       conditions of community supervision and eviscerates the trial court’s
       power to enforce its order. Not only would Appellant’s position
       forgive all these past violations, but the defendants in our
       hypotheticals would have free reign to continue these transgressions
       for up to 75 days after their community-supervision sentences are
       imposed. 9

       Specifically, I do not understand the majority’s statement that Appellant’s

“interpretation of the law would obligate a trial court to release a defendant

placed on community supervision and risk that the defendant will commit a

catastrophic violation.” 10 Catastrophic violation? What does that mean? A new

offense? Would not the penal code be as effective a deterrent as a condition of

community supervision when the maximum punishment on the primary offense




       8
       See Maj. Op. at 12–14.
       9
       Id. at 13.
       10
           Id. at 14.


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has already been set at 365 days?        A catastrophic failure to pay fees?     A

catastrophic failure to report?

      Respectfully, if we abandon the rules of procedure to avoid “retroactively

stamp[ing] a ‘King’s X’” on violations of terms and conditions of community

supervision, we take an inappropriate shortcut that undermines the rule of law.

Lundgren waived his right to appeal. If the State had wanted to condition the

plea bargain on the conviction’s becoming final immediately upon suspending

imposition of sentence and placing Lundgren on community supervision, the

State could have conditioned the agreement on waiver of filing a motion for new

trial as well as upon waiver of appeal. If the trial court had wanted the terms and

conditions of community supervision to be immediately binding, the trial court

could have released Appellant on a personal bond with the conditions of

community supervision imposed as conditions of bond. Neither the State nor the

trial court took such action.

      Nor do I understand why Appellant would have had “free reign to continue

these transgressions for up to 75 days.” All the trial court had to do was to deny

the motion for new trial immediately rather than choosing to wait for the motion to

be overruled by operation of law.

      Appellant used rules of procedure to his benefit. The majority holds that

he cannot use the rules of procedure to manipulate the system for his benefit.

Respectfully, the rules do not change just because a defendant, or the State for

that matter, reaps an unintended benefit that we do not approve of.            The


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application of statutes, rules of evidence, and even rules of procedure must be

consistent, no matter who benefits. Normally, a judgment means what it says. 11

Normally, a defendant may file a motion for new trial. 12 Normally, a judgment is

not final until mandate has issued, which has still not happened in the case

before us.   Do we add the caveat that these rules apply unless Appellant

benefits?

      Respectfully, I must dissent.


                                                  LEE ANN DAUPHINOT
                                                  JUSTICE

PUBLISH

DELIVERED: August 22, 2013




      11
         See Gonzales v. State, 309 S.W.3d 48, 52 (Tex. Crim. App. 2010) (“As
our analysis shows, the court of appeals’ conclusion that the 1987 judgment was
not a final conviction conflicts with a plain reading of the instrument itself.”).
      12
       See Tex. R. App. P. 21.


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