                                                                                     PD-0974-15
                             PD-0974-15                            COURT OF CRIMINAL APPEALS
                                                                                    AUSTIN, TEXAS
                                                                   Transmitted 7/28/2015 5:49:16 PM
                                                                    Accepted 7/29/2015 11:43:56 AM
                           No._____________________                                  ABEL ACOSTA
                                                                                             CLERK
______________________________________________________________________________

                                    IN THE
                       COURT OF CRIMINAL APPEALS
                                      OF
                                    TEXAS
______________________________________________________________________________

                          OLIN ANTHONY ROBINSON,
                                  Petitioner,

                                     vs.

                            THE STATE OF TEXAS,
                                  Respondent.
______________________________________________________________________________

                       Petition in Cause No. 05-05-7221 from the
                 24th Judicial District Court of Jackson County, Texas
         and the Court of Appeals for the Thirteenth Supreme Judicial District
                        of Texas in Cause No. 13-13-00571-CR
______________________________________________________________________________

                   PETITION FOR DISCRETIONARY REVIEW
______________________________________________________________________________

                                           WILLIE & ASSOCIATES, P.C.

                                           Joseph R. Willie, II, D.D.S., J.D.
                                           4151 Southwest Freeway, Suite 490
                                           Houston, Texas 77027
                                           (713) 659-7330
                                           (713) 599-1659 (FAX)
                                           SBOT# 21633500
                                           attyjrwii@wisamlawyers.com
          July 29, 2015
                                           ATTORNEY FOR PETITIONER
                                           OLIN ANTHONY ROBINSON




______________________________________________________________________________
                          IDENTITY OF PARTIES AND COUNSEL



       The following is a complete list of all parties to the trial court’s final order, as well as the

names and addresses of all trial and appellate counsel.



PARTIES                                                COUNSEL

Petitioner:
Olin Anthony Robinson                                  Willie & Associates, P.C.
                                                       Joseph R. Willie, II, D.D.S., J.D.
                                                       4151 Southwest Freeway, Suite 490
                                                       Houston, Texas 77027
                                                       Trial and Appellate Counsel for Petitioner



Trial Court:
The Honorable Kemper Stephen Williams, III
Presiding via assignment
24th Judicial District Court
Jackson County, Texas



Respondent:
The State of Texas                                     Law Offices of Jim Vollers
                                                       Jim Vollers, Esquire
                                                       2201 Westover Road
                                                       Austin, Texas 78703
                                                       Appellate Counsel for Respondent

                                                       Jackson County District Attorney’s Office
                                                       Robert E. Bell, Esquire
                                                       Jackson County District Attorney
                                                       115 W. Main Street, Room 205
                                                       Edna, Texas 77957
                                                       Trial Counsel for Respondent




                                                  ii
                                                    TABLE OF CONTENTS

                                                                                                                             Page

IDENTITY OF PARTIES AND COUNSEL . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .                                ii

INDEX OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .                   v

STATEMENT REGARDING ORAL ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . .                                          vii

STATEMENT OF THE CASE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .                    viii

STATEMENT OF PROCEDURAL HISTORY . . . . . . . . . . . . . . . . . . . . . . . . . . . . .                                    viii

GROUND FOR REVIEW NO. 1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .                        1

           The Court of Appeals erred in reversing the order of the trial court on
            the basis that the trial court lacked the jurisdiction to enter the order
           of “shock probation” after remand from the Court of Appeals.

REASONS FOR REVIEW . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .                   1

GROUND FOR REVIEW NO. 2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .                        6

           The Court of Appeals erred in reversing the trial court’s order on the basis
           that the trial court lacked subject-matter jurisdiction over the Petitioner’s
           motion for “shock probation” after remand.

REASONS FOR REVIEW . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .                     6

GROUND FOR REVIEW NO. 3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .                          7

           The Court of Appeals did not have the subject-matter jurisdiction to
           entertain a direct appeal from a trial court granting continuing
           jurisdiction community supervision.

REASONS FOR REVIEW . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .                     7

PRAYER . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .     9

CERTIFICATE OF SERVICE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .                      10

CERTIFICATE OF COMPLIANCE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .                             10

APPENDIX



                                                                       iii
                      TABLE OF CONTENTS (cont’d)


Appendix 1 – Opinion of the Court of Appeals rendered on August 29, 2014.

Appendix 2 – Order of the Court of Appeals denying the Motion for Rehearing En
             Banc rendered on July 27, 2015.




                               iv
                                                INDEX OF AUTHORITIES

                                                                                                                                  Page(s)

CASES:

Basaldua v. State,
      558 S.W.2d 2 (Tex. Crim. App. 1977) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .                         8

Boykin v. State,
       818 S.W.2d 782 (Tex. Crim. App. 1991) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .                          3

Ex parte Dotson,
       76 S.W.3d 393 (Tex. Crim. App. 2002) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .                         2

Grimes v. State,
      807 S.W.2d 582 (Tex. Crim. App. 1991) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .                           4

Houlihan v. State,
      579 S.W.2d 213 (Tex. Crim. App. 1979) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .                           8

Keehn v. State,
      233 S.W.3d 348 (Tex. Crim. App. 2007) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .                           7

Leos v. State Emp. Workers’ Comp. Div.,
        734 S.W.2d 341 (Tex. 1987) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .                5

Lone Star Gas Co. v. Railroad Commission,
       767 S.W.2d 709 (Tex. 1989) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .                 6

Musgrove v. State,
      82 S.W.3d 34 (Tex. App.--San Antonio
      2002, pet. ref’d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .       4

McNutt v. State,
      188 S.W.3d 198 (Tex. Crim. App. 2006) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .                         3

Pippin v. State,
       271 S.W.3d 861 (Tex. App.--Amarillo
       2009, no pet.) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .     8

Roberts v. State,
       No. 04-10-00558-CR, 2010 WL 4523788
       (Tex. App.--San Antonio Nov. 10, 2010, pet. ref’d) . . . . . . . . . . . . . . . . . . . . . . .                             8




                                                                     v
                                          INDEX OF AUTHORITIES (cont’d)

                                                                                                                                Page(s)

Sanders v. State,
      832 S.W.2d 719 (Tex. App.--Austin
      1992, no pet.) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .           5

State v. Hardy,
        963 S.W.2d 516 (Tex. Crim. App. 1998) . . . . . . . . . . . . . . . . . . . . . . . . . . . . .                            4

State v. Robinson,
        No. 13-12-00121-CR, 2013 WL 1188101
        (Tex. App.--Corpus Christi Mar. 21, 2013, pet. ref’d) . . . . . . . . . . . . . . . . . . .                                1



CONSTITUTIONS:

U.S. CONST. amend. XIV . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2, 5, 7, 8

TEX. CONST., art. I, § 3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .    2, 5, 8

TEX. CONST., art. I, § 19 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2, 5, 7, 8



RULES AND STATUTES:

TEX. R. APP. P. 9 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .      10

TEX. R. APP. P. 43.2(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .       passim

TEX. R. APP. P. 47.1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .          7

TEX. CODE CRIM. PROC. art. 41.12, § 6 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .                   1, 5

TEX. CODE CRIM. PROC. art.44.29(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .                passim

TEX. CODE CRIM. PROC. art.44.29(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .                passim




                                                                      vi
                      STATEMENT REGARDING ORAL ARGUMENT



       Due to the fact that the Thirteenth Court of Appeals’ decision conflicts with prior

decisions of this Court and with the decisions of the Third, Fourth and Seventh Courts of

Appeals on the very same issues as set forth in the Petition for Discretionary Review and that the

current state of the law on these issues needs final clarification from this Court, the Petitioner,

Olin Anthony Robinson, requests oral argument in this case.




                                                  vii
                                   STATEMENT OF THE CASE



Nature of the Case:                                    This is an appeal brought by the State of
                                                       Texas with regard to the trial court’s
                                                       granting of “shock probation” to the
                                                       Defendant, Olin Anthony Robinson.

Trial Court:                                           The Honorable Kemper S. Williams, III,
                                                       Presiding via assignment,
                                                       24th Judicial District Court,
                                                       Jackson County, Texas.

Parties in the Court of Appeals:                       The State of Texas – Appellant;
                                                       Olin Anthony Robinson – Appellee.

Court of Appeals:                                      Court of Appeals for the Thirteenth Supreme
                                                       Judicial District of Texas; Opinion by
                                                       Justice Garza joined by Justices Rodriguez
                                                       and Benavides; State v. Robinson, No. 13-
                                                       13-00571-CR (Tex. App.--Corpus Christi
                                                       Aug.26, 2014, pet. filed) (Opinion attached,
                                                       Appendix 1).

Court of Appeals’ Disposition:                         Order of the trial court reversed and case
                                                       dismissed for want of jurisdiction.



                        STATEMENT OF PROCEDURAL HISTORY

       The Court of Appeals rendered its decision reversing the order of the trial court and

dismissing the case for want of jurisdiction on August 26, 2014. The Petitioner filed his Motion

for Rehearing En Banc on August 28, 2014. The Court of Appeals denied the Motion for

Rehearing En Banc on July 27, 2015. The Petition for Discretionary Review was filed with the

Clerk of this Court on July 28, 2015, by e-filing.




                                                viii
                          GROUND FOR REVIEW NO. 1

      THE COURT OF APPEALS ERRED IN REVERSING THE ORDER OF
      THE TRIAL COURT ON THE BASIS THAT THE TRIAL COURT
      LACKED THE JURISDICTION TO ENTER THE ORDER OF “SHOCK
      PROBATION” AFTER REMAND FROM THE COURT OF APPEALS.
      (State v. Robinson, No. 13-12-00121-CR, 2013 WL 1188101, at *2 (Tex.
      App.--Corpus Christi Mar. 21, 2013, pet. ref’d) ).

                             REASONS FOR REVIEW

      The Court of Appeals’ has decided an important question of state law in a
      way that conflicts with the applicable decisions of the Court of Criminal
      Appeals of Texas.

      The Court of Appeals’ decision conflicts with other Courts of Appeals’
      decisions on the same issue.

      The Court of Appeals’ interpretation of TEX. CODE CRIM. PROC. art. 41.12, §

6 is in direct conflict with the specific provisions contained in TEX. CODE CRIM.

PROC. art. 44.29(a), (b) and TEX. R. APP. P. 43.2(d) and stands the doctrine of

statutory construction “on its head.”

      It is uncontroverted and undisputed that the Petitioner timely filed his

motion for shock probation and it is also uncontroverted and undisputed that the

trial court timely held a hearing and granted the motion. The State complained that

it was not given the opportunity for a full evidentiary hearing and appealed the

ruling of the trial court. On the first appeal, the Court of Appeals remanded the

case to the trial court to afford the State a full evidentiary hearing. See, e.g., State

v. Robinson, No. 13-12-00121-CR, 2013 WL 1188101, at *2 (Tex. App.--Corpus
Christi Mar. 21, 2013, pet. ref’d). The trial court complied with the Court of

Appeals’ mandate and, after affording the State a full evidentiary hearing, granted

the motion for shock probation. The State brought this present appeal claiming that

the trial court did not have the jurisdiction to enter the order granting shock

probation after remand. The Court of Appeals issued its opinion agreeing with the

premise of the State. It is the Petitioner’s contention that the Court of Appeals’

opinion violates the doctrine of statutory construction and in the process violates

the doctrine of stare decisis and violates the Equal Protection and Due Process

Rights of the Appellee guaranteed by the Fourteenth Amendment to the United

States Constitution and Article I, §§ 3 and 19 of the Texas Constitution.

        The Court in Ex parte Dotson, 76 S.W.3d 393, 395 (Tex. Crim. App. 2002),

held:



              One of our general rules of statutory construction is that a more
              specific statute or rule will prevail over a more general one. (Citation
              omitted.)


(Emphasis added.)

        The Petitioner contends that TEX. CODE CRIM. PROC. art. 44.29(a), (b) and

TEX. R. APP. P. 43.2(d) are a specific statute and rule which directly control the

issue in the case at bar and they are both outcome determinative.



                                           2
      The Court in Boykin v. State, 818 S.W.2d 782, 785 (Tex. Crim. App. 1991),

succinctly and unambiguously held:



             When we interpret statutes . . ., we seek to effectuate the “collective”
             intent or purpose of the legislators who enacted the legislation.
             (Citation omitted.) We do so because our state constitution
             assigns the law making function to the Legislature while assigning the
             law interpreting function to the Judiciary. (Citation omitted.)

             When attempting to discern this collective legislative intent or
             purpose, we necessarily focus our attention on the literal text of the
             statute in question and attempt to discern the fair, objective meaning
             of that text at the time of its enactment. . . . We focus on the literal
             text also because the text is the only definitive evidence of what the
             legislators (and perhaps the Governor) had in mind when the statute
             was enacted into law. . . . Yet a third reason for focusing on the literal
             text is that the legislature is constitutionally entitled to expect the
             Judiciary will faithfully follow the specific text that was adopted.

             Thus, if the meaning of the statutory text, when read using the
             established canons of statutory construction relating to such text,
             should have been plain to the legislators who voted on it, we
             ordinarily give effect to that plain meaning.



(Emphasis added.)

      The Court of Appeals was required to give TEX. CODE CRIM. PROC. art.

44.29(a), (b) and TEX. R. APP. P. 43.2(d) their “plain meaning.” Moreover, the

Court of Appeals is required, under the doctrine of stare decisis, to interpret the

statute and rule as announced by the Court of Criminal Appeals of Texas. The

Court in McNatt v. State, 188 S.W.3d 198, 201 (Tex. Crim. App. 2006), held:
                                           3
              When 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.



(Emphasis added.) See also Grimes v. State, 807 S.W.2d 582, 583 (Tex. Crim.
App. 1991); Musgrove v. State, 82 S.W.3d 34, 37 (Tex. App.--San Antonio 2002,
pet. ref’d).

        The Court of Appeals did not and cannot cite to a case from the Court of

Criminal Appeals of Texas which would allow and uphold the contentions of the

State after the Court of Appeals remanded the case back to the trial court. The

cases cited by the Court of Appeals to buttress its opinion are totally inapplicable

as a matter of law.

        The Court of Criminal Appeals of Texas has, on more than one occasion,

interpreted and construed the “plain meaning” of TEX. CODE CRIM. PROC. art.

44.29(a), (b) and TEX. R. APP. P. 43.2(d). The interpretation, or lack thereof, by the

Court of Appeals of the aforementioned statute and rule is anathema to the

interpretation by the Court of Criminal Appeals of Texas and such interpretation

violates the doctrine of stare decisis in the process.

        The Court in State v. Hardy, 963 S.W.2d 516, 523 (Tex. Crim. App. 1998),

held:




                                           4
             When the legislature meets, after a particular statute has been
             judicially construed, without changing that statute, we presume the
             Legislature intended the same construction should continue to be
             applied to that statute.



      TEX. CODE CRIM. PROC. art. 44.29(a), (b) and TEX. R. APP. P. 43.2(d), by the

Court of Appeals’ remand without instructions, restored the Petitioner’s case to its

legal status before the first hearing and does not freeze the case in point of time

and the time limitations imposed by TEX. CODE CRIM. PROC. art. 42.12, § 6 are

totally not applicable to a hearing on remand, as interpreted by the Court of

Criminal Appeals of Texas. See also Sanders v. State, 832 S.W.2d 719, 722 (Tex.

App.--Austin 1992, no pet.). If the intent is clear, the court’s responsibility is to

interpret the statute as intended by the legislature, even when the legislature’s

intent is to overrule a court’s own previous opinion. Leos v. State Emp. Workers’

Comp. Div., 734 S.W.2d 341, 343 (Tex. 1987).

      The Court of Appeals has incorrectly interpreted the “plain meaning” of

TEX. CODE CRIM. PROC. art. 44.29(a), (b) and TEX. R. APP. P. 43.2(d) when

juxtaposed with TEX. CODE CRIM. PROC. art. 42.12, § 6 and in so doing has

violated the Equal Protection and Due Process Rights of the Petitioner as well as

violating the doctrine of stare decisis.




                                            5
                         GROUND FOR REVIEW NO. 2

      THE COURT OF APPEALS ERRED IN REVERSING THE TRIAL
      COURT’S ORDER ON THE BASIS THAT THE TRIAL COURT
      LACKED SUBJECT-MATTER JURISDICTION OVER THE
      PETITIONER’S MOTION FOR “SHOCK PROBATION” AFTER
      REMAND.

                            REASONS FOR REVIEW

      The Court of Appeals’ has decided an important question of state law in a
      way that conflicts with the applicable decisions of the Court of Criminal
      Appeals of Texas.

      The Court of Appeals’ decision conflicts with other Courts of Appeals’
      decisions on the same issue.

      In its opinion, the Court of Appeals completely ignored and refused to

address the Petitioner’s contention that TEX. CODE CRIM. PROC. art. 44.29(a), (b)

and TEX. R. APP. P. 43.2(d) control whether the trial court had the requisite

subject-matter jurisdiction to entertain the Petitioner’s motion for shock probation

on remand. That issue was briefed on pages 1-3 of the Brief of Appellee. The

Court of Appeals did not have the authority to not adjudicate an issue that was

properly briefed and before the Court of Appeals.

      The Supreme Court of Texas in Lone Star Gas Co. v. Railroad Commission,

767 S.W.2d 709, 710-711 (Tex. 1989), succinctly and unambiguously held:



             “The court of appeals is obliged to ‘address every issue raised and
             necessary to final disposition of the appeal.’ . . . The courts of appeals
             are not at liberty to disregard them. [T]he rules do mandate full
                                           6
                consideration of all issues raised to move the case as far as possible
                toward final disposition.”



(Emphasis added.) See also TEX. R. APP. P. 47.1.

      The Court of Criminal Appeals of Texas in Keehn v. State, 233 S.W.3d 348,

349 (Tex. Crim. App. 2007), completely adopted the Supreme Court of Texas’

interpretation and rationale concerning TEX. R. APP. P. 47.1. The Court of Appeals

violated the doctrine of stare decisis and has violated the Due Process Rights of the

Appellant guaranteed by the Fourteenth Amendment to the United States

Constitution and Article I, § 19 of the Texas Constitution by not addressing merits

of the issue.



                           GROUND FOR REVIEW NO. 3

      THE COURT OF APPEALS DID NOT HAVE THE SUBJECT-MATTER
      JURISDICTION TO ENTERTAIN A DIRECT APPEAL FROM A TRIAL
      COURT GRANTING CONTINUING JURISDICTION COMMUNITY
      SUPERVISION.

                               REASONS FOR REVIEW

      The Court of Appeals’ has decided an important question of state law in a
      way that conflicts with the applicable decisions of the Court of Criminal
      Appeals of Texas.

      The Court of Appeals’ decision conflicts with other Courts of Appeals’
      decisions on the same issue.



                                             7
      It is uncontroverted and undisputed that the State of Texas, by and through

the Jackson County District Attorney’s Office, brought forth a direct appeal of the

order of the trial court granting continuing jurisdiction community supervision

(“shock probation”) to the Petitioner. This action by the State not only violates the

doctrine of stare decisis, its action violates the Equal Protection and Due Process

Rights of the Petitioner guaranteed by the Fourteenth Amendment to the United

States Constitution and Article I, §§ 3 and 19 of the Texas Constitution.

      It is well-settled Texas law that there is no constitutional or statutory

authority permitting a direct appeal from an order granting or denying “shock

probation” or from an order modifying or refusing to modify the conditions of

“shock probation.” See, e.g., Houlihan v. State, 579 S.W.2d 213, 215-216 (Tex.

Crim. App. 1979); Basaldua v. State, 558 S.W.2d 2, 5 (Tex. Crim. App. 1977). See

also Pippin v. State, 271 S.W.3d 861, 863-864 (Tex. App.--Amarillo 2009, no

pet.); Roberts v. State, No. 04-10-00558-CR, 2010 WL 4523788, at *1-2 (Tex.

App.--San Antonio Nov. 10, 2010, pet. ref’d).

      Unless and/or until the Court of Criminal Appeals of Texas overrules its

holdings in Houlihan, Basaldua, and their progeny, the Court of Appeals was and

is bound by those decisions under the doctrine of stare decisis. The Court of

Appeals did not have the requisite subject-matter jurisdiction nor did it have the

legal authority to adjudicate the State’s appeal. To repeat, there is no case,


                                           8
constitutional provision and/or statute to confer subject-matter jurisdiction over the

State’s direct appeal. The State’s appeal should have been dismissed for want of

jurisdiction and the order of the trial court should have been affirmed.



                                     PRAYER

      For the foregoing reasons, Petitioner, Olin Anthony Robinson, requests that

the Court reverse the judgment of the Court of Appeals and enter judgment

affirming the order of the trial court in Cause No. 05-05-7221 or, in the alternative,

reverse the judgment of the Court of Appeals and remand the case to the Court of

Appeals to address the merits of the unadjudicated issues presented by the

Petitioner in this appeal.

                                       Respectfully submitted,

                                       WILLIE & ASSOCIATES, P.C.



                                    By:/s/ Joseph R. Willie, II, D.D.S., J.D.
                                       Joseph R. Willie, II, D.D.S., J.D.
                                       4151 Southwest Freeway, Suite 490
                                       Houston, Texas 77027
                                       (713) 659-7330
                                       (713) 599-1659 (FAX)
                                       SBOT# 21633500
                                       attyjrwii@wisamlawyers.com

                                       ATTORNEY FOR PETITIONER
                                       OLIN ANTHONY ROBINSON


                                          9
                         CERTIFICATE OF SERVICE

      I hereby certify that a true and correct copy of the foregoing document was
served via e-service to Robert E. Bell, Jackson County District Attorney, 115 W.
Main Street, Room 205, Edna, Texas 77957 and the State Prosecuting Attorney,
P.O. Box 12405, Capitol Station, Austin, Texas 78711, on the 28th day of July,
2015.

                                      /s/ Joseph R. Willie, II, D.D.S., J.D.
                                      Joseph R. Willie, II, D.D.S., J.D.

                      CERTIFICATE OF COMPLIANCE

      I certify that the Petition for Discretionary Review submitted complies with
TEX. R. APP. P. 9 and the word count of this document is 1,970. The word
processing software used to prepare the document and to calculate the word count
is Windows 7.

                                      /s/ Joseph R. Willie, II, D.D.S., J.D.
                                      Joseph R. Willie, II, D.D.S., J.D.




                                        10
APPENDIX
Appendix 1
                            NUMBER 13-13-00S71-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 . 13-1 0-065-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 Continu ing Jurisdiction Community Supervision ," commonly referred to

as "shock probation ."    See Neugebauer v. State, 266 SW.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 Rob inson'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 Rob inson'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. GODE GRIM. PROC . ANN. art.

44.01 (a)(2) (West. Westlaw through 2013 3d G.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. GODE GRIM . 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.W3d 11. 14 n. 2 (Tex. Grim. App. 2004). A trial court
       order granting shock probation after it has lost jurisdiction is void. Ex Parte
       Busby. 67 S.W3d 171. 173 (Tex. Grim. App . 2001) . overruled on other
       grounds. Ex Parte Hale. 117 S.w.3d 866 (Tex . Grim . App . 2003) . A void
       judgment is a "nullity" and can be attacked at any time. Ex Parte Patterson.
       969 S.W2d 16. 19 (Tex. Grim . App. 1998).

266 S.W3d 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
interpretation and application of the statute in McDonald, Neugebauer, and Hunt. See

McDonald, 642 S.W2d at 493; Neugebauer, 266 S.W3d 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.W2d 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
                   THE THIRTEENTH COURT OF APPEALS

                                   13-13-00571 -CR


                                  The State of Texas
                                          v.
                                Olin Anthony Robinson


                                   On Appeal from the
                     24th District Court of Jackson County, Texas
                              Trial Cause No. 05-5-7221


                                     JUDGMENT

      THE THIRTEENTH COURT OF APPEALS , having considered this cause on

appeal, concludes the appeal should be dismissed. The Court orders the appeal

DISMISSED in accordance with its opinion .

      We further order this decision certified below for observance.

August 26 , 2014
Appendix 2
                                                                                     FILE COPY

                                                                         NUECES COUNTY COURTHOUSE
CHIEF JUSTICE
                                                                         901 LEOPARD. 10TH FLOOR
  ROGELIO VALD EZ
                                                                         CORPUS CHRISTI . TEXAS 78401
                                                                         361-888-0416 (TEL )
JUSTICES
                                                                         36 1-888-0794 (FAX)
  NELDA V. RODRIGUEZ
  DORI CONTRERAS GARZA
                                                                         HIDALGO COUNTY
  GINA M. BENAVIDES
                                                                         ADMINISTRATION BLDG .
  GREGORY T. PERKES
  NORA L. LONGORIA                   (:ourt of ~pptal1S                  100 E. CANO. 5TH FLOOR
                                                                         EDIN BURG . TEXAS 78539
                                                                         956-31 8-2405 (TEL)
CLERK
  CECILE FOY GSANGER           'QCbtrttentb 19t~trttt of 'QI;exll~       956-318-2403 (FAX)

                                                                         www.txcoUrlS.govI13thcoa

                                         July 27,2015

      Hon. Jim Vollers                           Hon . Joseph R. Willie II
      Attorney At Law                            Attorney At Law
      2201 Westover Road                         4151 Southwest Freeway, Suite 490
      Austin, TX 78703                           Houston , TX 77027
      * DELIVERED VIA E-MAIL *                   * DELIVERED VIA E-MAIL *

      Hon. Robert E. Bell
      District Attorney
      115 W. Main Street, Rm . 205
      Edna, TX 77957
      * DELIVERED VIA E-MAIL *

      Re :      Cause No . 13-13-00571-CR
      Tr.Ct.No. 05-5-7221
      Style:    The State of Texas v. Olin Anthony Robinson

      Dear Sir/Madam:


           Appellee 's motion for rehearing en banc in the above cause was this day
      DENIED by this Court.



                                             Very truly yours,

                                               e~i.L~~
                                             Cecile Foy Gsanger, Clerk

      CFG:dsr

      cc:    State Prosecuting Attorney (DELIVERED VIA E-MAIL)
