                                      In The

                                 Court of Appeals
                        Ninth District of Texas at Beaumont
                                _________________

                               NO. 09-14-00072-CR
                               _________________

                       LASHONDA RUDOLPH, Appellant

                                         V.

                  THE STATE OF TEXAS, Appellee
__________________________________________________________________

                   On Appeal from the Criminal District Court
                           Jefferson County, Texas
                          Trial Cause No. 11-11650
__________________________________________________________________

                           MEMORANDUM OPINION

        Appellant Lashonda Rudolph appeals from the revocation of her community

supervision and imposition of sentence for the offense of driving while intoxicated

with a child passenger. For the reasons set forth below, we dismiss the appeal as

moot.

                                I.     Background

        Pursuant to a plea bargain agreement, Rudolph pleaded guilty to the offense

of driving while intoxicated with a child passenger, a state jail felony. See Tex.

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Penal Code Ann. § 49.045 (West 2011). The trial court adjudicated Rudolph guilty

and assessed her punishment at two years in state jail and a fine of $500. In

accordance with the plea agreement, the court suspended Rudolph’s sentence and

placed her on community supervision for a period of five years.

      Thereafter, the State filed a motion to revoke Rudolph’s community

supervision. On January 31, 2014, the trial court held a revocation hearing, during

which Rudolph pleaded “true” to eight violations of the conditions of her

community supervision. At the conclusion of the hearing, the trial court found that

Rudolph had violated the conditions of her community supervision, revoked her

community supervision, and imposed a sentence of confinement in state jail for a

period of two years. The trial court ordered Rudolph’s sentence to run

consecutively to two sentences that Rudolph had previously received for

convictions in Louisiana.

      Rudolph appealed the revocation of her community supervision and

imposition of sentence, raising two issues. In her first issue, Rudolph challenged

the trial court’s order cumulating her sentence in this case with her two sentences

for prior convictions in Louisiana. Specifically, Rudolph argued: (1) that the

cumulation order that was orally pronounced by the trial court conflicted with the

cumulation order in the written judgment, (2) that the evidence was insufficient to

                                        2
support the trial court’s order cumulating her sentences, and (3) that the trial

court’s cumulation order was not sufficiently specific to allow the Texas

Department of Criminal Justice to identify the prior Louisiana sentences. In her

second issue, Rudolph argued that the judgment revoking her community

supervision failed to give her all of the jail-time credit to which she was entitled.

      On April 28, 2016, we abated this appeal and remanded the case to the trial

court for clarification as to whether the prior convictions referenced in the

cumulation order contained in the written judgment were the same prior

convictions identified by the trial court in its oral pronouncement of sentence. See

Tex. R. App. P. 44.4. Following the abatement of the appeal, the trial court

conducted a hearing and entered a judgment nunc pro tunc to address the issues

raised in the abatement order. On May 26, 2016, this Court received a

supplemental record in connection with the proceedings that occurred in the trial

court while the appeal was abated. The supplemental record reflects that during the

hearing on the issues raised in the abatement order, Rudolph and her attorney

informed the trial court that Rudolph had already served her two-year sentence in

this case and had been released from state jail on July 21, 2015. The attorney for

the State likewise advised the trial court that it was his understanding that Rudolph

had already been released from state jail in connection with this case.

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      By letter dated June 6, 2016, this Court requested supplemental briefing

from the parties regarding whether the issues raised in this appeal have become

moot because Rudolph has discharged her sentence in this case. Both parties

submitted supplemental briefing on the mootness issue. In its supplemental brief,

the State contends that the appeal is moot because Rudolph has fully discharged

the complained-of sentence. In response, Rudolph does not dispute that she has

fully discharged her sentence, but instead argues that an exception to the mootness

doctrine applies and that we should therefore reach the merits of her appeal. After

reviewing the briefs, the supplemental briefs, and the record in this case, we

conclude that the appeal is moot and should be dismissed.

              II.   Mootness During the Pendency of the Appeal

      An appellate court may not decide a moot controversy. See Ex parte Flores,

130 S.W.3d 100, 104–05 (Tex. App.—El Paso 2003, pet. ref’d). “This prohibition

is rooted in the separation of powers doctrine in the Texas and United States

Constitutions that prohibits courts from rendering advisory opinions.” Nat’l

Collegiate Athletic Ass’n v. Jones, 1 S.W.3d 83, 86 (Tex. 1999). Generally, an

appeal becomes moot when there ceases to be a controversy between the litigating

parties. Flores, 130 S.W.3d 105. Further, an appeal becomes moot when the

judgment of the appellate court can no longer have an effect on an existing

                                        4
controversy or the rights of the parties. Jack v. State, 149 S.W.3d 119, 123 n.10

(Tex. Crim. App. 2004); State v. Garza, 774 S.W.2d 724, 727 (Tex. App.—Corpus

Christi 1989, pet. ref’d).

      A time-credit complaint may be rendered moot when an inmate is

completely discharged from confinement, control, or supervision. Ex parte

Canada, 754 S.W.2d 660, 663 (Tex. Crim. App. 1988); see also Campbell v. State,

Nos. 03-11-00658-CR, 03-11-00659-CR, 2013 WL 6805585, *1 (Tex. App.—

Austin Dec. 20, 2013, no pet.) (mem. op., not designated for publication); Kennedy

v. State, No. 09-00-309-CR, 2001 WL 995355, *1 (Tex. App.—Beaumont Aug.

29, 2001, pet. ref’d) (per curiam) (not designated for publication). Similarly, a

complaint that the trial court erred in cumulating a defendant’s sentence typically

becomes moot when the defendant fully discharges the complained-of sentence.

Stout v. State, 908 S.W.2d 552, 553 (Tex. App.—Fort Worth 1995, no pet.).

      Rudolph’s complaints on appeal pertain only to the trial court’s alleged

denial of jail-time credit and its order cumulating her sentence. Because it is

undisputed that Rudolph fully discharged her sentence in this case, Rudolph’s

appeal is moot unless one of the two recognized exceptions to the mootness

doctrine—namely, (1) the “collateral consequences” exception, or (2) the “capable



                                        5
of repetition, yet evading review” exception—applies. See Flores, 130 S.W.3d at

105; see also Canada, 754 S.W.2d at 663.

A.    The “Collateral Consequences” Exception

      The first exception to the mootness doctrine is the “collateral consequences”

exception. Flores, 130 S.W.3d at 105. This exception applies when a prejudicial

event occurs, and the effects of that event “continue[] to stigmatize helpless or

hated individuals long after the unconstitutional judgment ha[s] ceased to

operate.’” Id. (quoting In re Salgado, 53 S.W.3d 752, 757 (Tex. App.—El Paso

2001, no pet.)). The collateral consequences exception has been applied by federal

courts in criminal cases in which the adverse collateral consequences of a criminal

conviction are viewed as preserving the existence of the dispute even though the

convicted person has completely served the sentence imposed. See, e.g., Sibron v.

New York, 392 U.S. 40, 55–58 (1968); United States v. Villanueva-Diaz, 634 F.3d

844, 848–49 (5th Cir. 2011); Escobedo v. Estelle, 650 F.2d 70, 71 (5th Cir. 1981).

This exception has also been applied to preserve the existence of a time-credit

complaint, even though the defendant has completed his or her sentence, when

“direct or collateral legal consequences may flow from the wrongful denial of

earned time credit.” Canada, 754 S.W.2d at 663–64 (concluding that denial of

earned time credit had adverse collateral consequences on defendant, despite the

                                        6
fact that the defendant had discharged the complained-of sentence, where the

defendant was serving a second sentence that had been stacked onto the

complained-of sentence, and the denial of earned time credit on the complained-of

sentence would serve to delay the defendant’s eventual discharge date on the

second sentence).

      Rudolph argues that this appeal is not moot, despite the fact that she has

discharged her sentence in this case, because the State has failed to show “that

there is no possibility that any collateral legal consequences will be imposed” as a

result of the trial court’s denial of jail-time credit. 1 Rudolph relies on Sibron to

argue that the State had the burden to make such a showing. In Sibron, the

Supreme Court addressed whether appeals by two defendants challenging their

criminal convictions became moot when the defendants fully discharged their

sentences for those convictions during the pendency of their appeals. 392 U.S. at

50–58. In concluding that the appeals were not moot, the Court explained that

when a defendant challenges his or her conviction, collateral legal consequences

      1
        In her supplemental briefing, Rudolph addresses only the mootness of her
complaint regarding the trial court’s alleged denial of jail-time credit. She does not
address whether her complaint regarding the trial court’s cumulation order has
become moot. However, because Rudolph’s completion of her sentence in this case
potentially moots both of the issues raised on appeal, we analyze whether the
mootness doctrine and its exceptions apply to both of Rudolph’s complaints on
appeal.
                                          7
resulting from the conviction are presumed to exist. Id. at 55–56. According to the

Court, this presumption is justified by “the obvious fact of life that most criminal

convictions do in fact entail adverse collateral legal consequences.” Id. at 55. The

Court further explained that this presumption can only be overcome by a showing

“that there is no possibility that any collateral legal consequences will be imposed

on the basis of the challenged conviction.” Id. at 57.

      Unlike the defendants in Sibron, Rudolph does not challenge her conviction

on appeal. Instead, she complains only about the trial court’s purported denial of

jail-time credit and its order cumulating her sentence. See Canada, 754 S.W.2d at

663 (noting that defendant’s time-credit complaint did not challenge his

conviction, but instead challenged “the time necessary to fulfill his sentence”);

Young v. State, 579 S.W.2d 10, 10 (Tex. Crim. App. [Panel Op.] 1979) (concluding

that a defective cumulation order has no effect on the validity of a defendant’s

conviction). When a criminal defendant does not challenge his or her conviction on

appeal, the presumption of collateral consequences recognized in Sibron does not

apply. See United States v. Juvenile Male, 564 U.S. 932, 936 (2011) (per curiam)

(concluding that when a defendant challenges only an expired sentence, as opposed

to his or her conviction, Sibron’s presumption of collateral consequences does not

apply); Spencer v. Kemna, 523 U.S. 1, 14 (1998) (concluding that presumption of

                                          8
collateral consequences did not apply to prisoner’s challenge to the revocation of

his parole); Lane v. Williams, 455 U.S. 624, 631–33 (1982) (concluding that

Sibron’s presumption of collateral consequences did not apply where habeas

petitioners attacked only their sentences that had since expired, and not their

convictions); see also Russell v. Cockrell, No. Civ.A.4:02-CV-570-Y, 2002 WL

32332222, *2 (N.D. Tex. Dec. 13, 2002) (concluding that presumption of collateral

consequences does not apply to a complaint regarding the alleged denial of time

credit towards the completion of the defendant’s sentence). Under such

circumstances, the defendant bears the burden of identifying some ongoing

collateral consequence that is traceable to the alleged error and likely to be

redressed by a favorable judicial decision. See Juvenile Male, 564 U.S. at 936

(quoting Spencer, 523 U.S. at 7, 14).

      Rudolph has not identified any direct or collateral legal consequences that

she may suffer now or in the future as a result of the trial court’s alleged denial of

jail-time credit or as a result of the trial court’s allegedly erroneous cumulation

order. Further, nothing in the record reveals the existence of any direct or collateral

legal consequences that could potentially flow from the trial court’s alleged denial

of jail-time credit or its cumulation order, considering the undisputed fact that

Rudolph has fully discharged the complained-of sentence in this case.

                                          9
Accordingly, we conclude that the collateral consequences exception to the

mootness doctrine does not apply in this case. See Canada, 754 S.W.2d at 663.

B.    The “Capable of Repetition, yet Evading Review” Exception

      The second exception to the mootness doctrine is when a claim is “‘capable

of repetition, yet evading review.’” Pharris v. State, 165 S.W.3d 681, 687–88

(Tex. Crim. App. 2005). In the absence of a class action, this exception is “‘limited

to the situation where two elements combine: 1) the challenged action was in its

duration too short to be fully litigated prior to its cessation or expiration, and 2)

there was a reasonable expectation that the same complaining party would be

subjected to the same action again.’” Ex parte Bohannan, 350 S.W.3d 116, 119

(Tex. Crim. App. 2011) (quoting Weinstein v. Bradford, 423 U.S. 147, 148–49

(1975) (per curiam)).

      As noted, Rudolph has not appealed her conviction, and it is undisputed that

she has fully discharged her sentence in this case. Therefore, to conclude that the

“capable of repetition, yet evading review” exception applies, we would essentially

have to conclude, among other things, that there is a “reasonable expectation” that

Rudolph will again commit a criminal offense and that she will ultimately be

convicted and sentenced for that offense. See Bohannan, 350 S.W.3d at 119.

However, in determining the applicability of the “capable of repetition, yet evading

                                         10
review” exception, courts are generally “‘unwilling to assume that the party

seeking relief will repeat the type of misconduct that would once again place him

or her at risk of that injury.’” Ex parte Nelson, 815 S.W.2d 737, 739 (Tex. Crim.

App. 1991) (quoting Honig v. Doe, 484 U.S. 305, 320 (1988)) (refusing to assume

that a prisoner would violate parole conditions in the future); accord Bohannan,

350 S.W.3d at 119–20 (refusing to assume that habeas applicant would “again be

held in custody facing the prospect of a preliminary hearing to determine whether

there is probable cause to believe he violated a condition of his parole”); Williams

v. Lara, 52 S.W.3d 171, 184–85 (Tex. 2001) (refusing to assume that complaining

parties would commit a crime in the future so as to again be incarcerated in the

correctional facility with the complained-of practices and explaining that the

complainants were “required by law to prevent their own recidivism”). Nothing in

the record indicates that any criminal charges are currently pending or are expected

to be filed against Rudolph, and Rudolph does not suggest that she anticipates

violating some criminal law in the future. Moreover, even assuming that we could

reasonably expect Rudolph to commit another criminal offense in the future and

that she would be convicted and sentenced for that offense, we cannot say with any

reasonable degree of certainty: (1) that Rudolph would be entitled to receive, yet

be denied, jail-time credit towards her sentence for that offense, or (2) that the trial

                                          11
court could or would enter an order cumulating her sentence in that case with

another existing sentence. As such, the risk that Rudolph will again be subjected to

the alleged actions of which she complains is purely speculative. We therefore

conclude that the “capable of repetition, yet evading review” exception does not

apply.

         Because neither of the exceptions to the mootness doctrine apply in this

case, we conclude that Rudolph’s appeal is moot. We therefore dismiss the appeal.

See Tex. R. App. P. 43.2(f).

         APPEAL DISMISSED.



                                       _____________________________
                                           CHARLES KREGER
                                                 Justice

Submitted on June 30, 2014
Opinion Delivered August 10, 2016
Do not publish

Before Kreger, Horton, and Johnson, JJ.




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