                             NUMBER 13-12-00120-CR

                            COURT OF APPEALS

                  THIRTEENTH DISTRICT OF TEXAS

                    CORPUS CHRISTI – EDINBURG

THE STATE OF TEXAS,                                                          Appellant,

                                            v.

JEAN ROBINSON
A/K/A FLORIA JEAN ROBINSON,                                                  Appellee.


                    On appeal from the 24th District Court
                         of Jackson County, Texas.


                         MEMORANDUM OPINION
               Before Justices Rodriguez, Garza, and Perkes
                  Memorandum Opinion by Justice Garza
       This appeal by the State challenges the trial court’s February 2, 2012 judgment

granting appellee Jean Robinson’s a/k/a Floria Jean Robinson’s motion for “shock

probation.” See TEX. CODE CRIM. PROC. ANN. art. 42.12, § 15(f)(2) (West Supp. 2011)

(providing for trial court’s authority to grant “shock probation” to a person confined in a
state jail facility). By two issues, the State contends that the trial court erred in granting

appellee’s motion. We reverse the trial court’s judgment and render judgment denying

appellee’s motion for continuing jurisdiction community supervision.

                                         I. BACKGROUND

        A jury found appellee guilty of the state-jail felony offense of evading arrest or

detention with a vehicle, see TEX. PENAL CODE ANN. § 38.04(a), (b)(1)(B) (West Supp.

2011), and imposed punishment of two years’ confinement in state jail and a $10,000

fine.   The trial court’s judgment, entered on February 10, 2010, ordered appellee’s

sentence to be “executed.” Appellee appealed her conviction, and this Court affirmed

her conviction. See Robinson v. State, No. 13-10-064-CR, 2011 Tex. App. LEXIS 1844,

at *2 (Tex. App.—Corpus Christi March 10, 2011, pet. ref’d) (mem. op., not designated

for publication). On December 20, 2011, this Court issued its mandate.

        On December 28, 2011, appellee filed a “Motion for Continuing Jurisdiction

Community Supervision” requesting the trial court to grant her community supervision. 1

On February 2, 2012, the trial court entered a “Judgment of Conviction by Court—

Waiver of Jury Trial,” which assessed punishment at two years’ confinement in state jail

and a $10,000 fine, but suspended the punishment and placed appellee on community

supervision for five years.      The judgment recited that “[t]he State appeared by her

District Attorney.”

        On March 30, 2012, the State filed a bill of exception, which asserted that,

contrary to the recitations in the February 2, 2012 judgment, the trial court did not hold a


        1
          The motion recited that appellee began serving her sentence the same day the motion was
filed, December 28, 2011. We note that the motion incorrectly requested community supervision
“pursuant to TEX. CODE CRIM. PROC. art. 42.12, § 6(a),” which applies to defendants sentenced to
imprisonment in the institutional division of the Texas Department of Criminal Justice. See TEX. CODE
CRIM. PROC. ANN. art. 42.12, § 6(a) (West Supp. 2011).
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hearing on that date, and neither appellee, appellee’s counsel, nor the State was

present. The trial court granted the State’s bill of exception on July 25, 2012. This

appeal followed.2

                                                II. DISCUSSION

       We first note that appellee filed a motion to dismiss for want of jurisdiction in this

Court challenging our jurisdiction to hear this appeal. Appellee argued that the State

had no constitutional or statutory authority to bring this appeal. The State argued in

response that under code of criminal procedure article 44.01(a)(2), it has the right to

appeal an order that “arrests or modifies a judgment.” See TEX. CODE CRIM. PROC. ANN.

art. 44.01 (a)(2) (West Supp. 2011). We agreed with the State and denied the motion to

dismiss. See State v. Gutierrez, 129 S.W.3d 113, 115 (Tex. Crim. App. 2004) (holding

that article 44.01(a)(2) authorizes the State to appeal a trial court order that modifies its

previous judgment); State v. Posey, 300 S.W.3d 23, 26 (Tex. App.—Texarkana 2009),

aff’d, 2011 Tex. Crim. App. LEXIS 3 (Tex. Crim. App. Jan. 12, 2011) (holding that State

has right to appeal the trial court’s order granting shock community supervision

pursuant to article 44.01(a)(2) relating to the arrest or modification of judgment). The

State has the right to appeal the order at issue under article 44.01(a)(2) because the

order “arrest[ed] or modifie[d] a judgment.”                  See TEX. CODE CRIM. PROC. ANN. art.

44.01(a)(2).

       By its two issues, the State contends that the trial court erred in granting

appellee’s motion for community supervision because: (1) it granted the order without

conducting a hearing as required by article 42.12, section 15(f)(3) of the code of criminal

procedure (issue one); and (2) it granted the motion before appellee had served

       2
           Appellee has not filed a brief to assist us in our disposition of this appeal.
                                                        3
seventy-five days in state jail as required by article 42.12, section 15(f)(2) of the code of

criminal procedure (issue two).

       The State correctly notes that appellee’s motion requested the trial court to grant

community supervision pursuant to article 42.12, section 6(a), but that provision applies

to defendants sentenced to imprisonment in the institutional division of the Texas

Department of Criminal Justice. See id. art. 42.12, § 6(a) (West Supp. 2011). Section

15(f)(2) applies to defendants, such as appellee, sentenced to a term in state jail. Id.

art. 42.12, § 15(f)(2); see also State v. Weems, Nos. 05-02-239-CR & 05-02-240-CR,

2002 Tex. App. LEXIS 5031, at *5–6, *9 (Tex. App.—Dallas July 16, 2002, no pet.)

(mem. op., not designated for publication).          The trial court’s February 2, 2012

“Judgment of Conviction by Court—Waiver of Jury Trial” recites “§ 42.12 15A2 Penal

Code” [sic] as the “statute for offense.”

       The State argues that “it appears that the trial court did have jurisdiction over this

defendant in this cause . . . under [a]rticle 42.12, [s]ection 15(f)(2) [of the code of

criminal procedure] . . . .” Article 42.12, section 15(f)(2) provides:

       The court retains jurisdiction over the defendant for the period during
       which the defendant is confined in a state jail. At any time after the 75th
       day after the date the defendant is received into the custody of a state jail,
       the judge on the judge’s own motion, on the motion of the attorney
       representing the state, or on the motion of the defendant may suspend
       further execution of the sentence and place the defendant on community
       supervision under the conditions of this section.

TEX. CODE CRIM. PROC. ANN. art. 42.12, § 15(f)(2) (emphasis added). Section 15(f)(3)

further provides, in relevant part, that:    “The judge may deny [a motion requesting

continuing jurisdiction community supervision] without a hearing but may not grant the

motion without holding a hearing and providing the attorney representing the state and



                                              4
the defendant the opportunity to present evidence on the motion.”                         Id. § 15(f)(3)

(emphasis added).

        The record before us does not establish that appellee has served any time in

state jail.3 Nor does the record establish that a hearing was held. See id. In its reply to

appellee’s motion to dismiss, the State asserted that appellee was placed in the

Jackson County jail, but was granted community supervision and released before she

was transferred to a state jail. Appellee’s motion for continuing jurisdiction community

supervision stated that she began serving her sentence on December 28, 2011. Even

assuming that appellee began serving her sentence on December 28, 2011, and

assuming that the trial court’s jurisdiction over appellee continued from that date (even

though appellee was incarcerated in county jail, not state jail), appellee was

incarcerated for less than the seventy-five days required under article 42.12, section

15(f)(2). See id. § 15(f)(2); see also Pippin v. State, 271 S.W.3d 861, 863 (Tex. App.—

Amarillo 2009, no pet.) (“We note that article 42.12, § 15(f)(2) requires a defendant to

be in custody for a minimum of seventy-five days before the trial court may suspend

further execution of a sentence and grant shock probation.”).

        Assuming, but not deciding, that the trial court had jurisdiction over appellee

pursuant to article 42.12, section 15(f)(2), the trial court erred in granting appellee’s

motion for community supervision without holding a hearing and providing the State an

opportunity to present evidence as required by section 15(f)(3). See TEX. CODE CRIM.

PROC. ANN. art. 42.12, § 15(f)(3); see also Weems, 2002 Tex. App. LEXIS 5031, at *5–6


        3
           Based on the affidavit of Jim Omecinski, the jail administrator for the Jackson County Detention
Center, it appears that appellee was incarcerated in the Jackson County Detention Center on February 2,
2012.

                                                    5
(“The only limitation on the trial court’s authority to grant shock probation [for a person in

a state jail facility] is that, before granting a motion for shock probation, it must hold a

hearing and allow the defendant and the State ‘the opportunity to present evidence on

the motion.’”). The trial court’s order granting the State’s bill of exception established

that no hearing was held before the trial court granted appellee’s motion.

                                           III. CONCLUSION

        We hold that the trial court erred in granting appellee’s motion for continuing

jurisdiction community supervision. We sustain the State’s first issue. We reverse the

February 2, 2011 judgment of the trial court and, because the record affirmatively

demonstrates appellee’s ineligibility for shock probation, being incarcerated for less than

seventy-five days, we render judgment denying appellee’s motion for continuing

jurisdiction community supervision.4




                                                        ________________________
                                                        DORI CONTRERAS GARZA
                                                        Justice
Do not publish.
TEX. R. APP. P. 47.2(b).

Delivered and filed the
21st day of March, 2013.




        4
          We note that nothing in our opinion precludes the trial court from considering placing appellee
on continuing jurisdiction community supervision in compliance with article 42.12, sections 15(f)(2) and
15(f)(3). TEX. CODE CRIM. PROC. ANN. art. 42.12, §§ 15(f)(2), 15(f)(3) (West Supp. 2011).
                                                   6
