                                     In The

                               Court of Appeals

                    Ninth District of Texas at Beaumont

                              __________________

                              NO. 09-19-00215-CR
                              __________________

                         EX PARTE RUHIJE M. HEAD

__________________________________________________________________

                On Appeal from the 75th District Court
                       Liberty County, Texas
                      Trial Cause No. WR01469
__________________________________________________________________

                         MEMORANDUM OPINION

      In August 2016, a grand jury indicted Appellant Ruhije Head for the offense

of theft of property in an amount greater than or equal to $1,500 but less than

$20,000. See Tex. Penal Code Ann. § 31.03(e)(4)(A). Pursuant to a plea bargain

agreement, Head pleaded guilty, and the trial court deferred adjudication, placed

Head on community supervision for a period of ten years, and ordered restitution in

the amount of $18,500.

      In March 2019, the State filed a motion to revoke Head’s unadjudicated

community supervision. Head filed an application for writ of habeas corpus seeking
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relief from an order or judgment of conviction under article 11.072. See Tex. Code

Crim. Proc. Ann. art. 11.072. In her application, she argued that under article

42A.553, the maximum period of community supervision a judge may impose for a

state jail felony is five years. Head argued that the order deferring adjudication and

imposing community supervision was “invalid and/or unconstitutional” because ten

years exceeds the maximum period authorized for community supervision for a state

jail felony.

       At the habeas hearing, the State argued that article 42A.103 controls deferred

adjudication community supervision and provides that in a felony case, the period

of deferred adjudication community supervision may not exceed ten years. The State

further argued that “the sentence has never been assessed since it was deferred.” The

trial court noted that the Code of Criminal Procedure authorizes a trial court to

extend community supervision up to ten years. See id. art. 42A.553. The trial court

concluded that the ten-year period was “an illegal condition of probation[]” that

could be modified upon presentation of a written motion to amend the terms because

“there has not been an adjudication in the case.” The court further explained:

              Well, in the court’s opinion the distinction to be made in this
       particular case is that this is an order of deferred. This is not a finding
       and a sentence on a finding of guilt and a sentence -- the defendant has
       not been sentenced.


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             Therefore, it cannot be argued that the sentence in this case is
      illegal because the defendant has not been sentenced. There has been
      no finding of guilt. That finding was deferred.
             ....
             It’s the court’s opinion that there is no sentence in this case. It
      cannot be an illegal sentence which forms the basis of the 11.072,
      application for habeas relief. Your application for habeas relief is
      denied.
             Now, the court is going to modify the conditions of probation. It
      believes it has the authority to do so.

The trial court concluded that the ten-year period imposed exceeded permissible

limits, the trial court then denied Head’s application for habeas, and modified the

conditions of community supervision to state a term of five years. Head appealed the

court’s denial of her application for writ of habeas corpus.1

      We review the denial of an application for writ of habeas corpus under an

abuse of discretion standard. Kniatt v. State, 206 S.W.3d 657, 664 (Tex. Crim. App.

2006); Ex parte Klem, 269 S.W.3d 711, 718 (Tex. App.—Beaumont 2008, pet.

ref’d). We consider the entire record and review the facts in the light most favorable

to the trial court’s ruling. Kniatt, 206 S.W.3d at 664; Klem, 269 S.W.3d at 718. We

afford almost total deference to the trial court’s determination of historical facts

supported by the record, especially findings that are based on an evaluation of


      1
         In August 2019, the trial court held a hearing on the State’s motion to revoke
and found Head had violated more than one term of her community supervision,
adjudicated her guilty, and assessed punishment at two years in state jail and
restitution at $18,500.
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credibility and demeanor. Klem, 269 S.W.3d at 718. We afford the same deference

to the trial court’s rulings on the application of the law to fact questions when the

resolution of those questions turns on an evaluation of credibility and demeanor. Id.

If the trial court’s resolution of the ultimate issues turns on an application of legal

standards, we review the determination de novo. Id.

      Article 11.072 establishes the procedures for application for habeas relief

from “an order or a judgment of conviction ordering community supervision.” See

Tex. Code Crim. Proc. Ann. art. 11.072. The application must challenge the legal

validity of “the conviction for which or order in which community supervision was

imposed[]” or the conditions of community supervision. Id. art. 11.072, § 2(b).

      At issue in this matter are articles 42A.103 and 42A.553 of the Code of

Criminal Procedure. Article 42A.103 provides, in relevant part, that “[i]n a felony

case, the period of deferred adjudication community supervision may not exceed 10

years.” Id. art. 42A.103(a). Article 42A.553 provides, in relevant part, that “[t]he

maximum period of community supervision a judge may impose under this

subchapter is five years, except that the judge may extend the maximum period of

community supervision under this subchapter to not more than 10 years.” Id. art.

42A.553(a). Article 42A.553 appears in subchapter L, “State Jail Felony Community

Supervision[,]” which pertains to placement on community supervision after

                                          4
sentencing. See id. art. 42A.551(a). Article 42A.103 appears in subchapter C,

“Deferred Adjudication Community Supervision.” Id. art. 42A.103.

      The Court of Criminal Appeals has explained that a conviction, “regardless of

the context in which it is used, always involves an adjudication of guilt.” McNew v.

State, 608 S.W.2d 166, 172 (Tex. Crim. App. 1978); see also Ex parte Evans, 964

S.W.2d 643, 647 (Tex. Crim. App. 1998) (construing “conviction” to mean “a

judgment of guilt and the assessment of punishment”); Hurley v. State, 130 S.W.3d

501, 505 (Tex. App.—Dallas 2004, no pet.) (same). Granting a defendant deferred

adjudication does not constitute an adjudication of guilt. See Tex. Code Crim. Proc.

Ann. art. 42A.101(a) (formerly codified at Tex. Code Crim. Proc. Ann. art. 42.12,

§ 5(a)) (judge may defer further proceedings without entering adjudication of guilt

and place defendant on community supervision); McNew, 608 S.W.2d at 172

(concluding that since procedures delineated in article 42.12 do not involve

adjudication of guilt until after probation is revoked, “a trial judge’s action in

deferring the proceedings without entering an adjudication of guilt is not a

‘conviction[]’”).

      In this case, article 42A.103 applies to the order deferring adjudication and

placing Head on community supervision, and article 42A.103 permits a term of up

to ten years of community supervision when a person is placed on deferred

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adjudication. See Tex. Code Crim. Proc. Ann. art. 42A.103(a). Head had not been

convicted when she was placed on community supervision, so the five-year

limitation in article 42A.553 did not apply. See id. art. 42A.553; McNew, 608 S.W.2d

at 172. Therefore, the trial court did not err by denying Head’s application for writ

of habeas corpus and concluding that there was no illegal or invalid sentence. See

Tex. Code Crim. Proc. Ann. art. 11.072, § 2(b); Klem, 269 S.W.3d at 718. The trial

court did not abuse its discretion. We overrule Appellant’s issue and affirm the trial

court’s judgment.

      AFFIRMED.



                                                    _________________________
                                                        LEANNE JOHNSON
                                                              Justice

Submitted on October 21, 2019
Opinion Delivered November 20, 2019
Do Not Publish

Before McKeithen, C.J., Horton and Johnson, JJ.




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