                               COURT OF APPEALS
                               SECOND DISTRICT OF TEXAS
                                    FORT WORTH

                                  NO. 02-11-00156-CR


April Hope Whitson                        §   From the 90th District Court

                                          §   of Young County (08376)

v.                                        §   March 14, 2013

                                          §   Opinion by Justice Gardner

The State of Texas                        §   (nfp)

                                     JUDGMENT

       This court has considered the record on appeal in this case and holds that

there was no error in the trial court’s judgment. It is ordered that the judgment of

the trial court is affirmed.


                                       SECOND DISTRICT COURT OF APPEALS




                                       By_________________________________
                                         Justice Anne Gardner
                         COURT OF APPEALS
                          SECOND DISTRICT OF TEXAS
                               FORT WORTH

                              NO. 02-11-00156-CR


APRIL HOPE WHITSON                                                    APPELLANT

                                         V.

THE STATE OF TEXAS                                                          STATE


                                      ----------

          FROM THE 90TH DISTRICT COURT OF YOUNG COUNTY

                                      ----------

                         MEMORANDUM OPINION1

                                      ----------

                                   Introduction

      Appellant April Hope Whitson pleaded guilty to the second-degree felony

of burglary of a habitation.2 The trial court deferred a finding of guilt and placed

her on community supervision.           After extending Appellant’s community

supervision two times, the trial court adjudicated Appellant guilty and sentenced
      1
       See Tex. R. App. P. 47.4.
      2
       See Tex. Penal Code Ann. § 30.02(a)(3), (c)(2) (West 2011).


                                          2
her to eight years’ confinement. Appellant asserts in two issues that the trial

court lacked jurisdiction to revoke her community supervision because the State

had filed its third motion to adjudicate her guilt after her community supervision

had expired. We affirm.

                                   Applicable Law

      When the trial court defers adjudication of a defendant’s guilt and places

the defendant on community supervision, the trial court retains jurisdiction over

the defendant for the duration of community supervision imposed and may

modify the community supervision.3 See Tex. Code Crim. Proc. Ann. art. 42.12,

§§ 5(a), (b), 20, 22 (West Supp. 2012). “The judge may extend a period of

community supervision on a showing of good cause under this section as often

as the judge determines is necessary, but the period of community supervision in

a first, second, or third degree felony case may not exceed 10 years . . . .” Id.

art. 42.12, § 22(c); see id. art. 42.12, § 5(a).

      At the expiration of the period of community supervision imposed, the trial

court, if it has not proceeded to an adjudication of guilt, must “dismiss the

proceedings against the defendant and discharge him.” Id. art. 42.12, § 5(c).

The trial court, however, retains jurisdiction to proceed with an adjudication of

guilt, despite the expiration of the term of community supervision imposed, “if


      3
       The code of criminal procedure states that “community supervision”
includes deferred adjudication. See Tex. Code Crim. Proc. Ann. art. 42.12,
§ 2(2)(A) (West Supp. 2012).


                                           3
before the expiration the attorney representing the state files a motion to proceed

with the adjudication and a capias is issued for the arrest of the defendant.” Id.

art. 42.12, § 5(h); see id. art. 42.12, §§ 21(c) (West Supp. 2012), 22(c); see also

In re Hancock, 212 S.W.3d 922, 929 (Tex. App.—Fort Worth 2007, orig.

proceeding).

                      Factual and Procedural Background

      On April 5, 2002, Appellant pleaded guilty pursuant to a plea bargain to the

second-degree felony offense of burglary of a habitation. The trial court deferred

a finding of guilt and placed Appellant on community supervision for five years.

The trial court’s order listed April 5, 2002, as both the judgment date and the

“date to commence.”

      On January 21, 2005, the State filed a motion to adjudicate Appellant

guilty, alleging that she had violated several conditions of her supervision. On

March 28, 2006, the trial court ordered that Appellant’s conditions of supervision

be “amended and extended for a period of 1 year, with said community

supervision to henceforth terminate on the 6th day of April 2008.”

      In March 2008, the State filed a second motion to adjudicate Appellant

guilty, alleging that she had violated several conditions of her supervision. On

March 31, 2008, the trial court ordered the Young County District Clerk to issue a

capias for Appellant’s arrest, and the district clerk did so that same day. On July

18, 2008, the trial court ordered that Appellant’s conditions of supervision be




                                        4
“amended and extended for a period of 18 months, with said community

supervision to henceforth terminate on the 6th day of October 2009.”4

      The State subsequently filed a third motion to adjudicate Appellant’s guilt,

which is file-stamped October 5, 2009.        On October 5, 2009, the trial court

ordered the district clerk to issue a capias for Appellant’s arrest, which the district

clerk did that same day.

      On January 31, 2011, the trial court held a hearing on the State’s motion to

adjudicate Appellant’s guilt. Appellant pleaded true to the State’s allegations,

and after both sides presented evidence, the trial court adjudicated Appellant

guilty and sentenced her to eight years in prison.

      Appellant timely filed a motion for new trial on February 23, 2011, and an

amended motion for new trial on March 2, 2011. On March 4, 2011, Appellant

filed a Plea to the Jurisdiction and Motion to Vacate Judgment and Sentence,

which provided in part:

            The deferred adjudication for [Appellant] expired at midnight
      on October 4, 2009, which is seven years and six months following
      her plea of April 5, 2002.


      4
        The order also stated in a subsequent paragraph that Appellant’s
community supervision was “extended for a period of 1 year, . . . to henceforth
terminate on the 6th day of October 2009”; however, as discussed in the opinion
below, Appellant acknowledges that “[t]he addition of the incorrect termination
language of October 6, 2009 indicates that the additional time was intended to be
a period of eighteen months rather than a one year period,” although she
qualifies that “the termination language is a miscalculation of the end of the
probation term as recited by previous cases and not a reflection of an
assessment of a ‘plus two days’ additional period of probation.”


                                          5
             Following the expiration of the deferred adjudication, the court
      lost jurisdiction to take any further action with regard to the case,
      unless at the time the deferred expired, there had been a motion to
      proceed to adjudicate in this case. The filing that occurred on
      October 5, 2009 was too late. See the case of Nesbit v. State, 227
      S.W.3d 64 (Tex. Crim. App. 2007) attached hereto.[5]

      On March 23, 2011, the trial court conducted a hearing on Appellant’s plea

to the jurisdiction. A portion of the hearing is as follows:

             THE COURT: What about that the order that extended, both
      of them, specifically gave a date that it was extended to? One was
      April 6th of 2008 and the other one wasn’t until October 6th of 2009
      specifically set forth in the order.

             [DEFENSE COUNSEL]: Our position on that, Your Honor, is
      that that is a -- what the Court was doing was calculating what the
      year -- or in one instance a year and another instance of eighteen
      months. And that because of the fact that the Court did not extend
      the probation, for example, one year and two days, or eighteen
      months and two days, in other words the --

             THE COURT: You’re saying the one year prevails over the
      specific date. Right?

             [DEFENSE COUNSEL]: Yes. That’s exactly what I’m saying.

             THE COURT: Okay.

           [DEFENSE COUNSEL]: That in a dispute [where there]
      appears to be -- you know, if they can’t be both the same, that it’s

      5
        In Nesbit, the court of criminal appeals granted the State’s petition for
discretionary review that asked, “How should the date of the expiration of a
period of community supervision be calculated?” See id. at 67. The court of
criminal appeals held that a period of supervision includes the first day in which
“restrictions upon freedom operate” and excludes the anniversary date. Id. at 69.
For instance, the trial court placed Nesbit on community supervision for ten
years, beginning on April 29, 1994. Id. at 66. The court of criminal appeals held
that the State filed its April 29, 2004 revocation motion one day too late. See id.
at 69.


                                           6
      the year’s extension and that that was recognized by the state that it
      was a matter of two years and six months extension. It was not a
      matter of two years, six months, and two days. Because since the
      Nesbit case came down in ’07, that’s clearly been the law as to when
      a probation would end.

            THE COURT: All right. Thank you. [The State.]

            [STATE]: Your Honor, I don’t know of any authority that
      [defense counsel] is citing saying that the eighteen months takes
      precedence over the specific date in the Court’s order, and that’s not
      addressed in Nesbit.

             . . . [U]nder Nesbit, the state would have had to have filed its
      motion prior to midnight on October the 5th of ’09, and that’s exactly
      what the state did, Your Honor, and we’re saying the Court did not
      lose jurisdiction.

The trial court took the issue under advisement and several days later issued a

letter stating, “After careful consideration of the above referenced cause of

action, please be advised that the Plea to the Jurisdiction is hereby denied.”

                             The Parties’ Positions

      Appellant asserts in two issues that the trial court lacked jurisdiction to

revoke her community supervision because the State filed its adjudication motion

after her period of community supervision had ended. In her first issue, Appellant

asserts that the State filed its motion “one day after the seven and one half year

period of probation ended,” and in her second issue, she asserts that the State

filed its motion “over six months after the seven year period of probation ended.”

Appellant explains these alternative arguments by noting that the trial court’s

second extension order contains contradictory language; that is, the first

paragraph of the trial court’s order stated that it was extending Appellant’s


                                         7
community supervision “for a period of 18 months, . . . to henceforth terminate on

the 6th day of October 2009,” while the order’s final paragraph stated that it was

extending Appellant’s community supervision “for a period of 1 year, . . . to

henceforth terminate on the 6th day of October 2009.”

      We overrule Appellant’s second issue because she acknowledges on

appeal: “The addition of the incorrect termination language of October 6, 2009

indicates that the additional time was intended to be a period of eighteen months

rather than a one year period . . . .”6 Additionally, at the plea to the jurisdiction

hearing, Appellant stated,

      The first paragraph refers to an eighteen-month extension, and then
      the actual order itself only extends the period for one year, and then
      picks up on this 6th day of October. And, again, that extension,
      whether it was for one year or for eighteen months -- and we’re not
      contending that it was -- it was understood by everybody to be an
      eighteen-month extension, but at the eighteenth month, which is not
      eighteen months and two days of an extension.

      As to the remaining issue, Appellant contends that she was

      assessed a total sentence of seven years and six month[s] of
      community supervision, deferred adjudication, beginning April 5,
      2002. The ending date is calculated under the case of Nesbit v.
      State, infra, to be October 4, 2009. The [m]otion to adjudicate was
      filed on October 5, 2009.

While Appellant acknowledges that the trial court extended her five-year

community supervision two times and entered definite termination dates—that is,

      6
       Appellant qualifies, however, that “the termination language is a
miscalculation of the end of the probation term as recited by previous cases and
not a reflection of an assessment of a ‘plus two days’ additional period of
probation.”


                                         8
the trial court extended Appellant’s community supervision once for one year to

end on April 6, 2008, and once for eighteen months to end on October 6, 2009—

she characterizes the April 6, 2008 termination language as “a clerical error

based on an incorrect calculation of the one year ending date,” and she

characterizes the October 6, 2009 termination language as “a miscalculation of

the end of the probation term as recited by previous cases and not a reflection of

an assessment of a ‘plus two days’ additional period of probation.”

      The State asserts that the trial court possessed jurisdiction to hear the

State’s adjudication motion because the motion was filed before the period of

supervision expired. The State argues that

      [t]he second order amend[ing] the conditions of the Appellant’s
      community supervision and extending the period of community
      supervision clearly stated that the period of community supervision
      would terminate on October 6, 2009, and the State filed its motion to
      proceed to adjudicate on October 5, 2009. This specific expiration
      date, which the trial court had authority to order, was unrelated to
      the issue of the “anniversary date” of the period of community
      supervision, and the holding of the Texas Court of Criminal Appeals
      in Nesbit v. State, 227 S.W.3d 64 (Tex. Crim. App. 2007), did not
      apply.

The State asserts that Nesbit addressed the situation where a set time period of

community supervision was stated in an order granting community supervision

and that, here, the trial court’s orders stated specific expiration dates for the

extended periods of community supervision. The State contends that the specific

expiration dates of April 6, 2008, and October 6, 2009, in the trial court’s two

orders controlled over the more general statements that the period of community



                                        9
supervision expired after an additional one year and an additional eighteen

months.7 The State asserts that these specific expiration dates do “not require

calculation and [are] irrelevant to the issue of the ‘anniversary date’ of the period

of community supervision, and the holding in Nesbit does not apply.” The State

further contends that “the only limit on the length of community supervision in this

case was the 10-year limit provided in Article 42.12, Section 5(a), and Article

42.12, Section 22(c) of the Texas Code of Criminal Procedure” and that

“[c]onsequently, the trial court had authority to extend the period of community

supervision for 1 year, 1 year and 2 days, 18 months, and 18 months and 2 days,

as long as the total period of community supervision did not exceed 10 years.”

                                     Analysis

      In Nesbit, Nesbit was placed on “regular” community supervision or

probation for ten years, beginning on April 29, 1994. 227 S.W.3d at 65–66. The

State filed a motion to revoke probation on April 29, 2004. Id. Nesbit filed a

motion to quash the revocation motion, claiming that the trial court did not have

jurisdiction because the motion was filed one day too late. Id. at 66. The trial

court, “admitting that the legal issue was not settled,” denied that motion, revoked

Nesbit’s probation, and sentenced him to ten years in prison.           Id.   Nesbit

appealed, and the court of appeals agreed with his argument and reversed the


      7
       Citing section 311.026 of the government code, the State advises that this
“is analogous to the rule of law that a specific statutory provision controls over a
general one.” See Tex. Gov’t Code Ann. § 311.026 (West 2005).


                                         10
trial court. Id. at 67. The State filed a petition for discretionary review, asking

“[h]ow should the date of the expiration of a period of community supervision be

calculated?” Id. In affirming the court of appeals, the court held,

             The operative rule is that the duration of a time period during
      which a person suffers specified restrictions upon his freedom by
      virtue of either a sentence of imprisonment or community
      supervision includes the first day in which such restrictions upon
      freedom operate and excludes the anniversary date. The same day
      cannot be double counted. This rule is logical, fair, and in accord
      with prior precedent construing the Code Construction Act.

Id. at 69 (footnotes omitted).     The court of criminal appeals noted that it

“necessarily reject[ed] the State’s argument that [Nesbit] [was] required to serve

ten years and a day when he was placed on community supervision for exactly

ten years, no more, no less.” Id. at 69.

      We agree generally with the State’s position and conclude that the holding

in Nesbit does not apply to the scenario presented in this case; that is, Nesbit

addressed a community supervision order that did not specifically state a

termination date, and it held that the period of supervision is calculated by

including the first day in which “restrictions upon freedom operate” and by

excluding the anniversary date. We do not read Nesbit to apply generally to

cases, such as this one, in which the trial court’s order sets out a termination

date for the community supervision period that leaves no need for calculation.

Indeed, in acknowledging that it had “not always been clear on the duration of a

time period for purposes of a term of community supervision or probation,” the

Nesbit court discussed only cases in which a period of supervision was stated


                                           11
but a specific expiration date was not given.8 227 S.W.3d at 68–69. In other

words, we agree with the State that in situations such as this one where “a

specific expiration date is stated, this date controls. This specific expiration date

does not require calculation and is irrelevant to the issue of the ‘anniversary date’

of the period of community supervision, and the holding in Nesbit does not

apply.”

      To the extent it could be argued that the inclusion of both a period of

community supervision and a termination date for the community supervision

period created a conflict in the order, we note our sister court’s analysis in a

similar case. See State v. Crecy, No. 05-11-01003-CR, 2012 WL 2106534, at

*1–3 (Tex. App.—Dallas June 12, 2012, pet. ref’d) (mem. op., not designated for

publication). Crecy was placed on community supervision on March 4, 2005, for

five years. Id. at *1. In June 2009, the trial court amended and extended Crecy’s

term of community supervision “for a period of one year, beginning March 4,

2005 for five years probation and then extended to end March 4, 2011.” Id. The

State filed a motion to revoke Crecy’s community supervision on March 3, 2011,

but the clerk did not issue a capias for his arrest until the next day. The trial court

      8
       Additionally, although the Nesbit court did not specifically address the
issue, Nesbit was sentenced to the maximum term of community supervision of
ten years, meaning the Nesbit court was addressing a circumstance in which
Nesbit’s term of community supervision was being interpreted by the State to be
a period of ten years and one day, a period beyond the statutorily-allowed
maximum. See Tex. Code Crim. Proc. Ann. art. 41.12, §§ 5(a), 22(c); Nesbit,
227 S.W.3d at 70 (Keller, P.J., concurring). Appellant’s term of community
supervision in this case, even after being twice extended, does not implicate the
statutory ten-year limit.

                                          12
revoked Crecy’s community supervision and sentenced him to time in a state jail

facility. Id. In a motion for new trial, Crecy relied on Nesbit, argued that the

anniversary date of his community supervision was March 3, 2011, and

contended that the trial court therefore lacked jurisdiction to revoke his

community supervision because he was no longer on community supervision on

March 4, 2011, when the capias issued. Id. The trial court observed that the

provisions in the order conflicted, concluding that it was unrealistic to think the

court, which was the same judge in each of the orders, would extend the

community supervision one year and one day yet specify in the order that the

period was extended for one year. Id. at *2. Thus, the trial court granted Crecy’s

motion for new trial. Id.

      The State appealed, and the court of appeals held,

             We agree with the trial court that there is a conflict in the
      provisions of the June 4, 2009 order that extended Crecy’s
      community supervision. It is not clear under a plain reading of the
      order whether the trial court intended to extend Crecy’s community
      supervision for one year—through March 3, 2011, as Crecy
      contends—or for one year and one day, through March 4, 2011, as
      the State contends. And a determinative factor in construing a court
      order is the intention of the court. See Harper v. Welchem, Inc., 799
      S.W.2d 492, 495 (Tex. App.—Houston [14th Dist.] 1990, no writ).

             The State is asking that we overrule a trial court’s
      interpretation of its own order—that is, to overrule a court’s
      determination of its own intentions. . . . The trial court stated in its
      June 4, 2009 order that Crecy’s community supervision was
      extended “for a period of one year.” From this, the trial court
      reasonably could determine that it extended Crecy’s community
      supervision for only one year and, under Nesbit, that period ended
      on March 3, 2011.



                                        13
               ....

            Giving great deference to the trial court’s interpretation of its
      own order, we conclude the court did not abuse its discretion in
      granting Crecy a new trial. We affirm the trial court’s order.

Id. at *2–3.

      We note that even if we were to follow the rationale in Crecy, we would

nonetheless affirm the trial court’s judgment. That is, to the extent it could be

argued in the instant case that there is a conflict in the trial court’s July 2008

order, the issue would be whether the trial court intended to extend Appellant’s

community supervision until October 6, 2009, as the State contends, or for a

period of eighteen months—through October 4, 2009 under Nesbit—as Appellant

contends.9     After considering the parties’ arguments on this issue as quoted

above, the trial judge (who was the same judge who also entered each of the

extension orders) denied Appellant’s plea to the jurisdiction, thereby impliedly

finding that it had intended by its prior order that Appellant’s community

supervision period would expire on October 6, 2009. See id. at *2 (deferring to

trial court’s interpretation of its own order). Under this analysis, we would defer

to the trial court’s interpretation of its own prior orders and hold that the State

timely filed its adjudication motion on October 5, 2009, and that the district clerk

timely filed a capias for Appellant’s arrest that same date.


      9
      We express no opinion as to whether October 4, 2009, or an earlier date
would have been the termination date under Nesbit, as this issue is not
determinative to our decision.


                                         14
      Under both our primary analysis and our alternative analysis under Crecy,

we hold that the trial court had jurisdiction to revoke Appellant’s community

supervision. We overrule Appellant’s two issues.

                                 Conclusion

      Having overruled Appellant’s two issues, we affirm the trial court’s

judgment.




                                                   ANNE GARDNER
                                                   JUSTICE

PANEL: LIVINGSTON, C.J.; GARDNER and GABRIEL, JJ.

DO NOT PUBLISH
Tex. R. App. P. 47.2(b)

DELIVERED: March 14, 2013




                                      15
