             In the
        Court of Appeals
Second Appellate District of Texas
         at Fort Worth
     ___________________________

          No. 02-19-00469-CR
     ___________________________

  TIMOTHY ALLEN TURREY, Appellant

                    V.

         THE STATE OF TEXAS


  On Appeal from the 355th District Court
          Hood County, Texas
        Trial Court No. CR13772


  Before Birdwell, Bassel, and Womack, JJ.
  Memorandum Opinion by Justice Bassel
                          MEMORANDUM OPINION

      Appellant Timothy Allen Turrey pleaded guilty to the offense of possession of

a controlled substance and was placed on community supervision, one condition of

which was that he remain in the Substance Abuse Felony Punishment Facility

(SAFPF) and participate in rehabilitation treatment until successfully discharged. See

Tex. Health & Safety Code Ann. § 481.115. In two points, Appellant appeals from

the trial court’s order revoking his community supervision.         In his first point,

Appellant contends that the trial court erred by failing to give him credit in the

present case for time that he had served on a conviction for an offense committed in

a different county in a different criminal episode. In his second point, he contends

that the failure to grant him credit constitutes an unconstitutionally cruel and unusual

punishment. We affirm the judgment of the trial court.

      Appellant was indicted in Hood County for the offense of possession of

methamphetamine in an amount of less than one gram. He pleaded guilty to that

offense, and the trial court sentenced him to a term of twenty-four months in the

State Jail Division of the Texas Department of Criminal Justice. The trial court

suspended the sentence and placed Appellant on community supervision for a period

of five years. A special condition of his community supervision was that he remain in

a SAFPF for a period of not more than one year. Upon successful completion of the

program, Appellant was required to participate in a drug or alcohol abuse continuum

of care treatment plan.

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More than two years after the initial conviction, the State moved to revoke

Appellant’s community supervision for his refusal to participate in the substance-

abuse program. The trial court granted the motion to revoke, which is the subject of

this appeal.

       The record is unclear about what happened in the two-year interim between

Appellant’s Hood County conviction and the revocation. The only detail in the

reporter’s record to explain what occurred is the following testimony by an employee

of the Hood County Community Supervision and Corrections Department:

       Q. Now, when was the Defendant originally placed on probation?

       A. May the 30th of 2017.

       Q. And when was he sent to the SAFPF unit?

       A. September the 9th of 2019.

       Q. Do you know what was happening in that time in between those two
       dates?

       A. Once I received the case, I was informed that he had been
       incarcerated [in prison for an offense committed in another county].

       Q. When he was sent to the SAFPF unit in September of 2019, did he
       participate in the program?

       A. No, ma’am.

               ....

       Q. But, essentially, it’s your understanding that the reason it took more
       than two years to go from his plea hearing [on the possession offense] to
       SAFPF was because of a TDC sentence from another county?


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      A. Yes, sir.

      Though we do not rely on the statements that are not in the record before us,

Appellant’s brief states that after his conviction in Hood County, a bench warrant was

issued by another county for an offense committed in that county. That offense was

not a part of the same criminal episode as the Hood County possession offense.

After serving two and a half years on the other conviction, he was paroled for that

offense and placed in a SAFPF as required by the condition of the Hood County

judgment of conviction. He refused to participate in that program, “claiming that he

had already served the maximum amount of time allowed for the State Jail felony he

had plead[ed] to.”

      Appellant’s first point states that he “wishes to claim abuse of discretion by the

Judge for not granting the two and one-half years spent in TDCJ by conviction from

[the charge in the other county] as back time credit for the Hood County State Jail

charge.”   Appellant’s argument cites one case dealing with a factual situation

completely dissimilar to his. See Drain v. State, 540 S.W.3d 637 (Tex. App.—Amarillo

2018, no pet.). Drain involved a conviction for two offenses arising out of the same

criminal episode. Id. at 639. The appellant in Drain argued that the trial court had

improperly given him a “split sentence” by imposing a sentence of incarceration for

one offense and a sentence of community supervision for another—the effect of

which he argued was to impose consecutive sentences in a situation where only a



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concurrent sentence was permitted. See id. The Amarillo Court of Appeals viewed

such a split sentence as creating a possibility that

       if revocation resulted in the imposition of an eight-year sentence for
       count one and appellant had already served nine of the ten years assessed
       under count two, the eight years would be subsumed into and by the
       nine. The eight would not be added to the nine thereby resulting in an
       overall prison term of seventeen years.

Id. at 642. Thus, Drain held that the possibility of such a result violated the mandate

of Section 3.03(a) of the Penal Code because sentences imposed for more than one

offense arising out of the same criminal episode “shall run concurrently.” Tex. Penal

Code Ann. § 3.03(a). The sentence imposed in Drain was in error because “the

legislative edict explicit in § 3.03(a) of the Penal Code cannot be discarded through

the mere trick of suspending one of the multiple sentences assessed when those

sentences are to run concurrently.” 540 S.W.3d at 642.

       Without guidance from Appellant, we are at a loss to understand how the

holding of Drain translates into error in this case. The statutory provision violated by

the sentence in Drain has no application to this appeal because Section 3.03(a) does

not apply. By his own admission, Appellant was not convicted of nor was he being

sentenced for two offenses arising out of the same criminal episode.

       The remainder of Appellant’s argument under his first point consists of the

following paragraph:

       In the present case, since the face of the original judgment states “This
       Sentence Shall run CONCURRENTLY[.”] Appellant believes that
       waiting until he paroled out of prison on another charge to file the

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      Motion to Revoke Probation is unfair and unconstitutional. The
      maximum amount of time Appellant could be sentenced in the present
      charge is twenty-four months. Appellant spent two and one-half years in
      TDCJ and completed a drug rehab course before being paroled out of
      prison. Appellant believes that to have to serve two more years on a
      charge that was pending the whole time he was in prison is a gross
      injustice.

This paragraph is ineffectual as an appellate argument for the following reasons:

•     There is no record to support the statements in the paragraph that Appellant

      spent two and a half years in TDCJ, that he was paroled on a prior charge, or

      that he received a drug rehab course while incarcerated. See Jack v. State, 149

      S.W.3d 119, 121, n.1 (Tex. Crim. App. 2004) (“We note that an appellate court

      may not consider factual assertions that are outside the record.”).

•     The paragraph lacks any record references or, more critically, any authority to

      support its argument. We are reluctant to conclude a briefing waiver has

      occurred in a criminal case, but the practical effect of the paragraph is to place

      the burden on us to formulate Appellant’s argument for him, research the law

      based on our supposition of what the argument is, and then argue with

      ourselves how to resolve our guesses on what Appellant’s theory is and what

      authority is relevant to its disposition. A party represented by counsel cannot

      expect that an appellate court will undertake such an unguided wild goose

      chase. See Thomas v. State, 312 S.W.3d 732, 738 (Tex. App.—Houston [1st

      Dist.] 2009, pet. ref’d) (“Appellant has cited no specific facts in support of his



                                           6
      authority and no authority for his argument and therefore has failed to

      adequately brief this point.” (citing Tex. R. App. P. 38.1(i))).

      Appellant’s second point claims that the “denial of time credits constitutes

Cruel and Unusual Punishment.”          This freestanding point is supported by no

arguments and authorities. It is therefore forfeited. See Tex. R. App. P. 38.1(i).

Further, the argument is not preserved because no objection based on cruel-and-

unusual punishment was made to the trial court. See Drain, 540 S.W.3d at 640–41

(holding that because argument based on a claim that a sentence was cruel and

unusual was not made to the trial court, the argument was not preserved for appellate

review).

      Accordingly, we overrule Appellant’s two points and affirm the trial court’s

judgment.

                                                              /s/ Dabney Bassel

                                                              Dabney Bassel
                                                              Justice

Do Not Publish
Tex. R. App. P. 47.2(b)

Delivered: April 23, 2020




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