                    In The
              Court of Appeals
Sixth Appellate District of Texas at Texarkana

         ______________________________

               No. 06-07-00152-CR
         ______________________________


     HEATHER CHERIE DUNAWAY, Appellant

                           V.

          THE STATE OF TEXAS, Appellee



    On Appeal from the 124th Judicial District Court
                 Gregg County, Texas
               Trial Court No. 34619-B




      Before Morriss, C.J., Carter and Moseley, JJ.
        Memorandum Opinion by Justice Carter
                                   MEMORANDUM OPINION

       Heather Cherie Dunaway appeals the trial court's decision to revoke her community

supervision for the crime of possessing more than one gram but less than four grams of

methamphetamine. See TEX . HEALTH & SAFETY CODE ANN . § 481.102(6) (Vernon Supp. 2007)

(defining methamphetamine as penalty group 1 substance), § 481.112(c) (Vernon 2003)

(criminalizing possession of penalty group 1 substances). Dunaway pleaded "true" to violating the

conditions of her community supervision as alleged in the State's amended motion to revoke.

Dunaway now raises two issues. We overrule both issues and affirm the trial court's judgment.

I.     Factual and Procedural Background

       On April 16, 2007, Dunaway pled guilty to possessing more than one gram but less than four

grams of methamphetamine and reserved her right to have a jury assess her punishment. The

following day, a jury was selected, considered her testimony, and ultimately assessed her punishment

at ten years' imprisonment and a fine of $5,000.00. The jury further found that Dunaway has never

been convicted of a felony and recommended the prison sentence be probated.1 The trial court, in

reading the jury's verdict, also noted that the jury had included additional recommendations with its

punishment verdict. Those recommendations included that Dunaway "[a]ttend AA and/or NA twice

a week with accountability," maintain "[v]erifiable employment," "[a]ttend parenting class[es,]" be

tested for illegal drug use on a monthly basis, and have monthly face-to-face meetings with a



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           The jury did not recommend that the fine portion of Dunaway's sentence be probated.

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community supervision officer. The trial court then recessed the case to allow Dunaway to meet

with a community supervision officer so that a presentencing report could be prepared for the trial

court's consideration.

       The next morning, on April 18, the trial court heard recommendations from both the Gregg

County District Attorney and from Dunaway's trial counsel regarding additional conditions of

community supervision. In addition to the jury's recommended conditions, the trial court further

ordered that Dunaway complete four hours of community service each month, that she spend fifteen

consecutive weekends in the Gregg County Jail, and that she not consume any alcohol during the

period of community supervision. The trial court also imposed other "standard" conditions of

community supervision that were typically ordered by the 124th Judicial District Court. See TEX .

CODE CRIM . PROC. ANN . art. 42.12 (Vernon Supp. 2007) (outlining community supervision available

conditions).

       The State subsequently filed both an application and an amended application to revoke

Dunaway's community supervision. The trial court conducted a hearing on the amended application

on August 16, 2007, at which Dunaway pled "true" to having violated her conditions of community

supervision as alleged in the State's amended revocation motion. The trial court subsequently found

the State's allegations to be "true," revoked Dunaway's community supervision, and imposed the

original ten-year prison sentence and $5,000.00 fine.




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II.    Was the Trial Court Authorized to Impose Additional Conditions of Community
       Supervision?

       In her first point of error, Dunaway contends the trial court's authority under Article 42.12,

Section 12 of the Texas Code of Criminal Procedure to set the conditions of community supervision

must be held to be subordinate to the jury's authority under Article 42.12, Section 4 of the Texas

Code of Criminal Procedure to set the conditions of community supervision; based on such

subordination, contends Dunaway, the trial court was without authority (and therefore erred) when

it imposed an additional condition of community supervision on Dunaway that had not been

recommended by the jury. The thrust of Dunaway's contention is that, because the jury did not

include the requirement that Dunaway serve weekends in jail as a part of the jury's list of

recommended supervision conditions, the trial court was without authority to impose such an

additional condition.

       Section 10 of Article 42.12 outlines a trial court's authority to impose, modify, or revoke

community supervision. That provision's first sentence states, "Only the court in which the

defendant was tried may grant community supervision, impose conditions, revoke the community

supervision, or discharge the defendant, unless the judge has transferred jurisdiction of the case to

another court with the latter's consent." TEX . CODE CRIM . PROC. ANN . art. 42.12, § 10(a) (emphasis

added). Another provision within Article 42.12 provides,

       The judge of the court having jurisdiction of the case shall determine the conditions
       of community supervision and may, at any time, during the period of community
       supervision alter or modify the conditions. The judge may impose any reasonable


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        condition that is designed to protect or restore the community, protect or restore the
        victim, or punish, rehabilitate, or reform the defendant.

TEX . CODE CRIM . PROC. ANN . art. 42.12, § 11(a) (emphasis added).

        The clear language in multiple provisions of Article 42.12 grants exclusive authority to set

the conditions of community supervision to the presiding jurist of the trial court in which the

defendant was tried. The jury's recommended conditions of community supervision were, therefore,

just that: mere recommendations. The authority to set community supervision conditions is not, nor

has it ever been, vested with a jury. Accordingly, because our law makes clear that such power lies

with the trial court rather than the jury, we conclude the trial court did not err by revoking Dunaway's

probated sentence based on a condition of community supervision that had not been recommended

by her punishment jury but which had nonetheless been imposed by the duly authorized trial court.

See TEX . CODE CRIM . PROC. ANN . art. 42.12, § 12(c); cf. Johnson v. State, 240 S.W.3d 76, 78–79

(Tex. App.—Austin 2007, pet. granted) ("Jail time as a condition of community supervision is

authorized by statute and is within the trial court's discretionary authority to impose or not.").

        We overrule Dunaway's first point of error.

III.    Did Insufficient Evidence Support the Trial Court's Revocation Decision?

        In her second point of error, Dunaway contends evidence is insufficient to support the trial

court's decision to revoke her community supervision. More specifically, she argues that, because

she only pled true to violating community supervision conditions that had not been recommended

by the jury, because those additional conditions (added and imposed by the trial court) were "void,"


                                                   5
and because she cannot be lawfully held to have violated a "void" condition of community

supervision, then her plea of "true" fails to satisfy the requirement that she violated any properly

imposed condition of community supervision that originated with the jury rather than the trial court.

       As stated above, our law grants exclusive authority to set the terms and conditions of

community supervision with the trial court—not the jury. TEX . CODE CRIM . PROC. ANN . art. 42.12,

§§ 10–12. Accordingly, because such authority resides in the trial court, the trial court could

lawfully impose conditions beyond those recommended by the jury.2 The additional terms placed

on Dunaway by the trial court, which were beyond those terms recommended by the jury, were

therefore not void. They could thus form the proper basis for revocation on Dunaway's plea of "true"

to having violated those terms. See Moses v. State, 590 S.W.2d 469, 470 (Tex. Crim. App. [Panel

Op.] 1979); Atchison v. State, 124 S.W.3d 755, 758 n.4 (Tex. App.—Austin 2003, pet. ref'd); Jones

v. State, 112 S.W.3d 266, 269 (Tex. App.—Corpus Christi 2003, no pet.). Dunaway's contention

to the contrary is without merit.




       2
         We do not believe Article 42.12 would have prohibited the trial court from ignoring any of
the jury's recommendations regarding community supervision conditions, should the trial court have
chosen to do so—especially in light of the trial court's legislatively imposed duty to insure that all
community supervision terms are designed to "protect or restore the community, protect or restore
the victim, or punish, rehabilitate, or reform the defendant." TEX . CODE CRIM . PROC. ANN . art.
42.12, § 11(a).

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IV.   Conclusion

      For the reasons stated, we overrule Dunaway's appellate issues and affirm the trial court's

judgment.




                                           Jack Carter
                                           Justice

Date Submitted:      July 14, 2008
Date Decided:        July 15, 2008

Do Not Publish




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