            IN THE COURT OF CRIMINAL APPEALS
                        OF TEXAS
                            NOS. PD-0034-10 & PD-0035-10

                                THE STATE OF TEXAS

                                              v.

                              CODY JOE POSEY, Appellee

         ON APPELLEE’S PETITIONS FOR DISCRETIONARY REVIEW
                 FROM THE SIXTH COURT OF APPEALS
                           LAMAR COUNTY

      K EASLER, J., filed a concurring opinion in which H ERVEY and C OCHRAN, JJ.,
joined.

                               CONCURRING OPINION

       For different reasons than those of the majority, I would hold that a defendant must

be eligible for regular community supervision under Article 42.12, Section 3 to be eligible

for shock community supervision under Article 42.12, Section 6. Because an affirmative

deadly weapon finding renders a defendant ineligible for judge-ordered community

supervision under Article 42.12, Section3g, a defendant is therefore also ineligible for shock

community supervision. I therefore join the majority in affirming the court of appeals’s
                                                     POSEY CONCURRING OPINION —2

judgment.

       We give effect to the plain meaning of a statute’s text.1 “Where the statute is clear

and unambiguous, the Legislature must be understood to mean what is has expressed, and

it is not for the courts to add or subtract from such a statute.” 2 There is a key exception to

the plain meaning rule—when the application of the plain language would lead to absurd

results, that language should not be applied literally.3

       Article 42.12, Texas Code of Criminal Procedure, governs all aspects of community

supervision.4 Section 2 defines community supervision as “the placement of a defendant by

a court under a continuum of programs and sanctions, with conditions imposed by a court for

a specific period . . . .” 5 The imposition of community supervision suspends the execution

of a sentence and is not a sentence itself.6

       Section 3 addresses judge-ordered community supervision.7 It allows a judge to

suspend the imposition of a sentence after a conviction, guilty plea, or no contest plea.8


       1
           Boykin v. State, 818 S.W.2d 782, 785 (Tex. Crim. App. 1991).
       2
           Id.
       3
           Id.
       4
           T EX. C ODE C RIM. P ROC. A NN. § 42.12 (Vernon 2003).
       5
           Id.
       6
           Speth v. State, 6 S.W.3d 530, 532 (Tex. Crim. App. 1999).
       7
           T EX. C ODE C RIM. P ROC. A NN. § 42.12 § 3.
       8
           T EX. C ODE C RIM. P ROC. A NN. § 42.12 § 3(a).
                                                     POSEY CONCURRING OPINION —3

Within Section 3, subsection 3g provides limitations on judge-ordered supervision.9

Subsection 3g states that the provisions of Section 3 permitting judge-ordered community

supervision do not apply:

       (1) to a defendant adjudged guilty under [certain enumerated offenses].

       (2) to a defendant when it is shown that a deadly weapon . . . was used or
       exhibited during the commission of a felony offense or during immediate flight
       therefrom, and that the defendant used or exhibited the deadly weapon or was
       a party to the offense and knew that a deadly weapon would be used or
       exhibited. On an affirmative finding under this subdivision, the trial court
       shall enter the finding in the judgment of the court . . . .10

       Section 4 addresses jury-recommended community supervision.11 It authorizes a jury

to recommend that the judge suspend the imposition of a sentence of confinement and place

the defendant on community supervision.12          The judge must then follow the jury’s

recommendation.13 Subsection 4(d) lists factors that render a defendant ineligible for jury-

recommended community supervision, but does not include a deadly-weapon limitation

under Section 3g.14 Section 4(e) requires a defendant, before trial, to file “a written sworn

motion with the judge that the defendant has not previously been convicted of a felony” to


       9
           T EX. C ODE C RIM. P ROC. A NN. § 42.12 § 3g.
       10
            Id.
       11
           T EX. C ODE C RIM. P ROC. A NN. § 42.12 § 4.
       12
           T EX. C ODE C RIM. P ROC. A NN. § 42.12 § 4(a).
       13
           T EX. C ODE C RIM. P ROC. A NN. § 42.12 § 4(d).
       14
            Id.
                                                     POSEY CONCURRING OPINION —4

be eligible for jury-recommended community supervision.15

       Finally, Section 6 is entitled “Continuing Court Jurisdiction in Felony Cases,” which

governs shock community supervision.16 Section 6 authorizes a judge to suspend further

execution of a sentence of confinement once it has begun and place a defendant on

community supervision.17 The judge may grant shock community supervision only if: (1)

the defendant is otherwise eligible for community supervision under this article [42.12]; and

(2) the defendant had never before been incarcerated in a penitentiary serving a sentence for

a felony.18 The judge may grant shock community supervision on his own motion, on the

motion of the State’s attorney, or on the written motion of the defendant.19 The judge may

order shock community supervision only within 180 days from the day the execution of the

sentence of confinement begins.20

       A Texas defendant has the right to have a jury assess punishment.21 A jury found

Cody Joe Posey guilty of criminally negligent homicide in two causes, both stemming from

a fatal traffic accident. The jury further found that Posey used his vehicle as a deadly weapon

       15
        T EX. C ODE C RIM. P ROC. A NN. § 42.12 § 4(e).
       16
            T EX. C ODE C RIM. P ROC. A NN. § 42.12 § 6.
       17
        T EX. C ODE C RIM. P ROC. A NN. § 42.12 § 6(a).
       18
        T EX. C ODE C RIM. P ROC. A NN. § 42.12 § 6(a)(1)-(2).
       19
        T EX. C ODE C RIM. P ROC. A NN. § 42.12 § 6(b).
       20
        T EX. C ODE C RIM. P ROC. A NN. § 42.12 § 6(a).
       21
            Ivey v. State, 277 S.W.3d 43, 47 (Tex. Crim. App. 2009).
                                                    POSEY CONCURRING OPINION —5

during the accident. Posey elected to have the jury assess punishment, and the jury sentenced

him to two years in prison, but recommended community supervision, which the judge

imposed. The State later moved to revoke Posey’s supervision and, after a hearing, the trial

judge concluded that Posey had in fact violated the terms of his supervision. The judge then

sentenced Posey to two years’ confinement but noted that shock community supervision

could be appropriate later. Posey timely filed a motion for shock community supervision in

both causes, which the trial judge granted after a hearing. The judge signed two separate

orders, each granting shock community supervision.

       According to a plain reading of the statutes at issue, Section 6(a)(1)’s requirement that

a defendant “is otherwise eligible under this article” refers to Section 3, governing judge-

ordered community supervision. Section 6 specifically refers to the trial “judge” and to the

“suspension of further execution of the sentence.” The Legislature has specifically excluded

the jury from granting or recommending shock community supervision. Section 6 comes into

play only after a defendant has begun to serve a sentence, even if it was originally assessed

by a jury. It gives the judge some discretion—within 180 days of from the execution of the

sentence—to determine whether shock community supervision is appropriate rather than the

continuation of the executed sentence. When a defendant like Posey elected to have the jury

assess punishment, the jury fulfilled its duty when it assessed punishment. Additionally, the

use of the present tense “is” in Section 6 is of significance. The word “is” indicates that

shock community supervision eligibility is determined at the time that Section 6 can be
                                                     POSEY CONCURRING OPINION —6

invoked.22   Thus, the timing limitations in Section 6 establish that shock community

supervision eligibility is determined under Section 3. The phrase “is otherwise eligible under

[42.12]” in Section 6(a)(1), therefore, does not refer to the eligibility requirements for jury-

recommended community supervision in Section 4.

       Any argument that Section 6(a)(1) refers to Article 42.12 in its entirety is undermined

by its inclusion of Section 5, which governs deferred adjudication community supervision.

Section 6 cannot legitimately be read to include Section 5. Unlike Section 3 community

supervision, no guilt has been assessed, nor sentence imposed, under Section 5 deferred

adjudication community supervision. Section 6(a)’s shock community supervision expressly

contemplates the suspension of an executed sentence.23 Common sense therefore dictates

that the phrase “eligibility for community supervision” in Section 6(a)(1) does not refer to

being otherwise eligible for supervision under Section 5.

       Additionally, Professors Dix and Dawson recognize that a redundancy with respect

to the similar limitations outlined in Sections 6(a)(2) and Section 4(e) militate against reading

Section 6(a)(1) to include jury-recommended community supervision:

       22
          See T EX. G OV’T C ODE A NN. § 311.012(a) (“Words in the present tense include
the future tense.”); cf. Ex parte Noyola, 215 S.W.3d 862, 867 (Tex. Crim. App. 2007)
(“By incorporating Section 508.149(a) by reference, Section 508.283(c) invokes the
version of Section 508.149(a) in effect when the inmate’s parole or mandatory
supervision is revoked.”).
       23
          See 43A George E. Dix & Robert O. Dawson, Texas Practice: Criminal
Practice and Procedure § 39.63 (2d ed. 2001) (observing that “the point in the process
when shock community supervision becomes possible, the opportunity for deferred
adjudication has long passed.”).
                                                   POSEY CONCURRING OPINION —7

      The legislature undoubtedly did not intend to include jury eligibility, because
      it added the independent requirement of eligibility that the defendant has never
      before been incarcerated in a penitentiary serving a sentence for a felony. That
      requirement would be redundant because a jury could never give community
      supervision to a defendant who had previously served a prison sentence.24

      Finally, holding that the initial selection between a bench or jury trial should

determine a defendant’s subsequent eligibility for shock community supervision would

discourage plea bargaining and, consequently, pleas of guilty and no contest. Defendants

who could be or are ineligible for community supervision under Section 3 may select a jury

trial for the sole purpose of remaining eligible for shock community supervision.




DATE FILED: January 12, 2011
PUBLISH




      24
           See id.
