                                                                    ACCEPTED
                                                                01-14-01020-CR
                                                     FIRST COURT OF APPEALS
                                                             HOUSTON, TEXAS
                                                           7/29/2015 8:31:20 AM
          No. 01-14-01020-CR                              CHRISTOPHER PRINE
                                                                         CLERK


                  In the
            Court of Appeals
                 For the                       FILED IN
                                        1st COURT OF APPEALS
         First District of Texas            HOUSTON, TEXAS
               At Houston               7/29/2015 8:31:20 AM
                                        CHRISTOPHER A. PRINE
                                                Clerk
         

               No. 991804
           In the 185th District
         Of Harris County, Texas

         

        SIMMIE JAMES COLSON III
                Appellant
                   V.
          THE STATE OF TEXAS
                Appellee

         
        STATE’S APPELLATE BRIEF
         

                       DEVON ANDERSON
                       District Attorney
                       Harris County, Texas

                       SARAH BRUCHMILLER
                       Assistant District Attorney
                       Harris County, Texas

                       KIMBERLY APERAUCH STELTER
                       Harris County Criminal Justice Center
                       1201 Franklin, Suite 600
                       Houston, Texas 77002
                       Telephone: 713.755.5826
                       stelter_kimberly@dao.hctx.net
                       State Bar Number: 19141400

ORAL ARGUMENT REQUESTED NOT REQUESTED
                  STATEMENT REGARDING ORAL ARGUMENT
       State believes that the matters raised by the appellant are well-settled,
that the briefs in this case adequately apprise this Court of the issues and the
law. Therefore, the State does not request oral argument.

                       IDENTIFICATION OF THE PARTIES

      Pursuant to Texas Rule of Appellate Procedure 38.2(a)(1)(A), a

complete list of the names of all interested parties is provided below.

      Counsel for the State:

            Devon Anderson  District Attorney of Harris County

            Kimberly Aperauch Stelter  Assistant District Attorney on

                     appeal

            Sarah Bruchmiller  Assistant District Attorney at trial



      Appellant or criminal defendant:

            Simmie James Colson, III—Defendant

      Counsel for Appellant:

            Morris Overstreet, Winston Cochran, Jr.  Counsel on appeal

            Morris Overstreet  defense counsel at trial

      Trial Judge:

            Honorable Susan Brown Judge Presiding




                                         i
                                                    TABLE OF CONTENTS

STATEMENT REGARDING ORAL ARGUMENT ................................................................... i

IDENTIFICATION OF THE PARTIES ........................................................................................ i

TABLE OF CONTENTS ................................................................................................................. ii

INDEX OF AUTHORITIES .......................................................................................................... iii

STATEMENT OF THE CASE....................................................................................................... 1

STATEMENT OF FACTS .............................................................................................................. 1

SUMMARY OF THE ARGUMENT ............................................................................................. 2

REPLY TO APPELLANT’S SOLE ISSUE PRESENTED....................................................... 3

           Appellant has failed to establish that the trial court
           misunderstood the range of punishment in this case. While
           the trial court judge had a range of sentencing options
           available, she correctly realized that she could not continue
           appellant on community supervision without an adjudication
           of guilt.


PRAYER ...........................................................................................................................................15

CERTIFICATE OF SERVICE ......................................................................................................16

CERTIFICATE OF COMPLIANCE ...........................................................................................17




                                                                        ii
                                          INDEX OF AUTHORITIES
CASES

Arrieta v. State,
  719 S.W.2d 393 (Tex. App.—
  Fort Worth 1986, pet. ref’d) .................................................................................... 9, 10
Cordova v. State,
  2011 WL 3925765, at *3 (Tex. App. –
  Amarillo 2011, pet. ref’d) (opin. not designated for publication) ........................... 12
Ex parte Donaldson,
  86 S.W.3d 231 (Tex. Crim. App. 2002) ....................................................................... 13
Ex parte Lewis,
  934 S.W.2d 801 (Tex. App. –
  Houston [1 Dist.]1996, no pet.)..................................................................................... 9
Ex parte Moss, 446 S.W.3d 786, 788–90 (Tex. Crim. App. 2014) ................................. 12
Garcia v. State,
  387 S .W.3d 20, 23-24 (Tex. Crim. App. 2012) .......................................................... 11
Garrett v. State,
  377 S.W. 3d 697 (Tex. Crim. App. 2012). ..................................................................... 9
Howell v. State,
  754 S.W.2d 396 (Tex. App.—
  Corpus Christi 1988, no pet.) ........................................................................................ 9
Hunter v. State,
  640 S.W.2d at 656 (Tex. App.—
  El Paso 1982, no pet.) .................................................................................................. 10
Nicklas v. State,
  530 S.W.2d 537 (Tex. Crim. App. 1975) ..................................................................... 10
Slaughter v. State,
  110 S.W.3d 500 (Tex. App. –
  Waco 2003, pet. ref’d).................................................................................................. 11
Whitson v. State,
 429 S.W.3d 632 (Tex. Crim. App. 2014) ..................................................................... 13

STATUTES

TEX. CODE CRIM. PROC. art. 42.12 § 22(c) ............................................................................ 9


                                                             iii
TEX. CODE CRIM. PROC. art. 42.12 § 5(a) .............................................................................. 9
TEX. CODE CRIM. PROC. art. 42.12, § 5(h) ........................................................................... 12
TEX. PENAL CODE § 12.35 ................................................................................................... 13



RULES

TEX. R. APP. P. 38.2(a)(1)(A) ................................................................................................ i




                                                              iv
TO THE HONORABLE COURT OF APPEALS:


                                STATEMENT OF THE CASE

       The appellant was charged by indictment with theft by check (CR-5).1

He pled guilty and pursuant to a plea bargain agreement, adjudication of his

guilt was deferred and he was placed on community supervision for a period

of two years (CR-12). The State subsequently filed a motion to adjudicate

guilt (CR-31-32). Appellant stipulated true to the allegations in the motion to

adjudicate guilt (CR-41). The court found the allegations to be true, found

appellant guilty of theft by check and assessed punishment at seven months in

the State Jail division of the Texas Department of Criminal Justice (CR-41).

                           



                                  STATEMENT OF FACTS

        The record does not contain any details as to how appellant committed

the offense of theft by check. The only record is the hearing on the State’s

motion to adjudicate guilt. While seven witnesses testified at this hearing,

their testimony is not relevant to disposition of this case. Instead, appellant



1
  “CR” refers to the clerk’s record and the number following the dash is the page number. “RR”
refers to the sole volume of the court reporter’s record, and the number following the dash is the
page within that volume.
bases his point of error on comments made by defense counsel and the court

during the hearing. These comments are best discussed in the response to

appellant’s sole point of error.

                         




                         SUMMARY OF THE ARGUMENT

      Appellant’s contention that the trial court judge did not understand the

sentencing alternatives available to her is not supported by the record. The

judge correctly understood that she could not defer an adjudication of guilt

and extend appellant’s community supervision, as that term of community

supervision had already expired. The trial court only had jurisdiction to rule

on the State’s motion to adjudicate guilt and sentence appellant subsequent

to a finding of guilt.

                         




                                      2
              REPLY TO APPELLANT’S SOLE ISSUE PRESENTED

      Appellant has failed to establish that the trial court
      misunderstood the range of punishment in this case. While
      the trial court judge had a range of sentencing options
      available, she correctly realized that she could not continue
      appellant on community supervision without an adjudication
      of guilt.

      Appellant claims that the trial court did not consider all the alternative

dispositions of appellant’s case. Specifically, it is appellant’s contention that

the trial court judge “did not believe that she had any discretion to take any

action other than sentencing [appellant] to at least 180 days of confinement in

a state jail.” (appellant’s brief, p. 17). Appellant asserts that the trial court had

other options for sentencing appellant, and lists several in his brief.

      The State agrees that the trial court had options for sentencing

appellant, although appellant is incorrect as to what those options were.

Instead, it appears that the trial court judge understood the law in this area,

and merely indicated that she did not have discretion to do what appellate

counsel suggests she could have done – continue appellant on community

supervision without an adjudication of guilt.




                                         3
      A. The pre-hearing procedural history of this case.

      The timeline in this case is important in understanding this limitation

on the trial court’s sentencing choices. Appellant was charged with and pled

guilty to the offense of theft by check on October 5, 2004 (RR-11). The court,

pursuant to a plea bargain agreement, deferred adjudication of guilt and

sentenced appellant to two years of community supervision, subject to several

conditions and terms (CR-12-14).

      On June 20, 2006, within the two year period of community supervision,

the State filed a motion to adjudicate guilt, alleging that appellant had violated

several terms and conditions of his community supervision, including failure

to report to his Community Supervision Officer, failure to present written

verification of employment, failure to participate in a community service

program, and failure to pay fees, fines, and restitution (CR-31-32). A capias

was issued at the same time (CR-33). Appellant was arrested on that capias on

October 21, 2014 (CR-33).

      B. Appellant’s hearing on the State’s motion to adjudicate guilt

       The trial court held a hearing on the State’s motion to adjudicate guilt

on December 11, 2014 (CR-38). Appellant stipulated that he had previously

pleaded guilty to the offense, that the allegations in the motion to adjudicate

were true, and that the prosecutor would recommend that he be adjudicated

                                        4
guilty (CR-38). He also stipulated that there was no agreed recommendation

for punishment, and that he reserved the right to appeal (CR-38).

      Defense counsel put on seven witnesses at the motion to adjudicate

hearing, including appellant (RR-3). Some of these witnesses testified to

appellant’s difficulties at the time of his original plea in an attempt to explain

why he did not complete the terms of his community supervision (CR-21, 33).

Others testified to the good appellant had done in the community since, and

how his having to serve time in jail would adversely affect those in his family

(CR-14, 23).

      Defense counsel asked several of these witnesses why they thought the

court should not adjudicate appellant guilty. For example, defense counsel

asked appellant’s daughter “why you would ask the judge not to adjudicate

your father and send him to jail for 180 days?” (RR-8). Appellant’s daughter

then gave an emotional plea asking that appellant not be adjudicated guilty

because of the personal impact it would have on her family (RR-8).

      Defense counsel also asked the second witness, Ms. Jones, to tell the

court why she should “do something other” than adjudicate appellant guilty

(RR-14). It is here that the judge interjected that she did not have “discretion

in the matter, based on the situation and the law.” (RR-14). The context of that

statement is provided here:

                                        5
      Q. (BY MR. OVERSTREET) (defense counsel): I explained to
      you what Mr. Colson is facing if the judge adjudicates him
      guilty, a minimum of 180 days. What would you say to the
      judge as to why she should exercise her discretion and do
      something other than adjudicate him guilty and sentence
      him to –

      THE COURT: Please don’t have these folks think that I have
      any discretion at all in this matter.

      MR. OVERSTREET: Okay.

      THE COURT: So, I don’t want them to leave here today
      believing the court has some discretion in the matter, based
      on the situation and the law.

      MR. OVERSTREET: Okay.
      Q. (BY MR. OVERSTREET): Okay. Why would you ask the
      Court not to send him to jail for 180 days?
      ….
      (RR-14).

      Finally, defense counsel called appellant himself as a witness, and

asked him twice about why the judge should be lenient with him:

      Q. Okay, Why shouldn’t the judge just adjudicate you guilty
      and just send you to jail for two years?

                                ……………

       Q: And last question: Why shouldn’t the judge just send you
      to jail?

(RR-48, 51). Appellant’s responses were that he had turned his life around

and was helping people, including his elderly mother and “this kid that I’m

paying child support for.” (RR-48, 51).

                                          6
         At the conclusion of the hearing, the trial court asked for closing

argument (RR-58). Defense counsel maintained that all the witnesses who had

come forward to testify on appellant’s behalf “provide a reason why the Court

can do something other than adjudicate him guilty. And because if he’s

adjudicated guilty, of course, the minimum, 180 days, kicks in.” (RR-58).

Defense counsel then noted that he had done some research during the lunch

hour and had discovered Garrett v. State             2   which held that trial courts could

extend deferred adjudication community supervision to a maximum of 10

years, the same as other felony offenses (RR-59).

         The judge responded that she was well aware of Garrett, but that

Garrett did not apply when a defendant’s period of probation had already

terminated. (RR-59) Defense counsel then reiterated that he was asking the

trial court to exercise her discretion and “not make a decision today to

adjudicate Mr. Colson guilty, [and] maybe give us a little bit more time to

research to see if the probation can be extended” (RR-61).

         Next the court heard argument from the State, which urged the court to

sentence appellant “somewhere in the range of 1 year to 18 months.” (RR-62).

At the conclusion of argument the court found the allegations in the motion to




2   Garrett v. State, 377 S.W. 3d 697 (Tex. Crim. App. 2012).
                                                7
adjudicate to be true, found appellant guilty, and assessed his punishment at

seven months in the State Jail division of the Texas Department of Criminal

Justice (CR-41, RR-63).

       C. The trial court was correct in stating that it did not have
      discretion to extend community supervision without an
      adjudication of guilt.

      Appellant claims the trial court judge was under an erroneous legal

assumption as to available sentencing alternatives, and thought she did not

have any other option but to sentence appellant to at least 180 days

confinement in the state jail (Appellant’s brief, p. 17). The court, however,

never said that 180 days was the minimum sentence it could give or that it did

not have other options. Instead, the court indicated that it did not have the

discretion to defer adjudication and extend appellant’s term of deferred

adjudication community supervision, as suggested by defense counsel during

the hearing, because the original term of community supervision had already

expired (RR-59). This is a correct statement of the law.

      Appellant was originally placed on community supervision pursuant to

article 42.12, section 5 of the Texas Code of Criminal Procedure, which allows

a court to defer a finding of guilt and place a defendant on community

supervision. TEX. CODE CRIM. PROC. art. 42.12 § 5(a). When the original term of

community supervision is less than 10 years, it may be extended as often as

                                       8
the judge determines is necessary, up to a period of 10 years. TEX. CODE CRIM.

PROC. art. 42.12 § 22(c),3 Garrett v. State, 377 S.W. 3d 697 (Tex. Crim. App.

2012)

        There are limits, however, on when this extension may occur. Article

42.12, § 22 (c) allows the court to extend a period of community supervision:

      at any time during the period of supervision or, if a motion for
      revocation of community supervision is filed before the period of
      supervision ends, before the first anniversary of the date on which
      the period of supervision expires.

TEX. CODE CRIM. PROC. art. 42.12 § 22(c). The courts have repeatedly found

invalid attempts to extend or modify community supervision after this period

has expired. See Ex parte Lewis, 934 S.W.2d 801, 802-03 (Tex. App. –Houston

[1 Dist.]1996, no pet.) (“The trial court must exercise its power to alter or

modify the terms or conditions of probation during the initial probation

period or any additional probation time added during the initial period.”);

Arrieta v. State, 719 S.W.2d 393, 395 (Tex. App.—Fort Worth 1986, pet. ref’d)

(“[art. 42.12] does not grant the trial court the power to amend or modify

probation once the probation period has expired.” ); Howell v. State, 754

S.W.2d 396, 397 (Tex. App.—Corpus Christi 1988, no pet.) (“The State’s first



3
  Tex. Code Crim. Proc. art. 42.12 § 5(a) provides that the extension of deferred
adjudication community supervision is regulated by art. 42.12 § 22.
                                       9
timely-filed Motion for Adjudication of Guilt could not function as a means of

expanding the court’s jurisdiction to alter or extend appellant’s probation

after the original probationary term had expired”) 4

       Appellant ignores the plan language of art. 42.12 § 22(c) and

accompanying case law, and argues that the filing of a motion to adjudicate

guilt tolls the running of the community supervision period. Thus, appellant

contends, the trial court had the option to “simply do nothing and continue

[appellant] on deferred adjudication supervision.” (appellant’s brief, p. 21).

The Court of Criminal Appeals long ago rejected this very argument. See

Nicklas v. State, 530 S.W.2d 537 (Tex. Crim. App. 1975) (finding probationary

period not tolled by filing of motion to revoke); See also, Hunter v. State, 640

S.W.2d at 656, 659 (Tex. App.—El Paso 1982, no pet.) (“A motion to revoke

and capias do not toll the running of the probationary period.”); Arrieta v.

State, 719 S.W.2d at 395 (same). In short, defense counsel’s suggestions to

continue community supervision without an adjudication of guilt or delay the

hearing to give appellant time to see if “he’s complied and done good things”




4Ex. Parte Lewis, Arrieta, and Howell were decided under earlier versions of TEX. CODE CRIM.
PROC. art. 42.12, but language requiring that the extension of community supervision be
made during the term of the community supervision has remained the same.


                                             10
were not options, as community supervision was over, and there was nothing

to comply with.

      Appellant is also mistaken in attaching any significance to the fact that

ten years had passed since appellant had originally been sentenced to two

years of community supervision. Appellant seems to believe that this time

period limited the court’s sentencing options, as “the judge was up against a

ten-year maximum limit on the total duration of community supervision.”

(appellant’s brief, p. 17). This is incorrect for two reasons. First, appellant’s

period of community supervision had expired after two years, and the

additional amount of time which had passed from that date until the date of

the hearing was not relevant to any calculation of punishment.5 Second, any

amount of community supervision which is assessed prior to an adjudication

of guilt does not count against the period of community supervision which can

be assessed once a court adjudicates a defendant’s guilt. See Slaughter v. State,

110 S.W.3d 500, 502–03 (Tex. App. –Waco 2003, pet. ref’d)(holding that in

5
   Under earlier versions of art. 42.12, this time period would have been relevant in
determining whether the State used due diligence in executing the capias, but this due
diligence requirement has been eliminated for most violations of community supervision.
See Garcia v. State, 387 S .W.3d 20, 23-24 (Tex. Crim. App. 2012) (“[B]y its 2003
amendments to Article 42.12, the Legislature eliminated the common-law due-diligence
defense and replaced it with the limited affirmative defense provided in the due-diligence
statute…. [As a result, the due-diligence defense now] “applies to only two revocation
allegations: failure to report to an officer as directed, and failure to remain within a
specified place.”).

                                           11
calculating maximum amount of time to be served on “regular” community

supervision, any period of deferred adjudication community supervision is

not counted); Cordova v. State, 2011 WL 3925765, at *3 (Tex. App. –Amarillo

2011, pet. ref’d) (opin. not designated for publication) (holding periods of

supervision under regular community supervision and deferred adjudication

supervision are not aggregated in determining the total period of supervision

allowable under the terms of art. 42.12). In other words, a court can sentence

a defendant to ten years “deferred adjudication” community supervision,

adjudicate the defendant guilty on the last day of that community supervision,

and place the defendant on a new ten year term of “regular” community

supervision. Fortunately, the trial court judge never gave any indication that

she felt this passage of time was significant or that she was up against any

limit other than her inability to further defer a finding of guilt.


      D. The trial court did have jurisdiction to proceed with an
      adjudication of guilt even though community supervision had
      expired, as the motion to adjudicate guilt and capias were
      issued prior to expiration of community supervision.

      While the trial court could not have extended appellant’s deferred

adjudication community supervision due to expiration of the community

supervision period, it did have jurisdiction over this case. A trial court has

continuing jurisdiction to hold a hearing and proceed with an adjudication of

                                         12
guilt if a motion to adjudicate and a capias are issued prior to the expiration of

the period of community supervision. TEX. CODE CRIM. PROC. art. 42.12, § 5(h).

This limited grant of continuing jurisdiction is the exclusive authority with

which a court is vested over a defendant once the deferred adjudication

community supervision period has expired. See Ex parte Donaldson, 86 S.W.3d

231, 232 (Tex. Crim. App. 2002) (“We have long held that a trial court has

jurisdiction to hear a motion to revoke [community supervision after the

period expires] as long as the motion was filed, and a warrant or capias

properly issued, during the probationary period.”); Whitson v. State, 429

S.W.3d 632, 636 (Tex. Crim. App. 2014) (same); Ex parte Moss, 446 S.W.3d

786, 788–90 (Tex. Crim. App. 2014) (Finding lack of jurisdiction when capias

not filed before expiration of community supervision period).

      So what could the trial court do? Proceed with an adjudication of guilt.

Once appellant was found guilty, the court had several options, from

sentencing appellant within the range of punishment for a state jail felony

(TEX. PENAL CODE § 12.35) to suspending sentence and assessing a new term of

community supervision under art. 42.12 § 3 of up to ten years. These options

were only available, however, once appellant had been adjudicated guilty.




                                       13
E. Conclusion

      In short, the record reflects that the trial court understood both the

limits of its jurisdiction and the options available (and not available) for

sentencing. The court’s comments about any lack of “discretion” referred to

its inability to further defer an adjudication of guilt and extend appellant’s

original community supervision. In this regard the court was correct, and

appellant’s contention that it could have done so is wrong.

      Appellant’s sole point of error is without merit, and should be

overruled.




                                      14
                                   PRAYER

      The State respectfully requests that this Court affirm the judgment of

the trial court.


                                               DEVON ANDERSON
                                               District Attorney
                                               Harris County, Texas



                                               /s/Kimberly Aperauch Stelter
                                               KIMBERLY STELTER
                                               Assistant District Attorney
                                               Harris County, Texas
                                               1201 Franklin, Suite 600
                                               Houston, Texas 77002
                                               (713) 755-5826
                                               State Bar Number: 19141400
                                               Stelter_kimberly@dao.hctx.net




                                      15
                          CERTIFICATE OF SERVICE

      This is to certify that a copy of the foregoing instrument is being served

by EFileTXCourts.Gov e-filer to the following email address




      Winston E. Cochran, Jr.
      Attorney at Law
      P.O. Box 2945
      League City, TX 77574
      winstoncochran@comcast.net




                                                /s/Kimberly Aperauch Stelter
                                                KIMBERLY STELTER
                                                Assistant District Attorney
                                                Harris County, Texas
                                                1201 Franklin, Suite 600
                                                Houston, Texas 77002
                                                (713) 755-5826
                                                State Bar Number: 19141400
                                                stelter_kimberly@dao.hctx.net




                                       16
                      CERTIFICATE OF COMPLIANCE

     The undersigned attorney certifies that this computer-generated

document has a word count of 3,600 words, based upon the representation

provided by the word processing program that was used to create the

document.




                                            /s/Kimberly Aperauch Stelter
                                            KIMBERLY STELTER
                                            Assistant District Attorney
                                            Harris County, Texas
                                            1201 Franklin, Suite 600
                                            Houston, Texas 77002-1923
                                            (713) 755-5826
                                            TBC No. 19141400
                                            stelter_kimberly@dao.hctx.net




                                    17
