Davis v. State

• Decision Date: 16 October 2019
• Docket Number: NO. 09-18-00262-CR,NO. 09-18-00263-CR,NO. 09-18-00264-CR,09-18-00262-CR,09-18-00263-CR,09-18-00264-CR
• Parties: AUSTIN EDWARD DAVIS, Appellant v. THE STATE OF TEXAS, Appellee
• Court: Texas Court of Appeals

AUSTIN EDWARD DAVIS, Appellant v. THE STATE OF TEXAS, Appellee

NO. 09-18-00262-CR

NO. 09-18-00263-CR

NO. 09-18-00264-CR

Court of Appeals Ninth District of Texas at Beaumont

Submitted on September 3, 2019

October 16, 2019

On Appeal from the Criminal District Court Jefferson County, Texas

Trial Cause Nos. 16-25965, 16-25966, 16-25967

MEMORANDUM OPINION

Austin Edward Davis appeals the trial court's revocation of his community supervision following his guilty plea and placement on shock probation.¹ The Stateindicted Davis in three separate causes for burglary of a habitation, a second-degree felony. See Tex. Penal Code Ann. § 30.02(a)(1), (c)(2) (West 2019). Davis pled guilty to each count, and pursuant to the plea bargain agreement, the trial court sentenced him to ten years of incarceration in the Institutional Division of the Texas Department of Criminal Justice in each case with the sentences to run concurrently. Davis filed motions for shock probation in all three causes, which the trial court granted and placed him on community supervision.

Following multiple violations, the State moved to revoke Davis's community supervision. At the hearing on the motions to revoke, Davis pled "true" to several violations, including: (1) repeated failed drug tests; (2) drug use; (3) failing to report; and (4) failing to complete a drug intervention program.² The trial court revoked Davis's probation in trial cause number 16-25965 and ordered that he serve an eight-year prison term. The trial court held the motions to revoke in cause numbers 16-25966 and 16-25967 in abeyance. In a subsequent hearing on Davis's motion for new trial, the trial court explained on the record that the ten-year community supervision sentences would continue to run concurrently during Davis's incarceration, and he would not be punished for violating the terms whileincarcerated. The trial court modified the terms of the community-supervision orders in those cause numbers and ordered Davis to complete a drug treatment program upon his being released from prison. Davis and his counsel attended the hearing on the motion to revoke. In the hearing, the court pronounced,

COURT: Anything else? I'm ready. Here's what I'm going to do. I'm going to find there is sufficient evidence supporting these motions to revoke probation to grant them by a preponderance of the evidence or greater as Allegations 1 through 8 are proven true beyond a reasonable doubt in each of these motions to revoke probation in each of these three cases.

In 25965, your probation is revoked. You are hereby sentenced to confinement in the Institutional Division of the Texas Department of Criminal Justice to serve a term of 8 years. And you're going to be given credit - - looks like 380 days is what we unofficially show.

The other two, what I'm going to do is hold them in abeyance because he's not going to get the kind of help that's necessary in prison for some of his problems and we're going to put you back - - you're going to continue your probation when you get out of this confinement on these two and we're going to do some kind of court-ordered substance abuse. What do you think would be the right thing from the probation office?

. . .

COURT: Okay. Well, we'll see. We'll do that. So, you're going to go serve this 8-year sentence. When you are released, you will be back on probation; and we'll pick up probation where we left off on these other two cases. I don't want to see you back again on a motion to revoke probation, okay? Do you understand?

At the hearing on the motion for new trial, the trial court explained the following:

COURT: Similarly allege that they were sentenced together to run concurrently for any accumulation order - - the Court didn't accumulateanything. The Court is continuing to run these sentences concurrently. He's on probation - - his probation is running on 25966 and 25967 as we speak even though he's incarcerated. It's not held in abeyance. The motion to revoke probation is held in abeyance. His sentence continues so that when the parole authorities decide to release him with 8 years, he will be picking up whatever is left remaining on the time of his probation term.

The Court did that, fashioned that, like it's done in other cases where the Court feels as though some of these problems that he's facing that resulted in his probation revocation are not addressed effectively in the prison system. It gives the probation office some time to assist him to whatever his problems are and if he fails those, then he could be revoked and sentenced and I would presume that is when the motion for new trial or motion in arrest of judgment would be timely. But right now, all of these are running concurrently just like they've always been.

COUNSEL: Okay.

COURT: He's not - - when we say held in abeyance, the motions are held in abeyance, not his sentence is held in abeyance, the motions. He is technically on probation still even though he's in prison. He's not going to be revoked because he's unable to follow the terms for those reasons. When he gets out, hopefully, we can help him address whatever problems that might not have been addressed in prison.

Meanwhile, he has on these two, 25966 and 25967, he has been on probation and continues on probation since January 9th, 2017; and each day is a day toward completion of that. Those aren't being held in abeyance and stacked. They are concurrent. Maybe the confusion is when we say held in abeyance, it's the motions are held in abeyance, not his sentences. The motions are held in abeyance so that when he gets out, let's say he did the flat 8 years, when he gets out in 8 years, he'd have, I guess, 1 year or less left of probation.

Davis appealed the revocation and the two orders modifying the terms of his community supervision. In four issues, Davis contends: (1) the trial court erred bypartially cumulating or "stacking" his sentences, which had been previously imposed and executed as concurrent, causing an increase in his punishment for the convictions; (2) the trial court's revocation ruling violated his plea bargain agreement with the State; (3) the trial court imposed greater punishment in the form of fees and duplicate costs upon Davis in cause no. 16-25965 than what was originally imposed and executed; and, (4) the trial court failed to properly credit against Davis's sentences the entire jail time credits owed to him for the time that he was confined under these convictions. We affirm the trial court's judgment revoking Davis's shock probation in cause number 16-25965. We dismiss Davis's appeals in cause numbers 16-25966 and 16-25967 for want of jurisdiction.³

Standard of Review and Law

We review a probation revocation for an abuse of discretion. See Cardona v. State, 665 S.W.2d 492, 493-94 (Tex. Crim. App. 1984); Beaty v. State, 49 S.W.3d 606, 607 (Tex. App.—Beaumont 2001, pet. ref'd) (citing Kaylor v. State, 9 S.W.3d 205, 206 (Tex. App.—San Antonio 1999, no pet.)). "The State must prove by a preponderance of the evidence that a defendant violated the terms of his probation." Cobb v. State, 851 S.W.2d 871, 873 (Tex. Crim. App. 1993); see also Leonard v.State, 385 S.W.3d 570, 587 (Tex. Crim. App. 2012). "[A defendant's] plea of true, standing alone, is sufficient to support the revocation of probation." Cole v. State, 578 S.W.2d 127, 128 (Tex. Crim. App. [Panel Op.] 1979); see also Moses v. State, 590 S.W.2d 469, 470 (Tex. Crim. App. [Panel Op.] 1979).

Analysis

A. Jurisdiction

Jurisdiction cannot be ignored by a court; it is fundamental and impacts the power of the court to hear and determine a case. State v. Riewe, 13 S.W.3d 408, 410 (Tex. Crim. App. 2000). Appellate courts have the power to address the threshold issue of their jurisdiction sua sponte. See State v. Roberts, 940 S.W.2d 655, 657 (Tex. Crim. App. 1996), overruled on other grounds by State v. Medrano, 67 S.W.3d 892 (Tex. Crim. App. 2002). If we lack jurisdiction, we only have power to dismiss the appeal for want of jurisdiction. In re Garcia, 363 S.W.3d 819, 821 (Tex. App.—Austin 2012, no pet.) (orig. proceeding) (citation omitted)

"The standard for determining jurisdiction is not whether the appeal is precluded by law, but whether the appeal is authorized by law." Abbott v. State, 271 S.W.3d 694, 696-97 (Tex. Crim. App. 2008). An order modifying the terms of community supervision is not an appealable order. See Basaldua v. State, 558 S.W.2d 2, 5 (Tex. Crim. App. 1977); see also Christopher v. State, 7 S.W.3d 224,225 (Tex. App.—Houston [1st Dist.] 1999, pet. ref'd) (citations omitted). Because the orders in trial cause numbers 16-25966 and 16-25967 simply modified the terms of Davis's community supervision, they are not appealable, and we lack jurisdiction to address the merits. Therefore, we dismiss the appeals in those cause numbers.

B. Issue One: Stacked Sentences

In his first issue, Davis contends the trial court impermissibly stacked his sentences; however, neither the record from the revocation hearing nor the trial court's orders support Davis's argument. The offense of burglary of a habitation is a second-degree felony, carrying with it a punishment range of two to twenty years. See Tex. Penal Code Ann. §§ 12.33 (West 2019), 30.02(a)(1), (c)(2). At the hearing on the motion to revoke, the trial court explained it sentenced Davis to serve eight years of confinement, and credited Davis for 380 days of time served. The trial court then explained the other two motions would be held in abeyance, Davis would continue his probation, and upon his release from confinement, as a condition of his continued probation, he would receive substance abuse treatment.

We presume the regularity of the proceedings and documents in the lower court, including the judgment. See McCloud v. State, 527 S.W.2d 885, 887 (Tex. Crim. App. 1975) (citation omitted). "The presumption of regularity created by recitals in the judgment can be overcome only when the record otherwiseaffirmatively reflects that...