Lundgren v. State

• Decision Date: 25 June 2014
• Docket Number: No. PD–1322–13.,PD–1322–13.
• Citation: 434 S.W.3d 594
• Parties: Jerry Paul LUNDGREN, Appellant v. The STATE of Texas.
• Court: Texas Court of Criminal Appeals

434 S.W.3d 594

Jerry Paul LUNDGREN, Appellant

v.The STATE of Texas.

No. PD–1322–13.

Court of Criminal Appeals of Texas.

June 25, 2014.

Barry Green, Decatur, for Appellant.

James Stainton, Wise County Attorney, Lisa C. McMinn, State's Attorney, Austin, for the State.

OPINION

HERVEY, J., delivered the opinion of the unanimous Court.

Appellant, Jerry Paul Lundgren, was arrested for driving while intoxicated. He pled guilty pursuant to a plea-bargain agreement, waived his right to appeal, and was placed on community supervision. About a week later, Appellant was arrested again. After his second arrest, Appellant filed a motion for new trial and a notice of appeal in his first case. Later, the State filed a motion to revoke Appellant's community supervision, and the trial court did so. Appellant argues that his filing of a timely notice of appeal and motion for new trial retroactively stayed the commencement of his community supervision; therefore, the court of appeals erred when it upheld the trial court's ruling. Because we conclude under these facts that Appellant's filing of a timely and effective motion for new trial retroactively stayed the commencement of his community supervision until it was overruled by operation of law, we will reverse the judgment of the court of appeals and remand this case.

Background

A. Trial

Appellant was arrested for misdemeanor driving while intoxicated (“DWI”). On January 7, 2011, Appellant pled guilty pursuant to a plea-bargain agreement and was sentenced to 365 days' confinement, which was suspended for 18 months of community supervision. The judgment stated that Appellant's community supervision commenced the same day the judgment was entered. Appellant's plea-bargain agreement, which the trial court followed, included two waivers of appeal, the details of the bargain, and the signatures of Appellant and his counsel. On January 14, 2011—a week after Appellant pled guilty and his punishment was assessed—he was arrested for DWI again.¹

After Appellant's arrest for the second DWI, Appellant filed a timely notice of appeal and motion for new trial in his first case. His notice of appeal was filed on January 19, 2011, and his motion for new trial was filed on January 28, 2011. After Appellant's filings, the State filed a motion to revoke Appellant's community supervision (from the first offense) for violating conditions of his community supervision (because of the second offense). Appellant's appeal was dismissed by the court of appeals on March 3, 2011, his motion for new trial was overruled by operation of law on March 23, 2011, and the court of appeals issued its mandate dismissing Appellant's appeal on May 12, 2011. SeeTex.R.App. P. 21.8(a) & (c) (stating that a motion for new trial that is not timely ruled upon is denied by operation of law 75 days after the original sentence is imposed or suspended in open court). The court of appeals asked Appellant to show grounds that his appeal conferred jurisdiction on the court of appeals, but the court never received a response. As a result, the court of appeals dismissed Appellant's appeal. See Lundgren v. State, No. 02–11–00023–CR, 2011 WL 754344 (Tex.App.-Fort Worth Mar. 3, 2011, no pet.) (per curiam) (mem.op.) (not designated for publication).

After mandate issued, the trial court entered two additional judgments in Appellant's first DWI case. First, it entered a Post Mandate Enforcement of Prior Judgment of Conviction that stated Appellant's community supervision began the day the judgment was entered, June 22, 2011. Second, it entered a judgment nunc pro tunc to reflect that Appellant's driver's license would be suspended due to his being convicted of DWI. The second judgment also reflected that Appellant's community supervision began on June 22, 2011 and not January 7, 2011, as the original judgment stated.

In response to the State's motion to revoke, Appellant filed a motion to quash the State's revocation motion because Appellant claimed that he did not violate his community supervision. His argument was based on the fact that he had timely filed a motion for new trial and notice of appeal in his first case; therefore, his community supervision became enforceable only after the appellate mandate issued and his motion for new trial was overruled. To support his argument, Appellant cited Ross v. State, 523 S.W.2d 402, 405 (Tex.Crim.App.1975) and McConathy v. State, 544 S.W.2d 666 (Tex.Crim.App.1976), respectively.² The trial court overruled Appellant's motion to quash and concluded that Appellant failed to secure the permission of the court to appeal or file a motion for new trial. In addition, the court ruled that it could revoke Appellant's community supervision because Appellant's supervision was effective on January 7, 2011—the date the original judgment was signed. Therefore, the trial court reasoned, Appellant's second arrest was a violation of the conditions of his community supervision.

On February 2, 2012, the trial court revoked Appellant's community supervision and remanded him to the custody of the sheriff to discharge a 300 day term of confinement.³ Appellant timely appealed the trial court's revocation order.

B. Appeal

On appeal, Appellant and the State advanced largely the same arguments. The court of appeals began its analysis by noting, “all parties agree that the terms and conditions of community supervision are not in effect while a case is on appeal or during the pendency of a motion for new trial.” Lundgren v. State, 417 S.W.3d 11, 15–16 (Tex.App.-Fort Worth 2013) (citing Ross, 523 S.W.2d at 405; Humphries v. State, 261 S.W.3d 144, 145 (Tex.App.-San Antonio 2008, no pet.); McConnell v. State, 34 S.W.3d 27 (Tex.App.-Tyler 2000, no pet.)). The court of appeals also recognized that precedent from this Court “suggests” that filing a motion for new trial or an appeal from a judgment ordering community supervision would retroactively stay the commencement of an appellant's community supervision until the motion and appeal are resolved and the judgment becomes final. However, relying on an opinion from another court of appeals, the court concluded that the trial court retained jurisdiction to “exercise its authority to punish violations of its conditions of community supervision,” and that Appellant's timely “notice of appeal and motion for new trial were ineffective to retroactively act as a cure for [the] violations.” Id. at 20 (quoting McConnell, 34 S.W.3d at 30). The court also reasoned that its decision was proper because “the unique procedural posture of this case requires a different result.” Id.

With respect to Appellant's argument regarding the post-mandate judgments, the court of appeals stated that, “[a]t the time of Appellant's violation, ... [Appellant's] community supervision commenced seven days before the violation.” Id. Therefore, the court concluded, the post-mandate judgments entered by the trial court “did not alter what occurred before they were entered.” Id.

Appellant then filed a petition for discretionary review, which we granted on two grounds: (1) “The court of appeals, in a 2–1 decision, erred in holding that the terms and conditions of the Defendant's community supervision began, not when the court of appeals' mandate issued after a timely appeal was filed, but at the earlier date when the trial court entered its original judgment based upon the Defendant's negotiated plea of guilty,” and (2) “The court of appeals, in a 2–1 decision, erred in holding that the subsequent judgment, issued by the trial court after a mandate had issued by the court of appeals, did not control the beginning date of the Defendant's terms and conditions of probation even though the State did not challenge or appeal that subsequent judgment.”

Arguments of the parties

Appellant argues that he was not on community supervision when he was alleged to have violated the conditions of his supervision because his filing of a notice of appeal and a motion for new trial retroactively stayed the commencement of his community supervision. Therefore, Appellant asserts, the court of appeals erred when it held that the trial court properly overruled Appellant's motion to quash. In support of his argument, Appellant cites caselaw from this Court and secondary source material. Appellant's Brief on the Merits, at 5 (citing Ross, 523 S.W.2d at 405; Delorme v. State, 488 S.W.2d 808, 810 (Tex.Crim.App.1973); Smith v. State, 478 S.W.2d 518, 520 (Tex.Crim.App.1972)); 43B George E. Dix & John M. Schmolesky, Texas Practice: Criminal Practice and Procedure § 55:137 (3d ed.2011).

The State agrees with Appellant that, once he appealed his conviction, state law is clear that an appellant's punishment, including community supervision, is stayed “while the case is on appeal.” See Ross, 523 S.W.2d at 402. However, the State argues that the cases cited by Appellant are distinguishable because in those cases “there was a jury or judge verdict, or no waiver by appellant. The State is unaware of any Texas cases where the [d]efendant pled guilty with a valid appellate waiver and subsequently appealed.” To support its waiver argument, the State cites a number of cases from this Court. See Monreal v. State, 99 S.W.3d 615, 617 (Tex.Crim.App.2003); Ex parte Tabor, 565 S.W.2d 945, 946 (Tex.Crim.App.1978); Ex parte Hogan, 556 S.W.2d 352, 353 (Tex.Crim.App.1977).

Discussion

A. Appellant's notice of appeal did not toll the commencement of his community supervision because his notice of appeal was ineffective.

We have addressed the finality of judgments in a number of lines of cases,⁴ and, in the context of convictions on appeal, we have repeatedly held that a judgment of conviction is not final while the conviction is on appeal. Milburn v. State, 201 S.W.3d 749, 752 (Tex.Crim.App.2006). This is because of the possibility that the trial court's judgment “could be retroactively vitiated by the mere filing of a ... notice of appeal.” Id. at...