State v. Smith, 01-88-00572-CR

• Decision Date: 17 November 1988
• Docket Number: No. 01-88-00572-CR,01-88-00572-CR
• Parties: The STATE of Texas, Appellant, v. Jesse James SMITH, Appellee. (1st Dist.)
• Court: Texas Court of Appeals

Page 235

762 S.W.2d 235

The STATE of Texas, Appellant, v. Jesse James SMITH, Appellee.

No. 01-88-00572-CR.

Court of Appeals of Texas,

Houston (1st Dist.).

Nov. 17, 1988.

Discretionary Review Granted March 1, 1989.

Michael J. Guarino, Crim. Dist. Atty., Roger L. Ezell, Asst. Dist. Atty., Galveston County, for appellant.

Rachel Blumberg, Galveston, for appellee.

Before EVANS, C.J., and COHEN and LEVY, JJ.

OPINION

EVANS, Chief Justice.

Appellee pleaded guilty to the offense of robbery and was sentenced to 10 years confinement. He was remanded into the custody of the sheriff on February 10, 1988, and held in the county jail pending transfer. He remained in the county jail until June 1, 1988, when a hearing was held on his motion for probation following execution of sentence. At that hearing, the court granted appellee's motion and issued an order granting suspension of sentence, or "shock probation." Appellee was subsequently released from the county jail and was placed on probation.

Pursuant to Tex.Code Crim.P.Ann. art. 44.01 (Vernon 1988), the State brings this appeal, contending that the order granting shock probation was improperly granted.

As a threshold matter, appellee contends that this Court lacks jurisdiction to hear the appeal because the granting of a motion for shock probation is not one of the enumerated categories under article 44.01 in which the State is allowed to appeal in a criminal case. See Tex.Code Crim.P.Ann. art. 44.01 (Vernon 1988). However, article 44.01(b) provides, "The State is entitled to appeal a sentence in a case on the ground that the sentence is illegal." Because that is precisely the State's position in this case, we conclude that the appeal is proper.

In a single point of error, the State argues that the trial court was without authority to grant shock probation because appellee had never served any of his sentence in the Texas Department of Corrections (hereinafter "TDC"). This appears to be a case of first impression.

The applicable portion of Tex.Code Crim.P.Ann. art. 42.12, sec. 3e. (a) (Vernon 1988) reads:

For the purposes of this section, the jurisdiction of a court in which a sentence requiring confinement in the Texas Department of Corrections is imposed for conviction (of a felony) shall continue for 180 days from the date the execution of the sentence actually begins. After the expiration of 60 days but prior to the expiration of 180 days from the date the execution of the sentence actually begins, the judge of the court that imposed such sentence may on his own motion or on written motion of the defendant, suspend further execution of the sentence imposed and place the defendant on probation under the terms and conditions of this article, if in the opinion of the judge the defendant would not benefit from further incarceration in a penitentiary.

It is the State's position that the "shock" of spending time in the TDC, not merely in the county jail, is what the legislature envisioned as the motivating factor that might lead a defendant to become rehabilitated. Therefore, the State contends, a trial judge would have no authority to issue an order granting shock probation unless and until a defendant had actually been incarcerated in the TDC for a period of not less than 60 days nor more than 180 days. Because appellee in this case had never been transferred to the TDC to begin serving the sentence imposed, the State argues that the grant of shock probation was improper.

The record reflects that the trial court's judgment orders appellee confined "in an institution operated by the Department of Corrections of the State of Texas" for the requisite period, and it further orders that he "be delivered by the Sheriff of Galveston County, Texas, immediately to the Department of Corrections, State of Texas, or any other person legally authorized to receive such convicts, who shall convey him to said penitentiary." (Emphasis added.) The judgment then orders appellee remanded into the custody of the Sheriff of Galveston County, Texas, "until such time as the Sheriff can obey the directions of this sentence."

The State concedes that appellee had no power or control over his transfer to the TDC. The State simply contends that there is no statutory authority for shock probation under the circumstances presented. We disagree, concluding that appellee should not be penalized by the State's failure to carry out the court's express order. To hold otherwise would give the State the ultimate authority to determine whether and when a defendant would ever be eligible for shock probation.

There is no express language in the statute that requires that a defendant be incarcerated in the TDC before he becomes eligible for shock probation. The statute addresses the jurisdiction of a court in which a sentence "requiring confinement in the Texas Department of Corrections is imposed." Here, the judgment entered expressly orders appellee's confinement in the TDC.

Nor is there any longer a requirement that the trial judge review a defendant's penitentiary record prior to granting shock probation. Previously, article 42.12, sec. 3e. (b) read:

When the defendant files a written motion requesting suspension by the court of further execution of the sentence and placement on probation, or when requested to do so by the court, the clerk of the court shall request a copy of the defendant's record while incarcerated from the Texas Department of Corrections ... (emphasis added).

Tex.Code Crim.P.Ann. art. 42.12, sec. 3e. (b) (Vernon 1979), ch. 306, sec. 1, 1977 Tex.Gen.Laws 821, amended by ch. 69, sec. 1, 1981 Tex.Gen.Laws 821.

In 1981, this was changed to read as follows:

When the defendant files a written motion requesting suspension by the court of further execution of the sentence and placement on probation, and when requested to do so by the court, the clerk of the court shall request a copy of the defendant's record while incarcerated from the Texas Department of Corrections ...

Tex.Code Crim.P.Ann. art. 42.12, sec. 3e. (e) (Vernon 1988) (emphasis added).

Prior to 1981, then, when a defendant filed a motion for shock probation, the clerk of the court was required to request a copy of his record from the TDC. Now, however, the code simply states that the clerk must request the record only when the motion for shock probation has been filed and the court also requires it. Thus, the only mandatory language applies to the duties of the clerk of the court.

Moreover, prior to 1981, there was no requirement that the court hold a hearing before granting a defendant's motion for shock probation. The statute currently requires a hearing before shock probation can be granted. At the hearing, the judge can review all the evidence and determine whether the defendant would be an appropriate candidate for shock probation. If a TDC record is available, the judge can request it, but the statute no longer requires the judge to do so.

Further, the language in the statute giving a trial...