Tamez v. State

• Decision Date: 27 May 1981
• Docket Number: No. 2,No. 67298,67298,2
• Citation: 620 S.W.2d 586
• Parties: Ernesto TAMEZ, Appellant, v. The STATE of Texas, Appellee
• Court: Texas Court of Criminal Appeals

Page 586

620 S.W.2d 586

Ernesto TAMEZ, Appellant, v. The STATE of Texas, Appellee.

No. 67298.

Court of Criminal Appeals of Texas, Panel No. 2.

May 27, 1981.

Rehearing Denied Sept. 23, 1981.

J. Manuel Banales, Corpus Christi, for appellant.

Thomas L. Bridges, Dist. Atty., and Joel B. Johnson, Asst. Dist. Atty., Sinton, Robert Huttash, State's Atty., Austin, for the State.

Before ONION, P. J., and TOM G. DAVIS and CLINTON, JJ.

OPINION

ONION, Presiding Judge.

This is an appeal from an order revoking probation.

On August 30, 1979, appellant entered a guilty plea before the court to the offense of burglary of a building. His punishment was assessed at five (5) years' imprisonment and at a fine of $500.00. Sentence was imposed on the same day. ¹ No notice of appeal was given, and the appellant was confined in the Department of Corrections.

On January 4, 1980, the trial court vacated the sentence and placed the appellant on "shock probation," subject to certain probationary conditions. See Article 42.12, § 3e(a) and (b), V.A.C.C.P.

On May 19, 1980, the State filed a motion to revoke probation alleging that the appellant had, on or about May 1, 1980, committed a penal offense and had knowingly associated with certain named individuals which appellant knew to be convicted felons in violation of his probationary conditions.

On July 3, 1980, the court conducted a hearing on said motion at the conclusion of which the court revoked probation on the grounds alleged. The court then re-sentenced the appellant. Notice of appeal was given.

On appeal appellant contends the court erred in denying his motion for discharge under Article 42.12, § 8(a), V.A.C.C.P., when the hearing on the State's motion to revoke was not heard within twenty (20) days of appellant's request for a speedy hearing. He further contends the court erred in refusing to give him credit on his sentence for the 120 days served in the Department of Corrections.

At the outset we are confronted with the question of whether under the circumstances the trial court properly invoked the provisions of Article 42.12, § 3e(a) and (b), supra, authorizing "shock probation," which reads:

"(a) For the purposes of this section, the jurisdiction of the courts in this state in which a sentence requiring confinement in the Texas Department of Corrections is imposed for conviction of a felony shall continue for 120 days from the date the execution of the sentence actually begins. After the expiration of 60 days but prior to the expiration of 120 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 such sentence is otherwise eligible for probation under this article and prior to the execution of such sentence, the defendant had never been incarcerated in a penitentiary serving a sentence for a felony and in the opinion of the judge the defendant would not benefit from further incarceration in a penitentiary. Probation may be granted under this section only if the offense for which the defendant was sentenced was an offense other than criminal homicide, rape, or robbery.

"(b) 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 judge, the clerk of the court shall request a copy of the defendant's record while incarcerated from the Texas Department of Corrections. Upon receipt of such request, the Texas Department of Corrections shall forward to the court, as soon as possible, a full and complete copy of the defendant's record while incarcerated.

The above quoted portion of Article 42.12, V.A.C.C.P., provides for "shock probation" under certain conditions. It extends for 120 days from the date the sentence actually begins the jurisdiction of trial courts over felony sentences which require confinement in the Department of Corrections. It provides only after the expiration of 60 days from the date on which the execution of the sentence actually commences the court on its own motion or the motion of the defendant may grant "shock probation" with certain exceptions. At such time the defendant's record will be available to the court before acting on said motion.

In the instant case, the appellant applied for probation prior to his plea of guilty before the court. There was no specific request for "shock probation." In imposing the original sentence on August 30, 1979, the court, however, granted "shock probation" prematurely and before it had jurisdiction to do so. The formal sentence noted the punishment had been assessed at five years' imprisonment and a fine of $500.00, but the indeterminate sentence law (Article 42.09, V.A.C.C.P.) was not applied. Further, the sentence only ordered confinement in the Department of Corrections for not less than 60 days nor more than 120 days "in accordance with Article 42.12, § 3e(a), Texas Code of Criminal Procedure ...." ² Such period of confinement was thus vague and uncertain and the sentence certainly was not in accordance with the cited § 3e(a) or other statutes.

Further, it is observed that when the court actually sought to place the appellant on shock probation it was January 4, 1980, after the expiration of the 120 days provided by Article 42.12, § 3e(a), supra, and after it had lost jurisdiction to do so. Adams v. State, 610 S.W.2d 780 (Tex.Cr.App.1981); Houlihan v. State, 579 S.W.2d 213, 219 (Tex.Cr.App.1979). There further appears no motion for "shock probation" by the appellant or by the court within 60 days after commencement of the execution of the sentence on August 30, 1979 and prior to expiration of the 120 days.

The court, in taking such action 126 days after the commencement of the execution of the sentence, did not suspend the further execution of the sentence as provided in said § 3e(a), but entered an order vacating the sentence, suspending the imposition of the sentence, and placing the appellant on probation. Following the revocation of probation, the court re-sentenced the appellant on July 3, 1980. This was not the procedure that should have been followed. ³ At the time of the second sentence the court gave the appellant credit back to March 2, 1980 for jail time, but refused to give the appellant credit for 120 days spent in the Department of Corrections.

It is clear that the trial court attempted to grant "shock probation," but did so prematurely when it was without authority to do so, and that when it actually sought to place the appellant on "shock probation" 126 days had elapsed since the commencement of the execution of the sentence and the court was without jurisdiction to take such authority. Adams v. State, supra.

The appellant was never legally on "shock probation," and therefore is not in a position to complain of matters in connection with the revocation thereof. See Popham v. State, 154 Tex.Cr.R. 529, 228 S.W.2d 857 (1950); Hartley v. State, 169 Tex.Cr.R. 341, 334 S.W.2d 287 (1960); Tritt v. State, 379 S.W.2d 919 (Tex.Cr.App.1964) (Opinion on Appellant's Motion for Rehearing); Branch v. State, 477 S.W.2d 893, 896 (Tex.Cr.App.1972). Appellant's contention that the court erred in denying his motion for discharge under Article 42.12, § 8(a), V.A.C.C.P., is therefore without merit. ⁴

The court being authorized only to suspend the further execution of the sentence when granting "shock probation," Article 42.12, § 3e(a), supra, the court was without authority to vacate the sentence of August 30, 1979. Therefore said sentence is reinstated and the sentence of July 3, 1980 is set aside. The appellant served 120 days in the Department of Corrections and is clearly entitled to credit on the sentence for that time. See and cf. North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969). He is also entitled to credit on said sentence for the jail time which the court awarded him being 124 days. ⁵ He is not entitled to credit on his sentence for the time he was on probation. Adams v. State, supra. And he is not entitled to credit on his sentence for time in which he has been out of custody on appeal bond. Ex parte Allen, 548 S.W.2d 905 (Tex.Cr.App.1977).

The judgment is in need of reform to show the imposition of the $500.00 fine which was imposed as part of the penalty but which is not reflected in the judgment. The judgment is so reformed. The reinstated sentence is so reformed so as to apply the indeterminate sentence law and to show that appellant is confined for not less than two nor more than five years, and to eliminate therefrom any reference to confinement for not less than 60 nor more than 120 days. The sentence of August 30, 1979 is so reformed. Where the Court of Criminal Appeals has the necessary data and evidence before it for reformation, a judgment and sentence may be reformed on appeal. Knight v. State, 581 S.W.2d 692 (Tex.Cr.App.1979).

For reasons stated, the judgment as reformed is affirmed. A copy of this opinion shall be furnished the Department of Corrections.

1 The sentence made the express finding that in the commission of the burglary of a building offense no firearm or other deadly weapon was used or exhibited. Such finding should be made in the judgment in accordance with Article 42.12, § 3f(a)(2), V.A.C.C.P., rather than in the sentence.

2 Article 42.12, § 3f(b), V.A.C.C.P., provides:

"(b) If there is an affirmative finding that the defendant convicted of a felony of the second degree or higher used or exhibited a firearm during the commission or flight from commission of the offense and the defendant is granted probation, the court may order the defendant confined in the Texas Department of Corrections for not less than 60 and not more than 120 days. At any time after...