Williamson v. State

• Decision Date: 26 September 1984
• Docket Number: No. 1103-83,1103-83
• Parties: Albert Jack WILLIAMSON, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 428

676 S.W.2d 428

Albert Jack WILLIAMSON, Appellant, v. The STATE of Texas, Appellee.

No. 1103-83.

Court of Criminal Appeals of Texas,

En Banc.

Sept. 26, 1984.

C. David Stasny, Bryan, for appellant.

Travis B. Bryan, III, Former Dist. Atty., Bill R. Turner, Dist. Atty., and Rodney Boyles, Asst. Dist. Atty., Bryan, Robert Huttash, State's Atty., Austin, for the State.

Before the court en banc.

ORDER ON APPELLANT'S PETITION FOR DISCRETIONARY REVIEW

PER CURIAM

It now appearing that the decision to grant appellant's petition for discretionary review was improvident, the appellant's petition for discretionary review is hereby ordered dismissed.

CLINTON, Judge, dissenting.

The decision of the Houston (14th) Court of Appeals that enough members of this Court voted to review was rendered in an unpublished opinion in its Cause No. B14-83-104-CR July 21, 1983. To provide an understanding of what the issue is, I set out the text of that opinion in full.

"This is an appeal from an order revoking probation. The offense is burglary of a building. The punishment is imprisonment for ten years.

In his sole ground of error, appellant asserts that the trial court was not neutral and detached in revoking his probation and imposing sentence. In response, the State alleges that the appellant is in no position to complain of the probation revocation because he had been given probation unlawfully.

Initially, appellant pled guilty and accepted deferred adjudication. On December 6, 1981, the trial court adjudicated appellant's guilt and sentenced him to ten years. On June 16, 1982, 191 days after sentencing, the trial court entered a 'shock probation' order. It is from the revocation of this probation that appellant appeals.

If appellant is improperly granted probation, he cannot thereafter complain of error in the revocation of that probation. Tamez v. State, 620 S.W.2d 586 (Tex.Crim.App.1981). The trial court is jurisdictionally precluded from granting shock probation after 180 days 'from the date the execution of the sentence begins.' TEX. CODE CRIM. PROC. ANN. art. 42.12 § 3e(a); State ex rel Bryan v. McDonald, 642 S.W.2d 492 (Tex.Crim.App.1982). Execution of the sentence begins on the date appellant is actually incarcerated under the sentence imposed and the jurisdictional time limits run from that date. Tamez, supra. Therefore, the trial court was without jurisdiction to grant 'shock probation' and appellant cannot complain of the revocation of this probation. Appellant's sole ground of error is overruled.

Accordingly, the judgment of the trial court is affirmed."

A majority of this Court has now determined that appellant's petition for discretionary review was improvidently granted. For reasons about to be stated, I respectfully dissent to that determination.

When the Court decided Houlihan v. State, 579 S.W.2d 213 (Tex.Cr.R.1979) and State ex rel Bryan v. McDonald, 642 S.W.2d 492 (Tex.Cr.App.1982), as well as several other cases in between, except for extending a time period, on the point at issue the statute read just as it does today, viz:

"Sec. 3e. (a) For purposes of this section, the jurisdiction of a court in which a sentence requiring confinement in the Texas Department of Corrections is imposed ... 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 ... suspend further execution of the sentence imposed and place the defendant on probation ..." ¹

The opinion of the court of appeals notes that the trial court adjudicated guilt and "sentenced" appellant on December 6, 1981, and starts counting from that date. Under Article 42.09, § 1, V.A.C.C.P., "sentence begins to run on the day it is pronounced," unless, of course, accused gives notice of appeal and is enlarged on bail, id., § 2, and the court seems to have equated that day with "the date appellant is actually incarcerated under the sentence imposed," citing Tamez v. State, 620 S.W.2d 586 (Tex.Cr.App.1981). With such reasoning I must disagree.

Simply stated, since each has its own legal connotation the date a sentence "begins to run" may not be "the date the execution of the sentence actually begins," as a factual matter.

Though free to choose "the day [sentence] is pronounced" as a starting point for continuing jurisdiction of the trial court that imposed it, the Legislature devised another formulation when it wrote § 3e(a), supra. And, as in Houlihan, we may not know all that was contemplated "when it so carefully used and reiterated the phrase," but read literally "it means when a defendant actually begins his sentence," Houlihan, supra, at 217.

That a sentence "begins to run on the day it is pronounced" does not necessarily mean that "a defendant actually begins his sentence" on that same day or, to use the statutory phrase, that "the execution of the sentence actually begins" on the same day it is pronounced. To pronounce a sentence is not to execute it. A sentence is "that part of a judgment ... that orders the punishment to be carried into execution in the manner prescribed by law," Article 42.02, V.A.C.C.P. Pronouncing a sentence and carrying it into execution are separate actions that rarely, if ever, occur simultaneously for the simple reason that until a sentence is included in a written judgment there is no formal commitment for a sheriff or other peace officer to execute, nor to authorize the Department of Corrections to admit a convict. Thus, though a sentence may be "running" in time from date of pronouncement, still execution of it may not have "actually" begun.

Therefore, we must answer the question left open in Houlihan: When does execution of a sentence actually begin? There, for purposes of the opinion, we said it was either on the day Houlihan had been arrested on a capias after mandate and confined in county jail or on the day he was delivered to and admitted by Texas Department of Corrections. But since arrest was followed the next day by delivery, the date was not crucial; we found it unnecessary to decide "which date was truly contemplated by the Legislature," and did not.

In the instant case, however, we confront a set of very different circumstances. The trial court determined to proceed with an adjudication of guilt on the original charge, and did adjudicate guilt, assess punishment and pronounce sentence on December 7, 1981. ² From the record we know that appellant had made bail October 23, 1981 and that a capias...