State v. Posey
2011 Tex. Crim. App. LEXIS 3
Tex. Crim. App.2011Background
- Posey was convicted by a jury of two counts of criminally negligent homicide with a deadly-weapon finding, and the jury sentenced him to two years with probation.
- Trial court placed Posey on jury-recommended regular community supervision for ten years; judgments stated confinement for two years with 10 years probated.
- State moved to revoke supervision; after a hearing, court found violations and sentenced Posey to 22 months on each count, to run concurrently; court suggested shock probation later.
- Posey filed motions seeking shock probation; the trial court granted shock probation after a hearing and issued orders extending supervision by five years and placing Posey back on supervision.
- The State appealed, contending the court lacked jurisdiction to grant shock probation due to deadly-weapon findings and ineligibility for judge-ordered supervision; Court of Appeals agreed with limitations on shock probation.
- Texas Court of Criminal Appeals held that a trial judge may grant shock probation only if the defendant is eligible for judge-ordered community supervision, and Posey was not eligible due to the deadly-weapon finding.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Is shock probation available when deadly-weapon finding blocks judge-ordered supervision? | Posey argued jury-recommended supervision sufficed; shock probation should be available if otherwise eligible. | State argued deadly-weapon finding renders ineligible for judge-ordered supervision and shock probation. | Shock probation not available; ineligible due to deadly-weapon finding. |
| May a trial court grant shock probation when initial punishment was jury-sentenced with a deadly-weapon finding? | Posey contends the jury’s role and eligibility for regular supervision permit shock probation. | State contends only judge-ordered eligibility matters; jury-found eligibility insufficient for shock. | No; shock must await eligibility under Article 42.12 §6(a)(1) tied to judge-ordered supervision. |
| Does §6(a)(1) refer to eligibility under the entire Article 42.12 or only §3 (judge-ordered supervision)? | Posey: §6(a)(1) refers to Article 42.12 as a whole; jury-recommended eligibility should count. | State: §6(a)(1) refers to judge-ordered eligibility (§3) only. | Refers to judge-ordered eligibility; §6(a)(1) requires eligibility under §3. |
| Can the presence of the jury’s deadly-weapon finding be reconciled with eligibility for shock probation under §6? | Jury already placed Posey on community supervision; shock probation should be available if otherwise eligible. | Deadly-weapon finding bars eligibility for both judge-ordered and shock supervision. | Deadly-weapon finding bars eligibility; shock probation cannot be granted. |
Key Cases Cited
- State v. Dunbar, 297 S.W.3d 777 (Tex. Crim. App. 2009) (ineligibility for regular probation extends to shock probation under §6)
- Ex parte Austin, 746 S.W.2d 226 (Tex. Crim. App. 1988) (deadly weapon finding blocks regular probation absent other eligibility; shock probation only if otherwise eligible)
- State v. Lima, 825 S.W.2d 733 (Tex. App.-Houston [14th Dist.] 1992) (offense not eligible for shock probation; distinguished from Posey)
- Ivey v. State, 277 S.W.3d 43 (Tex. Crim. App. 2009) (defines community supervision as a continuum; context for eligibility)
- Speth v. State, 6 S.W.3d 530 (Tex. Crim. App. 1999) (statutory interpretation guiding treatment of supervision types)