*1 AUSTIN, parte Ex David Jr.
No. 69930. Texas, Appeals Court of Criminal En Banc. Feb. Dunbar, Dallas, appellant.
Colleen A. Wade, Henry Atty. Former Dist. McFarlane, Dallas, Atty., Leslie Asst. Dist. Huttash, Austin, Atty., Robert State’s the State.
OPINION ONION, Judge. Presiding post-conviction application
This is a corpus brought under the writ of habeas provisions of Article V.A.C.C.P. Applicant indicted on June attempted murder of “Richard Rea- for the deadly weapon.” handgun, a son with a 9, 1986, May applicant waived trial On guilty before the plea and entered a The court as- court to the indictment. punishment years’ at 10 confine- sessed the In Department of Corrections. ment made an affirma- judgment the court handgun, a finding as the use of a deadly weapon, during the commission reflects also the offense. “* PROBA- FOR SHOCK REVIEWED 1 The docket AFTER 120 DAYS TION entry. a similar sheet contains described alleges above
Applicant
part of a
as a
guilty was entered
agreement
the State
V.A.C.C.P.,
3e(a),
begins
provid-
1. See
execution of the sentence
expiration
probation.”
that after the
of 60
motion for "shock
consider a
from the date the
*2
the
approved by
court that he
be
guilty plea
was to
to whether a
under such circum
¶.
probation pursuant
State,
shock
Arti-
Bass
truly voluntary.
to
stance is
3e,
42.12,
cle
He further con-
V.A.C.C.P.
Rogers,
(Tex.Cr.App.1979);
applicant’s guilty plea was made
jurisdiction
grant
lost
to
shock
that
assurances
he
be
would
released
provided Article
after the 180
shock probation, and
in attempting
to
42.12, 3e, V.A.C.C.P. See Houlihan v.
plea bargain
fulfill this
it was discovered
State,
(Tex.Cr.App.1979);
579 S.W.2d
applicant
legally eligible
was not
parte Rogers, supra,
Ex
at 742. For this
since
plea
enti
reason alone the
would be
promise
was based on a
could
bargain
light
plea
tled to relief
fulfilled,
guilty plea
involuntary
regardless
had
of whether the trial court
and that the
is entitled to have
to
or not
authority
plea
his
withdrawn.
view
It is now
axiomatic that when
however,
Applicant,
does not
weapon.
plea
guilty
defendant enters a
or nolo
by the
plea bargain
claim
was broken
plea
bargain
contendere
plea
loss of
contends the
jurisdiction, but
agreement,
carry
the State is
bound
out
bargain
out because
was not carried
plea bargain
its
plea
side of the
or the
itself
prosecutor
decided that shock
and the court
involuntary.
DeRusse v.
579 S.W.
legally
granted in
probation could not
Rog
Ex parte
(Tex.Cr.App.1979);
2d 224
finding.
It is
light
the said affirmative
ers,
Ex
(Tex.Cr.App.1982);
629 S.W.2d
our attention.
this matter we turn
Garcia,
parte
581 (Tex.Cr.App.
Perkins,
1985);
parte
Ex
Legislature reorganized the
shall continue for 180
shall
to the
the date
satisfaction
the court
actually
justice
execution of the sentence
that the ends of
and the best inter-
begins.
expiration
After the
of 60
public
est of the
as well as the defendant
prior
to the
will be subserved thereby.”
from the date the execution of the sen-
Section 3c of the statute under the 1985
begins,
actually
judge
tence
version reads:
imposed
may
court that
such sentence
Nothing
“Sec. 3c.
herein shall limit
his own motion or on written motion of
grant probation
of the court to
defendant, suspend
further execution
regardless
of sentence
of the recommen-
imposed
of the sentence
dation of the
or the
conviction
defendant on
under the terms
of the defendant.”
article,
and conditions of this
if in the
the defendant would
provisions
of Sections 3 and 3c are
not benefit from further incarceration in
by
provisions
limited
of Section
penitentiary.
may
Probation
found
the 1985 amendment which reads:
granted
this section
if:
(a)
3g.
“Sec.
Sec-
“(1) the
eligi-
is otherwise
defendant
tions 3 and 3c
this Article do not
article;
ble
probation under
for
apply:
“(1) to
adjudged guilty
a defendant
“(2) the defendant had never before
by
following
an offense defined
sec-
in penitentiary
been incarcerated
serv-
tions of the Penal Code:
felony;
a sentence for a
murder);
“(A)
(Capital
Section 19.03
“(3) the offense for which the defend-
“(B)
(Aggravated kidnap-
Section 20.04
ant was convicted was other than those
ping);
19.02, 20.04, 22.021,
defined
Section
“(C)
(Aggravated
22.03, 22.04(a)(1),(2),
(3), 29.03, 36.02,
Section 22.021
sexu-
or
assault);
felony
71.02 or a
of the second
al
degree under Section
Penal Code.”
“(D)
(Aggravated
29.03
rob-
(Emphasis supplied.)
bery); or
as amended
“(2) to
when it is shown
a defendant
reorganization
of the statute reads:
used or exhibited a
that the defendant
“Sec. 2. This Article
be cited as
weapon as
in Section
defined
the ‘Adult Probation Law’.
Code,
1.07(a)(ll),
during the com-
Penal
“Unless the
during
context otherwise re-
or
mission
offense
quires,
ap-
Upon
definitions shall
af-
immediate
therefrom.
ply
specified
phrases
words
used
finding that the defendant
firmative
used in
this Article:
weapon
or exhibited a
* * *
during im-
“a.
of an offense
commission
therefrom, the trial court
mediate
“b.
shall mean the release
‘Probation’
finding
judgment
enter the
shall
of a
convicted defendant
a court un-
finding
Upon an affirmative
der
the court.
imposed by
conditions
the court for a
deadly weapon the defendant
specified period during
imposi-
which the
firearm,
tion of
or exhibited was
suspended....”
sentence is
used
judg-
shall enter that
provision
that shock
could
(Emphasis supplied.)
ment.”
granted
“if such sentence is otherwise
eligible
under this article”
It is thus clear under
reorgani-
the 1985
changed
provide
proba-
that shock
zation of Article
supra, in effect at
tion
(1)
could be
“only if:
applicant’s plea
the time of
before
fendant is
otherwise
the court in
entry
of an
article,”
under this
prohibition
affirmative
against granting
“shock
in cases
was not
homicide,
rape,
criminal
robbery”
“regular” probation
by the trial court
extended to a whole list of
desig-
offenses
and the
“power”
trial court was without
nated
section numbers in the Penal
the same. If
eligi-
was not
Code, 3e(a)(3).
“regular” probation
ble for
because of the
finding,
3g(a),
see
Section 5 of the said S.B.
provid-
123 also
then he was not
for shock
ed: “A
eligibility
defendant’s
for shock
*4
3e(a),
tion under
supra,
probation
governed
is
by
because he could
this Act if the
§
granted
probation
judgment
be
shock
only if he
of conviction
was
is entered on or
after
the effective
date of this
this
Act. The
eligibility
article.”
for shock
of a defend-
ant
judgment
as to whom a
of conviction
The trial court was correct in concluding
was entered before the effective date of
that
the 1986
could not be
governed
this
by
Act is
in
law existence
out,
carried
applicant
and that
was entitled
date,
before the effective
and that law is
to the
sought.
relief he
in
continued
effect for
purpose
this
as if
concurring
opinion concludes that
this law were
nob
force.”
the trial
court could have
shock
In 1983
rape
the former offenses of
and
probation despite the
of
aggravated rape became sexual assault and
a deadly weapon.
Clinton,
Judge
in his
aggravated sexual assault
respectively.
opinion, takes the reader back to 1977 and
(Acts 1983,
R.S.,
Leg.,
977,
68th
chap.
p.
Legislature
the 65th
when the
(H.B. 2008).)
5311
Section 9 of said H.B.
(S.B.
695)
law
was enacted
3e(a)(3)
2008 amended
of Article
§
as
3e of
existed,
Article 42.12 as it then
§
supra,
to add the offense defined in
provisions
when the
of what is now
22.021 of the Penal Code to those of-
§
3g(a) was enacted as
3f
of the then
fenses for
pro-
which shock
was
existing
(S.B. 152).
Adult Probation Law
(replacing
hibited
former
21.03 and 21.-
§§
These bills
generally
coursed
independent
05).
through
of each
legislative
other
As amended in 1981 and 1983
was
Regardless
cess.
agrees
whether one
brought
complete reorgani-
forward in the
Judge
Clinton or not about the con-
(Article
zation of the Adult Probation Law
placed
struction to be
upon the 1977 enact-
42.12, supra)
agree
in 1985. We cannot
ments, it is observed that in 1981 the shock
Legislature
that it
was the intent of the
probation provision
42.12, supra,
of Article
reorganization
of Article
was completely
(c)
rewritten and subsection
permit
probation by
de-
the court
(Acts 1981,
69,
was
Leg.,
added
67th
p.
ch.
spite
an affirmative
1,
Sept.
1981).
Judge
effective
As
weapon
judgment
in the
whereas the same
notes,
Clinton
analysis accompany-
the bill
grant-
would foreclose the trial court from
(67th Leg.)
Bill
plainly
Senate
ing “regular” probation.
proposed
states that the bill
to restrict the
categories of
prayed
applicant
defendants who would
eli-
The relief
gible
probation.
granted.
for shock
This is clear
and sentence
compared
the 1981 version is
Dis-
to the Cause No. F-8587181-KH Criminal
3e(a).
alia,
County
version of
set
Inter
the time
trict Court No. 1 of Dallas
aside,
that
the trial court
jurisdiction
applicant
retained
is ordered released
days,
custody
increased from 120 to
of Dallas
to the
the Sheriff
that,
parties agree
in said
All
County to answer the indictment
at the
appli-
time
guilty plea,
cant entered his
copy
A
will
fur-
cause.
assistant
attorney assigned
case,
district
to the
de-
Department
nished the Texas
of Correc-
counsel, applicant
fense
and the trial court
tions
the Clerk of this Court.
impression
applicant
were under the
so ordered.
It is
could receive shock
per
plea agreement.
point
At some later
CLINTON, Judge, concurring.
record,
parties
apparent-
revealed
all
ly
concluded that
could not in fact
post
application for
This is a
conviction
opera-
receive shock
due to the
corpus brought
to this Court
writ
habeas
3g(a)(2)
42.12, supra,
tion of
of Article
provisions
42.12, supra. Appli-
3 and 3c of Article
V.A.C.C.P.
alleges
plea
cant now
that the terms of his
Applicant
attempted
indicted for
out,
bargain
plea
cannot be carried
that his
murder,
proscribed by
Penal
V.T.C.A.
involuntary
is thus
he
Code,
15.01(a), on June
1985. The
plea.
should be allowed to withdraw that
indictment, omitting
portions,
the formal
York,
Applicant cites Santobello v. New
attempted
alleged
to '‘cause
92 S.Ct.
prisonment. other than those defined convicted was *6 19.02, 20.04, 22.021, 22.03,22.04(a)(1), provides nothing Section 3c contained in Section (2), 42.12, 38.07, 71.02, power (3), limits the of the trial or or a grant probation regard- court to of the sentence felony degree of the second under Section jury less of the recommendation of the or of 38.10, Penal Code." any prior conviction of the defendant. 3g(a) provides Section as follows: 3e(a) provides Section as follows: "(a) provisions of Sections and 3c of "(a) section, purposes For the of this apply: this Article do not jurisdiction of a court in which a sentence (1) adjudged a defendant of an requiring Depart- confinement Texas by offense defined sections imposed ment of Corrections is for conviction Code: Penal (of felony) days a shall continue for 180 from murder); (A) (Capital Section 19.03 actually the date the execution of the sentence (B) (Aggravated kidnapping); Section 20.04 begins. expiration After the of 60 but (C) (Aggravated 22.021 sexual as- Section sault); actually date the execution of the sentence (D) (Aggravated robbery); Section 29.03 or begins, judge imposed of the court that (2) when it is shown that the to defendant may such sentence on his own motion or on deadly weapon used or exhibited a defendant defendant, suspend written motion of the fur- Code, 1.07(a)(ll), as defined in Section Penal imposed ther execution of the and sentence felony offense or the commission place probation under the defendant on Upon flight therefrom. affirma- in immediate article, terms and conditions of if in the this the defendant used or exhib- opinion judge the defendant would weapon during the commission ited a peni- benefit from in a further incarceration during immediate of an offense or therefrom, tentiary. may Probation under find- trial court shall enter the this section if: Upon of the court. in the (1) the defendant is otherwise finding that the article; probation under and this (2) was a fire- defendant used or exhibited the arm, before been defendant had never finding in its enter that serving the court shall penitentiary incarcerated in a sen- judgment." felony; tence for a
(Tex.Cr.App.1986).2 Judge There Tom scribed for the offense for which he was “probation” Davis indicated that convicted, is a term regard without to the term of having meaning more than one and more Thus, punishment assessed. may the court restrictions, one depending than set power provided not exercise the by 3§§ authorizing imposition. the statute its 3g(a) implicated. and 3c when § at 634. Article supra, provides Id. 3g(a) complete Section is not a ban on the the statutory mechanisms which a trial grant of a trial court probation; it judge grant may “regular” pro- or “initial” purport does not application to bar of 3d§ 3c, adjudication bation in 3 and deferred (deferred (shock adjudication) or 3e§ 3d, “unadjudicated probation” or § bation), being the latter our concern here. probation (felony) “shock” in 3e and 3f § § (misdemeanor). 42.12, supra, Id. Article suspension imposition Unlike a of sen provision jury also makes for the contemplates tence 3e under Section 3g(b) Finally, 3a. of Arti- imposition conviction and sentence 42.12, supra, judge cle allows the trial court, trial followed incarceration of de sentence a defendant who has been convict- actually fendant in TDC to serve the sen degree ed of a of the second State, imposed. tence See O’Hara v. higher period penitentiary to a brief in the (Tex.Cr.App.1981), at jury where has recommended Tamez v. 620 S.W.2d n. (which recommendation would otherwise be (Tex.Cr.App.1981). Jurisdiction of the 3a) binding judge on the trial under trial court defendant continues for 180 over has also made an affirmative find- “if days. days, After the first 60 ing as to use or exhibition of a the defendant would weapon during the commission or in a not benefit from further incarceration from the commission of the offense. convicting may ex penitentiary,” understanding probation- The crux of to “sus continuing jurisdiction ercise its ary scheme set forth in Article su- im pend the sentence further execution of pra, Judge lies in Davis’ statement that “all posed defendant on forms of discussed above [these] this arti conditions of under the terms and other, independent are each the sense course, provided, he is otherwise cle”— eligible that a defendant under the disqualified is not forms, statute for one or two but not [an- 3e; (3). 3e(a)(2) Ta under State, supra, at 634. West v. other].” State, supra. mez v. Naturally, some care must be exercised in reading these various sections to arrive at That defendant be understanding article,” 3e(a)(l), correct whole. According- ambiguity. entirely free of Facially by express terms bars *7 of examination ly, I turn a detailed now to application only. 3c The latter and §§ underlying intent legislative history and grant deal with of a trial court to 42.12, 3e(a) supra. 3g(a) Article probation eligible §§ to an defendant “when it 311.023(3). Ann. Tex. Gov’t Code appear shall to the satisfaction of the court justice that the ends of and the best inter- public ests of the defendant as well as BILL 695 SENATE thereby,” “regardless of will be subserved supra, was Article prior the recommendation of the Regular Ses- originally introduced conviction of the defendant.” The mecha- Bill Senate Legislature sion of the 65th suspend imposition nism 3 is “to February on Schwartz Senator place proba- on sentence and the defendant my discus- to significant portion 1977. The period
tion” for a of not more than ten years pre- minimum sion read as follows: nor less than the J., dissenting). (Clinton, my supra at 635 2. I adhere to the set forth in dissent- views ing opinion See West v. in that case. expiration days After the of 60 but fendant on “... under the terms article, from expiration to the of 120 and conditions of this prior such if date the execution of the sentence sentence is otherwise for begins, actually judge of the court tion under this article and sentence, imposed may, such on his sentence execution such the defend- own motion or written motion of the ant had never been incarcerated in a defendant, suspend serving penitentiary further execution of a sentence for a fel- imposed ony opinion judge the sentence and in the fendant on under the terms defendant would not benefit from fur- article, penitentiary. and conditions of this ther incarceration in a Pro- such if years sentence did not exceed 10 bation under this section sentence, execution if offense for the defend- prior to the of such which the defendant had never been incarcerat- ant was sentenced was an offense other homicide, penitentiary serving rape, ed a sentence than criminal or rob- opinion bery.” for a and in the
judge the defendant would not benefit specified As amended the statute three of- further peniten- incarceration in a judge fenses for the trial which could not tiary.” “if substituted originally clearly The bill as drafted such evi- sentence otherwise dences language an intent to create a new bation for the version article” play to “if was come into af- bill such sentence did not begun serving por- years.” key disposition ter the defendant had exceed 10 precise interpretation tion his or her sentence. This new of this cause phrase have three conditions precedent; specifically, that the sentence under this article.” imposed years, have been less than ten At the time this bill was introduced and previously the defendant not have in- been legislature, discussed felony, judge carcerated for a and that the any provisions supra, did not contain num- be of the defendant would (and than is now bered later what profit from further incarceration. In- then) 3d. of those sections Examination deed, analysis accompanying the bill Senate of Article which were ef- legislation Bill 695 states that this proposes precursor present 3e fect when the “provide continuing jurisdiction by suggests strongly was under discussion purpose trial court for allowing pro- provided sole refer- that those sections actually bation after a defendant has be- point legislators referred ence to which gun serving a sentence after drafting language in issue. now guilt.” bill, original language of the The bill was amended in the House on years, exceed ten coincides sentence not 11, 1977, May and the Senate concurred in of confine- the maximum allowed term May finally those amendments on As 3a, forth in 3 and Article ment set approved by legislature signed into respectively govern “initial” supra, which law, what would be provid- codified as 3e “regular” probation from the trial part ed in as follows: Additionally, provi- jury. and from the may not receive After the a defendant
"... sion that *8 previ- he or she has from shock when closely a ously the date incarcerated for the execution of the sentence been actually begins, parallels provision of 3a of the court unless imposed may, may on his not recommend such sentence motion to the of the has filed a sworn own motion or on motion defendant written previously defendant, he or she has suspend execution effect that further parallels These felony. of a convicted imposed the sentence been emphasis 3. All indicated. otherwise mine unless
strongly suggest revising that in the stat- ference report Committee summarizes the provide portions to relevant ute of Senate version article,” legislature bill as bation under this follows: thinking exclusively was in terms of those “Section provides 3e is new and already appearing limitations 3 and judicial jury probation does not 3c. apply person adjudged guilty when a
of: Murder SENATE BILL 152 Aggravated kidnapping originally Section introduced Rape 3e Senator Meier in Senate Bill during regular Aggravated rape number 152 session of legislature January the 65th Sexual abuse Senate, originally As introduced Aggravated sexual abuse read as bill follows: Robbery “Section 3e. The of Sec- Aggravated robbery 3, 3a, 3c, tions of this Article do 3d deadly weap- or when it is shown that a apply: on, firearm, except during was used (a) adjudged guilty to a defendant the commission of an offense or immedi- an offense defined sec- ate therefrom. There must an tions of the Penal Code: of the use or exhibi- (1) (Murder); Section 19.02 deadly weapon tion of the and it shall be n (2) (Aggravated kidnap- Section 20.04 judgment. entered in the court’s ping); probation by the defendant receive
(3) (Rape); imposition extraordinary judicial pro- 21.02 Section extraordinary jury probation. bation or (4) (Aggravated rape); Section 21.03 used or exhibited a (5) (Sexual abuse); Section 21.04 If defendant during the commission (6) (Aggravated Section 21.05 sexual firearm during or immediate abuse); offense therefrom, the is not defendant (7) (Robbery); 29.02 jury probation, judge probation, ex- (8) (Aggravated Section 29.03 rob- traordinary judicial probation or ex- bery); or traordinary jury probation.” (b) when it is shown that the defend- report That same Committee Conference deadly weapon ant used or exhibited portions of the pertinent summarized the during the commission of an offense House as follows: version bill flight after the com- immediate provides that “Section 3e is new and mission of the offense.” judicial probation does not ordinary seems originally Thus conceived the bill apply person adjudged when a designed preclude been to have of: to a de- any type award of Capital Murder has been an affirma- fendant when there Aggravated kidnapping use or as to the exhibition Aggravated rape However, deadly weapon. amendments passage, Aggravated sexual abuse prior to its as well as its the bill subsequent legislature, treatment Aggravated robbery original design. unquestionably altered this it is shown that during the commis- adopted used or exhibited The House several amendments felony offense or immediate sion of a many Senate Bill of which the Sen- must be an af- Thus, flight therefrom. There unwilling accept. ate was a con- finding of the use or exhibition firmative ference committee was selected to arrive deadly weapon and it shall be It is compromise version of the bill. *9 judgment.” in the court’s entered particularly important to note that the Con-
235 deadly 3g(a) being tion as weapon among or when it shown that a of those sec- § during or the tions of Article are was used exhibited commis- which applicable finding felony sion of a or immediate affirmative has offense made, legislators been the flight had intended to therefrom. There must be an af- foreclose finding of or an award shock in firmative the use exhibition such circumstances. weapon it the shall be judgment. entered in the court’s The I conclude that this was not intent of the probation by receive defendant legislators the Bill who revised Senate imposition or the extraordi- eventually 3g(a). which would become § probation. nary judicial My in part conclusion is based on the Con- If the defendant used or a fire- exhibited “ordinary ference Committee’s reference to during felony arm the of a commission judicial in probation” report, the committee higher, the degree offense of second or obviously a term which the committee un- therefrom, or immediate proba- derstood to be different from “shock jury probation, is not tion,” fendant literally in the which was mentioned judicial probation extraordinary judi- or next report. column of that committee probation. An cial Furthermore, both Senate Bill 695 and the use or exhibition firearm must Senate Bill eligibility 152 restricted judg- be made and entered in court’s the respective their forms of to those ment.” murder, convicted of offenses other than The Conference ultimately Committee rape robbery. If one reads “otherwise adopted House version of Section 1 of (now in Senate Bill 695 ...” bill, 3g would which become of Arti- 3e(a)(l)) § provisions to to refer Sen- § 42.12, supra. enacted, then, cle As what (now 3g(a)(l)), ate Bill prohibition appears originally to have been intended as against awarding to one all homicide, limitation extant forms of rape, convicted of “criminal tion, by express only terms limited (now 3e(a)(3)) robbery” in Bill 695 Senate judge grant probation redundant, to un- proscrip- would be the same der the 3 and 3c. Bill already tion is contained Senate §§ (§ 3g(a)(l)), presume legisla- We only notation of interest that Com- give every ture word intended to effect to report mittee was that the Conference respective statutes. most obvi- Committee version was “identical way provi- ous to effectuate each of these House with the excep- version interpret sions Bill 695 is to Senate tions: Section 3e is renumbered to 3f be- (§ 3e(a)(l)) refer limita- to those (shock cause of SB 695 probation), which viz., already tions those extant passed Representa- has both House of su- found 3 and 3a of Article §§ Thus, tives and Senate and used 3e.” pra. revising Senate Bill 152 the Conference clearly Committee was of the exist- aware 3g(a) pre- Obviously was intended to ence of Bill Senate was intro- granting “initial” vent the trial duced after Senate Bill 152 but which “regular” §§ signed by governor May would be 3c, convicted the offenses those 30, while Bill would not 3g Senate whom enumerated in and to those signed specifically until June both to be effective 90 trier of have used fact found to adjournment. weapon after The members of or exhibited a certainly or in immediate Conference Committee had commission of 3g(a) should opportunity to include shock therefrom. against award of prohibition read sentencing as a options one of the foreclosed so to one situated. an affirmative use or deadly weapon, they exhibition of a had SUBSEQUENT AMENDMENTS Indeed, chosen so. it would have to do the Texas required sessions of Apparently minimal effort to have listed 3e three Ias along opening por- Legislature read 3e and and 3c in have §§ *10 now, do for these sections have been and intentionally did not legislate a redun separate dancy amended on three in amending 3e(a). occasions in Heckert v. § State, are not to be suggesting they 549, manner 552 (Tex.Cr.App. 1981); parte Santellana, Ex majority suggests. read as the tacitly 606 S.W.2d 331, (Tex.Cr.App.1980); Morter v. Specifically, 123, Senate Bill authored 715, 551 S.W.2d 718 (Tex.Cr.App. Senator Brooks and Reg- introduced 1977). Thus, even if language legislature ular Session of the 67th on Jan- 3e(a) versions of 3g(a) and §§ 12, 1981, uary 3e(a) amended to restrict § might lend itself to the interpretation I now scope applicability pro- of shock reject, I would conclude that this subse analysis bation. The bill accompanying quent 3e(a) amendment clearly indi § “(t)he Bill plainly Senate states that bill legislature cates that the did not intend for proposes categories to restrict of de- 3g(a) granting to control the of shock § fendants who would be for shock 3e(a). under § probation.” amendments, as enacted 3e(a) 3g(a) Sections again and were 69, in Chapter Legislature, Regular 67th subject legislative scrutiny 1983, Session, 154, page pertinent part read in rape aggrava- the old offenses of and follows: rape changed ted were to sexual assault may “Probation be under this aggravated and sexual respectively. assault only section if: 2008, House Bill Representa- introduced (1) the defendant is otherwise Danberg, 977, Chapter which became article; under this and 1983, legislature, Regular Acts of 68th Ses- (2) the defendant had never before sion, updated relevant sections of both penitentiary been incarcerated in a serv- Indeed, 977, 3g. Chapter 3e and 9 of §§ § ing a felony; sentence for a and Code, supra, adds V.T.C.A. Penal 22.021 § (3) the offense which the defend- to the list of offenses enumerated in ant was convicted was other than those 3e(a), Chapter and 10 of 977 adds the § § 19.02, 20.04, defined provision 3g(a). legis- same Thus the § 21.05, 22.03, 22.04(a)(1),(2), (3), 29.03, simultaneously lature has examined and 36.02 71.02 or a of the sec- 3e(a) 3g(a), subsequent amended §§ degree ond under Section Penal apparently passage, time their Code.” concluded that “otherwise 3e(a) does bation under this article” § Note that several of the offenses listed contained not embrace the restrictions already amendment to 3e are con § 3g(a). § tained in the list offenses set forth in 3g(a), supra. aggravated Specifically, legislature, Finally, § 69th Acts of (§ 20.04), kidnapping aggravated rape Session, page Regular Chapter § (§ 21.03), aggravated (§ sexual abuse 21.- all of Article amended and recodified 05), 29.03) changed desig- aggravated robbery (§ supra. all This act 3f to the cur- appear in the nation for what was then list offenses for which § legislature left 3g. again rent Once granted, § 3e(a) substantively un- 3g(a) well as in list §§ of offenses to which the changed, evincing a clear under- thus apply 3 and 3c do not legislators that standing part on the through operation 3g(a). The addition separate and distinct these sections served already three of the offenses listed in functions. 3g(a) preclude to the offenses which award of shock as set out in the legislature Thus three sessions 3e(a), certainly amendments to would 3g(a) since have examined §§ legislature if redundant act intended appar- enactment, three have and all their 3g(a) availability limit the of shock prohibitions set ently concluded 3e(a). ability Our courts will apply forth in “regular” generally presume legislature in “initial” a trial 3c, and not effective, tended 3 and probation pursuant that the entire statute be to §§ *11 ability of the assess shock 3e(a). to § HERNANDEZ, Leyva Appellant, Hector v. CONCLUSION Texas, Appellee. The STATE of misinterpretation The trial court’s 3g(a), supra, prevented that court from 1177-83. No. honoring plea agreement the terms of the Appeals Texas, Court of Criminal applicant’s in effect in case. I believe that En Banc. the trial court did the authority have March award after he Depart- had served 120 in the Texas Corrections, per
ment of the terms of original Indeed, plea agreement. done, is what the trial should have did not the parties’ because of mutual misapprehension of statute which arose point some applicant’s plea time after guilty. court, Contrary to the habeas Court, the majority in this I do not
characterize this as case in which the parties plea bargain entered into a which Rather,
could not later be fulfilled. I would characterize as a case in parties plea bargain entered a valid into
agreement which was later breached court, good trial albeit in faith reliance on understanding statutory scheme. Where there is a broken agreement, appropriate remedy spe performance
cific terms of agreement plea, or withdrawal of the depending upon the circumstances of the Burton, parte particular case. Ex Joiner (Tex.Cr.App.1981); S.W.2d State, v. 741 (Tex.Cr.App. 1979). Here, language 3e(a), the clear of § 42.12, supra, divests the trial court jurisdiction af ter the from the actually date the execution sentence begins. Houlihan v. 579 S.W.2Ü (Tex.Cr.App.1979)(interpreting 219-20 an earlier version of which con limit). day appropri a 120 time tained remedy is to to with ate allow his and return him to draw the trial court to answer indictment. I Thus concur the Court. Paso, Jr., appel- El Dolph Quijano,
lant. Simmons, Atty. Dist. and David
Steve W. Paso, Cowan, Atty., El Clay Asst. Dist. Huttash, Atty. and Cathleen State’s Robert