Ex Parte Donaldson
86 S.W.3d 231
Tex. Crim. App.
2002
Check Treatment

*1 Paul’s statement at trial that has not he

“lied big things.” about

As a cannot conclude that denying abused discretion in

Lopez’s request to admit the as a evidence

prior inconsistent statement. Court Appeals in concluding erred otherwise. reverse the of the Court

Appeals affirm the trial court’s convic-

tion.

HERVEY, J., participate. did not parte Jimmy DONALDSON, Lee

Applicant.

No. Texas, Appeals

Court of Criminal

En Banc. 2, 2002.

Oct. Williamson, Amarillo, for appel-

L. Van lant. Roach, DA, Pampa,

Richard J. for state. *2 232 jurisdiction trial

PER law confers on the court CURIAM. probationary peri- a whose over defendant applicant pleaded guilty charge The a process has no expired od with revocation child, indecency a and of with the trial pending. placed years’ probation him court on six on 10, applicant May 1993. Because the of Article Code Criminal Procedure new charges,

incurred federal the State 21(b) probation 42.12, a motion his in provides any filed to revoke that “at section dismiss 1996. The moved to the community su period time the of 1998, April, motion to revoke pervision may a warrant judge the issue the applicant because had served time the any for violation of of the conditions prison federal crimes” for “related the de supervision cause community longer prosecute. State no wished to The face, fendant to be arrested.” On its granted trial court the State’s motion to au implies that the trial court’s statute 10, April 14, dismiss on 1999. On May thority probationer’s a communi revoke 1999, applicant’s probationary period supervision probationary ty ends when the expired with pending. no motion to revoke period expires. later, days Two trial court entered Vacating an “Order Prior Order of Dis- that, have held under certain We missal,” reinstating purportedly the initial circumstances, may the trial court revoke probation. motion to On revoke Novem- probation period expires. These after 1999, 12, court held hearing ber the trial a a which holdings address situation and, finding applicant that the had violated probationer revocation is arrested and the probation, his the terms conditions of probationary held outside the hearing is his him revoked sentenced trial period. long have held that a years’ to six confinement the Texas a motion to jurisdiction court hear has Justice, Department of Criminal Institu- revoke in as the this situation as tional Division. filed, capias a or motion was and warrant applicant application filed an for issued, during probationary properly corpus alleging writ habeas period.3 allowing jurisdic The reason trial court had no revoke his hold otherwise tion to continue is us, probation.1 from trial On remand would an who is able reward absconder cited Rule of Civil Procedure period probationary elude until his capture 329b(d)2 “plenary pow- of its the source however, expires.4 may, probationer continue er” to to exercise over diligence raise the lack of due State’s applicant probationary period his a his arrest as executing the warrant for application and set the expired. We filed plea his any rule or to the motion to revoke to decide whether this other bar 6, thirty judg- applicant’s parole May days ended within after the 1. The by signed.” but he to be ment continues "confined” consequences felony the collateral con- 11.07, State, (Tex.Cr. viction. See Tex.Code Crim. Proc. art. 184 Prior v. 795 S.W.2d 3(c). State, § 808 App.1990); S.W.2d Stover Fennell, (Tex.Cr.App.1963); 162 Tex. (1955). court, 329b(d) 284 S.W.2d 727 that "the Crim. 2. Rule states trial regardless appeal of whether an has been State, (Tex. perfected, plenary power to a new Peacock correct, Prior, vacate, modify, at 183. Cr.App.2002); or to reform S.W.2d or probation.5 diligence any upon That the State’s due the trial court law confers power to this order. is an issue issue which must be raised hearing at revocation illus- probationer applicant’s probationary period jurisdictional require- trates that it not a pired motion to revoke. pending without ment. Fulce, any taken Under action after that *3 jurisdiction. was Both the trial without applicant

The does not that allege purporting order to reinstate the court’s diligence State failed to exercise due probation, to motion revoke and the trial him, apprehending but are in- these cases applicant’s revoking pro- court’s order they require- structive because articulate ' bation, were the proba- entered outside ments for a trial court’s to period and thus made without tionary were probationary period continue after the jurisdiction. 1) pires: timely filing of a to re- motion 2) probation timely applicant voke and of a granted. issuance Relief is is dis- In capias. warrant or we from all “confinement” in charged Fulce6 this that, held absence cause. require- of these

ments, the trial court jurisdiction, has no KEASLER, J., concurring filed a all and actions taken after that the date KELLER, P.J., opinion in which and community supervision expires void. are HERVEY, J., joined. issued, The record shows that a capias KEASLER, J., concurring filed this executed, was during probationary and KELLER, P.J., opinion joined by however, period. applicant, ar- was HERVEY, J. again rested period after his probationary expired, and there was no capias new OPINION support this require- arrest. And was the join I but opinion sepa- Court’s write ment of a motion to revoke satis- elaborate rately to some the notion of Indeed, fied? State such mo- filed jurisdiction.” “plenary during probationary tion it period, but 329b(d) The trial court relied on Rule was dismissed at the State’s behest and the Rules Civil Procedure as the source there was no motion on file when power “plenary for its a new trial applicant’s period probationary expired. correct, vacate, modify, or to or reform the judgment days within thirty

nowWe consider whether the trial signed.”1 previously is haveWe post-probationary-period court’s order re 329b(e) recognized “inapplica- Rule instating the motion revoke effec was case,2 ble” in criminal and the same 329(b)(d) tive. Rule of Civil Procedure 329b(d). certainly should be true for Rule provides no basis for the trial issue this order do not because these rules recognized But we have also that trial apply power” criminal cases.7 find “plenary We cannot courts do have to alter Peacock, (stating procedure justice, county, 5. See 77 S.W.3d at 287-88 and dis- diligence that issue of of due be lack must trict of the State in all courts of Texas actions by appellant nature, raised before or revoca- exceptions may of a civil with such hearing preserve appel- tion it order added). (emphasis be hereinafter stated” review). late 329b(d). Civ. Pro. TexR. (Tex.Cr.App.1999). 6. 993 S.W.2d Godfrey, ex rel. 7. See Rule of Civil Procedure entitled State Cobb "Scope govern (Tex.Crim.App.1987). of Rules”: "These rules shall is, provid- limit question day orders.3 what does he within the time their acts power” encompass, by “plenary Appellate this how ed the Rules Procedure.8 case, last, that, apply it it Cobb and Awadelkariem make clear does does attempted that a judge the trial court to vacate to the extent where previous power proceeding, power order after over a dismissal Donald- already expired? Appellate the Rules of by son’s limited Proce- power Plenary dure and statute. does Bates, In for- acknowledged not none create where exists of Appellate mer Rules Procedure law; instead, phrase under the it is a used permitted a trial court “to “a court’s full and absolute describe judgments modify, correct or set aside subject matter and the power over trial, through orders motions for new mo- case,”9 *4 parties only in a which exists as judgment tions to arrest and motions for or defined statute rule. pro nunc judgment tunc.”4 We noted that case, particular in a In rule Rule 36 vested court “with this no statute or conferred any jurisdiction to authority the correct mistakes or errors on the trial court. The jurisdiction or the judgment expiration in a order after trial court’s over Donaldson power, of court’s via a entry the ceased once Donaldson’s pro pired.10 nunc judgment judge “ple- tunc.”5 substance could not create 21, nary jurisdiction” of those rules is located existed. As now Rules where none phrase jurisdiction 22 23. to Though “plenary judge lacked used, order, power” concept prior is no and Don- longer vacate dismissal aldson power the same: trial court some is entitled habeas relief. act in a case after entered. “plenary if a Finally, even trial court’s “plenary power,” But that under jurisdiction” could create Rules, exists for a limited time. give judge exists where none and could Cobb, In that rule in a case judge argued authority he could criminal expired, a motion new trial the defendant’s for outside least, jurisdiction would, 75-day provided very time limit Rules that at the In “plenary power.”6 of his re- be limited to the trial court’s term. because State,11 contention, jected explaining that a that the Williams v. we stated trial 31(e) power during if required former Rule a motion court has full over its orders they are new trial not ruled on within 75 the term of court which made was by operation modify during or them days, may it was overruled of law.7 correct State,13 In we Similarly, held Awadelkariem term.12 Cardwell judge may “freely that a rescind” its stated “that the trial court has orders, judgments, its decrees dur- ruling on a motion for new trial as as Bates, 306, (Tex. Dictionary (7th State v. S.W.2d abridged 3. 889 309 9. ed. Black’s Law 689 Crim.App.1994). 2000). Fulce, 660, S.W.2d 662 10. See Ex 993 Id. 4. 1999); (Tex.Crim.App. Art. 42.12. Id. 5. (1943). 11. 170 S.W.2d 145 Tex.Crim. Cobb, 48. 6. 739 S.W.2d at Williams, 170 S.W.2d at 486. 12. Id. at 48-49. Tex.Crim. 186 13. (Tex.Crim.App.1931). (Tex.Crim.App.1998). 8. 974 S.W.2d ing the term of court

orders, judgments, and decrees were en-

tered, power dispose with them

right justice suggest.” might trial power

So the court’s vacate

order, all, if it had the at power was re

quired be within exercised the same case, however,

“term of court.” In this attempt

court’s to vacate the or dismissal

der was not within the same term of court. April

The dismissal order was entered on stipu 1999. The Government Code

lates that the 31st Judicial District County,

Court of Wheeler a new term of Monday

court on begins the fourth then,

April.14 case, In this a new term of began April attempt

court’s to vacate its or dismissal

der occurred on May

new term of court begun. had As a

even if plenary power order, doubt, pow

enter this which I those expired

ers on April two half and a

weeks before the judge tried to vacate the

order. comments, I join

With these the Court’s

opinion.

Christopher HALL, Appellant, Texas, Appellee.

The STATE of

No. 03-01-00088-CR. Texas, of Appeals

Court

Austin.

July

Rehearing Sept. 12, Overruled 24.133(b)(5). §

14. Tex. Gov’t Code