*1 is is therefore against the defendant never a collateral ed substantial or is harmful error. inquiry, irrelevant the defendant restrictions, entitled, subject to reasonable appeals is judgment of the court to fact that tend any might show relevant reversed, and the is cause remanded bias, motive, feeling, to establish ill inter trial court a new trial. est, part any or animus on witness testifying against him. London v. (Tex.Crim.App.1987); S.W.2d 613(b).
Texas Rule of Evidence It was alleged
immaterial this case that
false threats occurred before J.B. accused after;
appellant periods may both bias, motive, used to J.B.’s or ill evaluate Appellant IVEY, Mark William feelings appellant, thereby, towards credibility. his Texas Rule of Evidenoe 613(b). The court abused its discre of Texas. STATE by denying appellant tion opportunity J.B. cross-examine about the threats No. PD-0552-08. Klines, against appel preventing thus Appeals of Criminal Texas. Court lant presenting admissible evidence— testimony the rebutting of the Klines—to Feb. possible accusing show J.B.’s motive for appellant of sexual molestation. non-constitutional,
This error so analyze
we harm under Rule of Appellate 44.2(b): error, “Any
Procedure other de
fect, irregularity, or variance that does
affect rights substantial must be disre
garded.” Appellant was Rule entitled
613(b) to cross-examine J.B. about
false against threats he had made
Klines, in order to J.B.’s show motive
testify and to untruthfully present
jury J.B.’s denials. Once J.B. had denied threats,
making was entitled present testimony Klines’ rebutting
about to falsely J.B.’s threats them accuse molestation, enabling thus testimony
use the of all three witnesses
weighing credibility. appel J.B.’s Because so,
lant permitted was not do he was any
unable present evidence of J.B.’s
purported to fabricate allegations motive
of sexual molestation. We find that
inability fully present defense affect- *2 Austin, Reposa, Appellant.
Adam for Horton, County Atty., Gisell Assistant Horn, Austin, Jeffrey Atty., L. Van State’s for State.
OPINION PRICE, J., of opinion delivered the WOMACK, MEYERS, Court in which HERVEY, JOHNSON, KEASLER JJ., joined. called in this case to
We are decide Article 42.12 whether of the Texas Code of upon a Criminal Procedure confers defen- being placed dant to avoid on com- that a munity supervision.1 We hold an may place eligible court on if the defen- even punishment dant elected to have his has jury jury and the does not assessed Accordingly, it. affirm we will judgment appeals. of court AND FACTS PROCEDURAL POSTURE by a convicted driving the misdemeanor offense of while Having go intoxicated.2 elected to deliberately he for punishment,3 filing went sworn motion with that he before been declaring had never felony in this or any of a offense convicted state, rendering ineligi other thus himself he ble recommendation that for a placed community supervision under Section 4.'4The days’ incar thirty-five county fine. jail ceration in the and $2000 conferring informally After record, however, trial judge off that, open court announced 4(d)(3) § 42.12. Crim. Proc art. Tex.Code Proc. art. 4. Tex.Code Crim. (e) 49.04(a) (b). Penal 2. Tex. Code 2(b). 3. Tex.Code Crim. Proc. Proce- recommendation, 3,§ of the Code Criminal she
absence appel dure,7 entity, judge imposition regardless would sentence, place jus- him on lant’s One jury, assessed the *3 period years, for a of two granted appellant’s the tice dissented. We suspend all but of the fine. The trial $500 discretionary in order petition for review alia, imposed, thirty-day inter judge also a trial question of whether to address jail requirement appel term and a that the jury-assessed punish- suspend court can complete lant 60 hours of ser community supervision ment and order community superv vice as conditions of could not recom- itself have when ision.5 community supervision.8 mended that, appeal, appellant argued
On he go because had elected to to THE STATUTE punishment, for assessment of the trial judge a trial has Under judge authority suspend any lacked to sen- suspend the im- fairly broad discretion tence that assessed. The trial position he deems it to of sentence when in him on judge’s placing unilateral action justice, “in interest of the best community supervision, argued, he de- public, the defendant” to do so.9 That him prived statutory right of his to a unfettered, is not of course. discretion punishment. majority assessment of A judge may For the trial not sus- example, appeals panel disagreed,6 the court of pend imprisonment a sentence of that ex- holding judge had the au- thority years.10 may ten a trial suspend imposition pun- ceeds Nor particularly ishment virtue of Article a sentence for certain tence, Immediately reading jury's punish- prospect 5. after his dissatisfaction with the court, open being community supervision verdict in placed ment on is recess, record, during called a amply spread she met with on the and the trial recess, jurors. Following she made court well aware of it. There is no issue following pronouncement open court: procedural default before us. n n n THE COURT: has come Ivey (Tex.App.- back with the of incarceration in 2007). Austin $2,000 County jail days the Travis of 35 and a powers judges fine. Under the that exist for 42.12, § 7. Tex.Code Crim. Proc. art. Procedure, going the Code of Criminal I am appellant] probation. to instead [the (e). 66.3(b) and We mistak- Tex.R.App. Proc. speaking jury, After with the it is their in- enly granted only appellant's not first tent that he receive some services in the com- (which intended), ground pre- for review we munity, appropriate and I think that that’s senting question, this but also his second and public protecting the commu- interest (which grounds third we had not intended to nity, appellant] receive some coun- [the grant). disposition appel- Because our of the seling and is evaluated to make sure ground essentially for review ren- lant's first problems may prohibit there is no other moot, ders the other two and because we had moving point. him from forward at this grant never intended to them in the first Therefore, going probate jury’s I am improvidently granted place, we declare them years, going for two and I am now, apologies parties putting with to the for $1,500 fine, serve, probate and he shall briefing them. Tex. them to the trouble probation, days jail as a condition of 69.3. R.App. service, Proc. igni- and 60 hours of pro- tion interlock for one-half of the term of 42.12, 3(a). 9. Tex.Code Crim. Proc. bation, begin jail. when he exits the immediately Although appellant did Id., (e)(1). object suspension thereafter to the of his sen- case, crimes,11 In the the defendant elect- involving heinous or for felonies instant deadly weapon.12 the use or exhibition of a for Then go ed to appel- as the misdemeanor cases such he made a deliberate decision not to file a lant’s, “[eligibility regular misdemean- seeking community supervi- sworn motion from the trial specifically he did not sion because want refreshingly simple is defen- —all option to recommend have of- charged any dants [misdemeanor] it. The question whether was within only eligible.”13 fense are limitation authority the trial court’s him on judge may is that the trial not set a term community supervision anyway. For the *4 community supervision that exceeds two reasons, following we hold that it was. years.14 imposi- A trial judge must ANALYSIS tion of a sentence of confinement under jury circumstances which a is authorized arguments appellant makes several to, fact, it.15 A and does recommend to hold that why appeals the court of erred jury may community supervi- on judge place the trial could him commu- for of the heinous offenses sion even some though nity supervision even not,16 may judge regardless that a trial and First, assessed his did not. he weapon in- deadly of whether a the trial to do argues that to allow But there are limitations volved.17 several to elect the statutory right so violated upon jury’s authority to recommend Second, he to assess his First, community supervision.18 as with legislative argues language jury may not recom- judge, trial lead us to history of Article 42.12 should community supervision felony mend in a prefer prohibit a construction that would imposed long- case it has a sentence when circumventing the trial Second, years.19 er than ten whereas the him on com- jury’s prerogative not judge may place eligible trial an otherwise munity supervision. disagree on both We community supervision defendant on counts. conviction, prior felony if he has a
may community supervi- not recommend timely files a sion unless Statutory Right to alleging motion that he has never sworn Jury Punishment felony been convicted of a offense and first ar reject appellant’s We express finding makes an that his essentially the same reason allegation gument is true.20 (2007- Id., § 3g(a)(l). § 39.32 11. nal Practice Procedure Supp.), at 4-5. Id., 3g(a)(2). § 12. Dawson, George E. Dix Robert O. 43A 17. & Dawson, George & 43A 13. E. Dix Robert O. Criminal Practice Proce- Texas Practice- Criminal and Proce- Texas Practice: Practice (2d ed.2001), § 18. 39.32 dure (2d ed.2001), § at 23. 39.46 dure 3(c). 14. Tex.Code Crim. Proc. art. Id., § § at 19. Id., 4(a). § 4(d)(1). § 19. Tex. Code Crim. Proc. Id., (7); 4(d)(5) through George E. Dix & Id., Dawson, 4(d)(3) (e). Robert O. 43A Texas Practice- Crimi- appeals Although dant be served.
that the court of did.21 would If discretion judge’s for a trial un- intended has no constitutional to extend der Section 3 Article 42.12 jury-assessed punishment,22 a defendant far, legitimate qualification upon is a statutory right has Texas elect statutory right to have the appellant’s ... “punishment have his assessed” punishment.25 otherwise assess his community su- jury.23 We have said that part pervision “is not a sentence or even a second brings appellant’s This us to the Therefore, a sentence.”24 when a lan- argument. apparently Does the broad judge suspends imposition jury-assessed 3(a), guage Article Section fact punishment, he does encroach eligi- an authorize statutory option the defendant’s to have ble defendant Perhaps it assess his sentence. regardless of whether he or as- nevertheless, com- argued, could punishment? construing any sessed his munity supervision, with all of its attend- statute, analysis begin our with the we conditions, terms and is in sense ant some and resort to language statute itself *5 of the part “punishment” appel- that the legislative history only statutory if lan- the statutory right lant has a to have the plain.26 guage is not so, assess. if 42.12 Even Article does Statutory Language
fact authorize the trial court to
a
suspend
jury-imposed
place
appel-
sentence and
the
4(a),
Article
Under
Section
the
on community supervision,
lant
this would
plainly required
place
trial court is
an
a permissible legislative
constitute
qualifi-
eligible
supervi-
defendant on
upon legislatively
cation
a
right—
endowed
sion
the
recommends it.27 But
when
Legislature giveth,
Legisla-
the
what
the
mean,
of simple
not
as a matter
does
may
away.
event,
ture
taketh
the
logic,
judge may
place
not
an
judge
grants probation
trial
despite
who
a
eligible
community supervi-
on
defendant
(for
contrary jury
merely
recommendation
as-
a
sion when
does not
whatever
reason)
independent statutory
serts his
preroga-
it presently
recommend it. As
to suspend imposition
tive
reads,
directly
the sentence
speak
the statute does not
whenever, in
judgment,
Nothing
his best
the inter-
question.28
to this
the lan-
justice,
public,
ests of
Article 42.12
guage
expressly prohibits
the defen-
State,
Ivey
(within
supra,
process
21.
v.
at 124-25.
cedure
of due
bounds
strictures.”).
other constitutional
State,
377,
(Tex.
22. Barrow v.
380
State,
782,
(Tex.
Crim.App.2006).
Boykin
v.
818
785
S.W.2d
1991).
Crim.App.
2(b)
See
Tex.Code Crim. Proc. art.
(if
elects,
4(a)
“punishment
the defendant so
his
27. See Tex.Code Crim. Proc. (“A
by
jury”).
shall be
the ...
imposition
assessed
judge
shall
place
on
defendant
commu-
State,
530,
(Tex.
Speth
nity
if
supervision
6
makes that recom-
v.
S.W.3d
532
verdict.”).
1999).
Crim.App.
mendation
Moser,
530,
parte
post, originally
See
533
Ex
S.W.2d
28. As we shall see
Article
overruled,
1980),
(Tex.Crim.App.
directly speak
question
other
42.12
on
did
to this
State,
(Tex.
grounds,
judge’s
plainly provided
v.
discre-
Polk
S.W.2d 391
that the trial
1985) ("The Legislature having
Crim.App.
impose probation
depend upon
cre
tion to
did not
punishment
jury,
entity, judge
by
jury,
punish-
ated assessment of
which
Legislature may
pro
impose
alter
either
or abolish that
ment—he could
it in
event.
Legislative History
trial
suspending
jury-
imposing communi-
assessed sentence and
argues
history
“[t]he
supervision
ty
just
because
as-
that prior
Article 42.12 shows
to 1965
punishment
not
sessed
and did
grant probation
trial
could
3(a), broadly
it.
Section
au-
Article
jury,
unless it was recommended
see
eligible
thorizes
trial
an
Whitehead
162 Tex.Crim.
(1956).”30
gross
S.W.2d
This is a
it “in the best interest
whenever he deems
Whitehead,
oversimplification.
Neither
justice,
public,
and the defendant”
Brown v.
relied,
it
upon
nor the case
Presumably
judge might
do so.
a trial
State,31 purported
predeces
to construe a
community supervision to be appropri-
find
Instead,
sor to
42.12.
both con
ate
these
when the
criteria even
Suspended
strued
former
Sentence
punishment
has assessed
but de-
of 1913.32 First enacted before a
Law
clined, or,
case,
unable,
as in this
felony
permitted
defendant was
to waive
impose
But
does not ex-
it.
statute
Texas,
trial
pressly speak whether
broad discre-
Suspended Sentence Law did not authorize
tion to
a defendant on
probation.
per
true form of
Instead
3(a)
ap-
Section
conferred
juries
imposing any
mitted
refrain from
jury,
rather
plies equally when it is
at all
first-time offenders
judge,
punish-
than
that assesses
and until the defendant
com
unless
should
may
legisla-
look to
ment.29 We
therefore
offense,33
subsequent
felony
mit
history
help
us to construe the
but
tive
*6
there
no terms and conditions for
statute.
were
1913,
7,
dissenting
Judge
Leg.,
opinion, Presiding
p.
Acts
ch.
8. For a
29.
her
32.
33rd
that, reading
community-
argues
Keller
history
provision,
parte
partial
see Ex
of
supervision
whole,
provisions
Renier,
349,
366,
(Tex.
of Article 42.12 as
734
at
21
S.W.2d
n.
together with Article
Section
J., dissenting).
Crim.App.1987) (Teague,
2(b),
judge
plain
it
that
lacks
impose
discretion to
Indeed,
Suspended
Law
33.
had the
Sentence
whenever the defendant elects
have the
already
suspension
of a
authorized
jury
She therefore ob-
assess
by judge
jury,
imposed
or
su
jects
proceeding
of
to our
to an examination
does,
pervision
have
it would
been deemed an
construing
extra-textual considerations
upon the Gov
unconstitutional encroachment
language.
disagree
statutory
We
that the stat-
1935,
clemency powers
ernor's
least until
—at
ambigui-
utory scheme as a
is without
whole
to the
when an amendment
Texas Constitu
4(a)
ty.
that,
provides
42.12
Section
of Article
provided
first
tion
for the
time
Texas
go
jury
a defendant elects to
to the
when
explicitly
courts were
authorized “after con
punishment,
"may
it
for
of
recom-
assessment
viction,
imposition
suspend
or execu
community supervision.
mend"
In that
of sentence and to
the defendant
tion
event,
impose
the trial court "shall”
it.
IV,
probation[.J"
upon
Sec
Const,
Tex.
perceived
fact
the need
State,
Compare Snodgrass
A.
67
tion 11
v.
Tex.
expressly
mandate
615,
(1912),
162
Crim.
150 S.W.
Snod
jury
suggests
it
whenever a
“recommends”
State,
648,
contemplated
grass
v.
67 Tex.Crim.
remaining large any type supervi bation and Parole but the Law Later, imposed. granting probation sion once defendants had no role felony permitted were to waive trials in under the either. Because provision, ses,34 the Suspended original Sentence Law neither 1947 enactment nor ca supplemented judges proba- was to allow trial the 1957 re-codification the new suspend pleas guilty repealed Suspended also sentences in tion Sen- statute Law, they before the court.35 At no time continued to tence coexist Suspended Procedure, Sentence Law did a trial 1925 Code of Criminal and this authority suspend have careful not to defendant’s Court sometimes had sentence in a trial absent a recom confuse the two.38 jury. mendation from the With the advent of the 1965 Code of Procedure, The first true portion “Adult Probation and Pa- Criminal Legisla- role Law” was not enacted 1957 Adult Probation and Parole Act deal- until provision, ture 1947. Under this ing probation was amended and re- exclusively up of the trial codified as Article 42.12.39 While the 1947 court, plea “after conviction or a expressly pro- and 1957 acts had guilty[,]” grant whether probation.36 granting pro- hibited the trial had no in granting probation, role bation to prior a defendant with a convic- offense, trial. felony The 1947 act was tion for a version (as now) repealed replaced by the “Adult Pro- of Article 42.12 contained no such 1931, 43, 1, Leg., § 34. Acts 42nd p ch. 1947 act and the act is that the trial court was authorized to sentence and Id., 4, 66; 1941, p. Leg., Acts 47th ch. probation only upon the defendant on Indeed, p. reading a careful guilty plea any felony conviction or offense Brown, of Whitehead and both decided after Otherwise, other than those enumerated. felony empowered were defendants to waive criteria for and limitations a trial trials, they only reveals that stand for the authority impose probation court's were proposition that the trial court cannot sus- provision the same. This was codified as *7 pend a jury sentence in a trial under the again, Article 781d of the 1925 Code. Once Suspended jury Sentence Law the rec- unless Suspended the Sentence Law to continued ommends it. coexist with tire 1957 act. 1947, 452, Leg., 36. See Acts p. 50th ch. original provision, Under this the trial court Pittman, 301, parte 38. See Ex 157 Tex.Crim. suspend was authorized to sentence and 159, 305, (1952) (“The requi- probation upon the defendant on his convic- necessary suspended sites to a sentence under guilty plea any tion or but certain enumer- suspended applica- the law have no ated when offenses the court was satisfied tion to the Adult Probation Parole law. that it public was in the best interest the of probation of ... under that law is so, long and the defendant to do as as the entirely at the will or wisdom of the trial years sentence did not exceed ten and the judge.”). defendant had never before been convicted of felony. provision a This was codified as Arti- 1965, 722, Leg., p. 39. See Acts 59th ch. cle 781b of the 1925 Code of Criminal Proce- originally only felony Article 42.12 covered course, 1931, jury dure. Of a after also —and probation. Probation misdemeanor cases judge guilty plea judge— in a before the pursuant was available to former Article suspend could still a sentence under the still- id., Later, however, p. at Law, 42.13. See Suspended extant Sentence there but repealed Article 42.13 was and misdemeanor probation community super- was no formal or probation reincorporated vision involved. was into Article 1985, 427, Leg., pp. 42.12. Acts 69th ch. See 1957, Leg., p. 37. See Acts 55th ch. 1533 & 1555. only material difference between the Moreover, probation limitation. the if the explicit impose Sus- to pended expressly prior Sentence re- had a It felony Law was conviction.43 is not pealed. imagine Legislature may Juries authorized for the hard to why were the compelled provision. first time to recommend that defendants felt to add this have qualifications placed Undoubtedly met certain be of the holding who mindful Broivn, comt-supevvised probation. Leg- The limita- cases like Whitehead and jury-imposed probation tions were islature wanted to make clear it did generally they the same in as intend probation were statute construed, the former the former Suspended under Sentence should as Sus- (and been, they day), as had to pended Law remain to this viz: Sentence Law disal- 1) the defendant must motion the trial to judge’s file sworn low discretion fact, and the find as a a sentence and alleging, must defendant on just he has never probation before been convicted because had as- 2) offense; Moreover, felony the sentence must sessed the Legis- years. And, ten explicit change not exceed as lature wanted make statute, if from proba- current incarnation of the in the law the 1947 and 1957 statutes, prohibited recommended tri- probation, tion which had required granting probation any court it.40 al grant felony prior defendant with a conviction. addition, pertinent most no Although prohibition ap- such otherwise question today, before us Section 3c of original Arti- pears language originally enacted Legislature undoubtedly per- cle expressly provided “[njothing herein a need highlight change ceived —if powers grant shall limit the of the court to only to disabuse the criminal bench and probation regardless of sentence become, of what likely bar had over prior recommendation con- eighteen a reflex. years, course Thus, viction of the accused.”41 first Thus, adult-probation statute to at the time point allow first probation expressly also au- the statute both endowed probation, authority 'probation, the trial grant grant thorized court to stat- discretion, jury’s in its recom- that the expressly provided whether ute also also, authority binding it or not.42 for the first recommenda- mended It make a time, expressly respect the trial should not authorized tion with court....”); Rangel juries 40. Under former Article could *8 307, probation ("Even recommend in (Tex.Crim.App.1972) also misdemeanor 308 S.W.2d cases, subject analogous to limitations. though As the not have been to would able felony probation, with if the recom- probation, appellant recommend could still probation, the mended misdemeanor trial granted probation the have been court. required to grant court was it. 42.12, 3c, V.A.C.C.P.”). Article Section comparable language There was no in Arti- 42.12, (1979) (In- 43.See Article V.A.C.C.P. cle 42.13. (“Further terpretative Commentary), at 473 a the fact that defen- 480, note should taken of Kerry v. 42. See probation at the of 42.12, dant who receives hands (Tex.Crim.App.1970) (citing Article the must be one who has not theretofore support proposition 3c in that Section of the felony. No limita- been convicted of a such of a the absence recommendation ‘‘[i]n ..., placed upon who tion is the defendant elects question verdict of a of whether by the fixed Court. is entitled of to have an accused to the benefits adult 3c.”). probation law rests discretion Sec. within the of granting probation a court from impinge upon judge’s prohibit be read to trial course, grant just it. case if the case does discretion Of look- a Thus, the language original probation.”46 ex- ing at of the Article itself, language grant could particular press 42.12 there no reason was fact that the defen- jury’s authority probation despite believe that the should felony the trial conviction impinge upon judge’s prior be read dant had a was so, Legislator undoubtedly 42.12. Even discretion. removed from Article 3c, Analysis Article Bill simply Cfrganization added Section House Reseai’ch had made from emphasize changes it of oth- “[p]revious indicates that conviction Suspended and the old Sentence Law types er of felonies those listed in [than earliest Adult Probation and Parole stat- 3g] Article Section would not be utes. proba- a defendant grounds denying apparently tion.” It was not the inten- Subsequent Amendments of Legislature, removing tion to Article 42.12 express language of Section 3c re- 1965, convictions, spect
Since 42.12 prior felony Article has been to take eventually away judge’s authority amended erode and remove Sec- altogether, 3c grant just Section so the statute tion 3 to because longer expressly provides felony no prior either that defendant had a conviction. grant pro- has discretion to Then, 1993, Section regardless bation recommen- jury’s rewritten, and completely was Subsection dation, or that he can if grant (c) time, entirely.48 was Since that deleted felony defendant has a prior conviction. any language speak- the statute has lacked appellant urges to construe us ing directly to of question whether Legislature’s language removal of this grant community trial court’s discretion from statute to trial judges divest by a jury’s is foreclosed au- grant the discretion to probation when the thority community supervi- to recommend punishment. assesses We do not when it sion assesses None think that Legisla- was the intent mention, analyses bill much less ture. 4(c) explain, the deletion Section —but changes The relevant they suggest any way were incremental. neither do 1989, Section 3c of Article 42.12 was the intent behind the 1993 amendments to 3a, governing jury-im- struck.44 Section 42.12 Sections 3 and 4 of Article was to posed probation, granting was renumbered as Sec- prohibit (c) tion 4.45Subsection Section 4 to a defendant for whom the added, which read: “This section does not has recommend it.49 And declined to 1989, 785, Leg., p. legislation changed 44. Acts 71st ch. was the the no- Sept. eff. "community "probation” menclature from supervision.” *9 45. Id. at 3499. Organization, Analy- 49.House Bill Research 46. Id. at 3500. sis, 1067, R.S., Leg., pp. Tex. S.B. 73rd 32- Organization, Analy- 47. House Research Bill Center, 6, 1993); (May Senate Research sis, 2335, R.S., Leg., p. Tex. H.B. 71st R.S., 1067, Analysis, Leg., Bill Tex. S.B. 73rd 3, 1989). (May 1993). 11, pp. (Aug. 22-23 1993, 900, Leg., pp. § 48. Acts 73rd ch. 3718-19, 1, Sept. Incidentally, eff. of, Analysis prepared by Bill the Tex- struction probation Final former and sus- pended sentence statutes
as would mislead Punishment Standards Commission af- bar believing the bench and into that a ter ex- passed the 1993 amendment was jury’s authority un- mandate pressly declared that amendments to might impinge upon der Section 4 4 of Article 42.12 “intended Section were grant court’s it broad discretion law,” as a of clarified restatement current 1993, By Legislature Section proba- exceptions with three not here.50 relevant bly regarded the deleted language as vesti- contrary legis- We find no indication in the gial longer necessary to effectuate its —no history. lative intent.51 We hold that the trial court Legislature that We conclude not err appellant case did change no intended law when community supervision on though 4(c) 3c) (formerly deleted Section Section not and did time, 42.12 in 1993. that By Article it. It was within the discre- 42.12 been effect and in Article had tion of the trial court under Article twenty-eight years. constant use for some 3, so, long Section to do so any danger no longer There was serious met the criteria in, that conflicting language judicial spelled or con- there.52 out Commission, 29, appro- 50. Texas Punishment Standards in note ante. We therefore find it 1067, 31, Analysis: Aug. priate legislative history, Bill Bill Final Senate resort to the 1993, Commission, defunct, now at plainly that indicates no substantive drafting original was with version change tasked by Legislature of law was intended of S.B. 1067. See www.lib.utex.edu/taro/ in its 1993 amendment. tslac/50081/500811-P.html. 52.Judge objects disposition Holcomb our State, Citing Getts v. (if him) correctly we he because understand Judge (Tex.Crim.App.2005), Presiding Keller we misconstrue Article Section believes argues give that "we still effect to a must 3(a). Dissenting Opinion, at Section 56-57. language substantive revision that its 3(a) provides judge, in the best inter- "[a] law, changes the even if that was not the defendant, public, of justice, est and the Legislature's Dissenting Opinion, intent.” plea guilty after or of nolo conviction principle statutory But the n. 9. cardinal contendere, may” suspend sentence and legislative is to construction effectuate the in- community supervision. the defendant on Boykin supra, tent. at 785. Where say, Other of Article 42.12 con- provisions statutory language specific plain, is we trast, may, e.g., impose that the trial court terms, implement plain its even in the face of adjudication judge's deferred "when in the contrary legislative extra-textual evidence of opinion society the best interest of and the legislative intent is not intent —not because served,” will defendant Article paramount, regard we but because the lan- 5(a), or reduce the term confinement itself, guage specific of the statute when revocation "if plain, paramount to be the indicium of that determines that the best interest Getts, legislative intent. Id. In we found the society and the served” defendant would be statutory language specific to be and unam- 42.12, 23(a). thereby, Because Sec- biguous, rejected purported in- therefore 3(a) expressly tion condition does likewise legislative history in the dications opinion judge’s court’s on the trial action Legislature than intent of different what is defen- or determination about in the language expressed plain interest, Judge dant’s best Holcomb seems disagree Presiding itself. We with statute reason, must meant that have statutory Judge Keller scheme as up it was to deter- plain expressed in Articles 37.07 and 42.12 himself purposes mine in his what is best interest for respect to whether can being placed impose community supervision even when the asserts, Hence, pun- assess trial court. he defendant elects to have *10 ishment, supervision only out to de- expressed for in the text and “should be meted reasons Boykin v. this CONCLUSION Under Court must construe a statute in accordance the Accordingly, judgment the of the court text, meaning unless the statu- plain of its is appeals of affirmed.
tory ambiguous or the language plain is KELLER, P.J., dissenting filed a meaning to results that the leads absurd in opinion which HOLCOMB possibly have could not intend- COCHRAN, JJ., joined. ed.1 portion super- of provides: vision statute at issue here HOLCOMB, J., dissenting filed COCHRAN, J., in opinion, joined. A interest judge, justice, the best of defendant, public, and the after con- KELLER, P.J., dissenting filed a guilty viction or a or nolo plea of conten- opinion which HOLCOMB dere, may imposition of COCHRAN, JJ., joined. place sentence and the defendant on A defendant unambiguous has an statu- impose a fine to elect tory punish- who assess will applicable place to the offense and ment, which is not overridden the com- community supervision.2 defendant on munity I statute. would judgment therefore reverse of provision larger the This is contained within a appeals. court addressing judge-ordered section commu Dissenting opinion, erally law-abiding sirous defendants.” at citizen who was in denial reject We drinking problem. construction Article about an obvious Under 3(a). circumstances, implicit Section think it We might such the trial court ra- language provision up that it is tionally jus- conclude the best interest of tice, to decide it "in whether the best public, defendant himself justice, public, interest of and the defen- suggest would a course of substance-abuse impose community supervision. dant” It is rehabilitation, Article Section up to the defendant to determine whether (however stigma rather than the much the placed it is in his own best interest to be denial, defendant, it) might prefer in his of a probation any up public more than it is to the Moreover, jail prevents sentence. other- somehow determine whether it is in its best law-abiding perpetrate wise citizens who cer- probation. By Judge interest him on property against tain or crimes crimes understanding, Holcomb's a trial court could person drug support habit order from never a defendant on unless avoiding substance court-ordered abuse treat- it, regardless he "desirous” of of whether programs they ment for which are otherwise or the ("Substance eligible, Article Section quite legislative areWe sure that was not the Felony Program"), by electing jury Abuse as- intent. deliberately opt- sessment of ing community super- not to file for a motion imagine policy It is not hard to may vision. It often be the case that such Legislature’s judgment informs the to retain super- defendants are not "desirous” of court impose proba- in the discretion trial court vision, always but that does not mean it is not tion defendant who has elected Certainly in their best interests. this was the go punishment, to the for notwith- legislative directly policy expressed in the standing the desire of the defendant himself. statutory language right up prevents avoiding ap- It point until the 1993 amendment. As we out propriate simple court ex- text, 16-17, ante, nothing about the pedient electing go pun- change intended to amendment was failing and then to file a ishment motion for policy. community supervision. The instant case provides compelling example why (Tex.Crim.App.1991). 1. 818 S.W.2d policy eminently is an sensible one. From the us, readily record before the trial court could 42.12, 3(a). gen- concluded that have was a 2. Tex.Code Crim. Proc. *11 punish- tion of assesses the In addition to the au one who
nity supervision.3 above, the ment.6 quoted paragraph thorization maxi the minimum and section describes dictate, statutory a defen- By unambiguous community for periods mum time which right entity to elect which dant has the imposed limita supervision may be and punishment. The (judge jury) or assesses community ability impose tions community supervision part that is fact addressing supervision.'4 A later section from the statute’s “punishment” is obvious jury-recommended community supervision sworn, pretrial a defendant’s treatment of parallel provisions is in structure.5 These supervision as a re- community motion for authority judge a or general address the by the quest that be assessed punishment assessing respect to issue of imposes jury.7 judge A commu- trial who they but do not community supervision, to a nity supervision contrary jury’s pun- a or purport to address when verdict, against ishment and defendant’s respect becomes the decision-maker with wishes, the defen- illegally overridden has to that issue. punishment dant’s election. by is addressed another The “when” Moreover, prevent can a de- the State statute, confers the defendant punishment changing fendant trial: to a if a guilty election after a verdict. Even judge imposing pro- to a agreed defendant by Except provided as Article 37.071 verdict, a jury’s contrary bation returned, finding guilty if a is authority to do so without the judge has no responsibility be the of the shall then State’s consent. punishment applica-
judge to assess the offense; however, says Legislature that provided, Court ble to the (1) statutory right to a qualify could any criminal action where that provisions enacting pertinent trial community super- jury may that al- community supervision statute vision the defendant filed his sworn jury’s community be- low motion (2) community supervision.8 That impose began, other fore the true, legislative in is but silence within the defendant so elects cases where statute does not community supervision the commencement of writing before Though a constitute such an enactment. jury panel, of the voir dire examination right to a qualification on the defendant’s shall a trial permitted trial that provided in Section jury, except same to ex- 3(c) assess used article and Article 44.29. of this ist, legislative history returned, a matter of is is finding guilty If a consider not even unless we we do may, with consent ambiguity language state, first find an change his elec- attorney for id., su- 7. The Court’s contention § art. 3. See "sentence,” op. pervision Court's not a is punishment- here because irrelevant Id., 3(b)-(h). limita- Further art. "pun- uses the broader term election statute supervi- judge-ordered tions on language contem- its own ishment” 3g. §in imposed sion are includes plates "punishment” supervision. Id., § 4. art. ("what Legislature op. at 47 8. Court’s away”). 37.07, 2(b). may Id., giveth, taketh
55 pertinent statutory provisions. pellant deliberately Be- failed to file a sworn ambiguity declaring cause there is no motion that he had been when the rele- never felony, rendering convicted of a thus him- vant provisions are ineligible jury-recommended self com- together punishment-election read with the munity supervision.1 provision, a reading and such does not lead results, to absurd there is no occasion to 2006, In appellant October tried be- was consider historical developments.9 fore a jury guilty driving and found jury, intoxicated. The after hearing while case, In the present appellant elected to punishment additional evidence at the jury punishment. have assess phase, appellant’s punishment trial judge’s imposing act of community $2,000. days jail 35 in and a fine of contrary was to that election court, reading jury’s after assess- contrary and therefore to the law. court, ment punishment open in called a I respectfully dissent. recess, during the court which met and spoke jurors jury room, with HOLCOMB, J., dissenting filed a apparently outside the presence of the opinion, COCHRAN, J., joined. prosecutor and the Im- attorney. defense respectfully I my view, dissent. mediately meeting, after the trial the trial what court did in this case violat- court returned to the bench an- appellant’s ed statutory right to have the that it going nounced was im- assess his and his consti- position jury-assessed of the jail time and tutional process due Ac- law. $1,500 fine, jury-assessed of the cordingly, I would set aside the trial appellant supervision for placement court’s on commu- years. two nity supervision jury’s and reinstate the Under the terms court-imposed assessment of community supervision, appellant was re- Allow me to May review the facts: In (1) quired to, among things: spend other 2005, an county attorney assistant in Tra- (2) (3) days $500; in jail; pay a fine of County vis filed an information pay an per additional month in com- $60 court charging appellant with misdemean- (4) munity fees; complete 60 or driving 2006, while intoxicated. In July (5) service; report hours of appellant filed in the (6) trial court his services”; written “counseling education install election to have the punish- “ignition system” assess his an interlock his motor (7) ment in the vehicle; event of his Ap- conviction. commit no offense—not even a trial, Ordinarily, provision the fact that a punishment stage appel- 1. At the of his Legislature explained why deleted lant is evidence that the in took the witness stand and repeal prescribed supervision: tended to he did not want the rule therein. parte Burgess, Ex 152 S.W.3d Q: Now, why you stating from —aside (Tex.Crim.App.2004)("transfer” language de you you problem don’t think have a statute). assuming leted from habeas Even drugs, why you alcohol or else did not want that the Court is correct that other factors the [i.e., community supervision]? analyzes Court show that the did Why probation? A: did I else not want At law, change not in fact intend to we must frame, job that time I had offers in other give still effect locations, to a substantive revision that country, in and out of this law, language changes its even if that which I did not have or want to have to Legislature's was not intent. Getts v. County] stick around Travis leave [in or ends, (Tex.Crim.App. honestly just loose and I wanted it to 2005)(DWI statute). over, out from behind me. alcohol, completely and must abstain against traffic laws offense— among infringements or of the United on his liberties. any other state other state *13 (8) hab- States; injurious or vicious caught violating any “avoid If of these nu- he is (10) (9) its”; beverages; conditions, no alcoholic community supervi- drink merous his officer community supeivision report to his point he sion can be revoked—at which (11) month; remain Tra- each within once original 35 then be sentenced his will by permitted to leave County unless $1,500, vis in jail pay in must addi- days and community supervi- or his the trial court already jail time he had tion to whatever (12) “[sjubmit blood, officer; sion and paid or, perhaps and fine he had served — breath, by specimen requested as or urine perspective, from this defendant’s worse Community Supervision Officer [the] community supeivision could be ex- his officer.” any peace year. for another tended are, believe, I terms probation Those jury’s took the The trial court jury- than the objectively much harsher considerably and made it harsh- True, appellant punishment. argues that this is not so majority er. The jail in under the only days has to serve 30 part is not community because order, days of 35 under probation instead is, rather, suspension of the sentence but However, jury-assessed his proposition, the ma- of sentence. For this order is for 30 community supervision jority Speth cites days under the days, real while the 35 Speth, though, (Tex.Crim.App.1999). by good reduced sentence could have been traditionally it has probation understood as Cruthirds, 712 Ex Parte See behavior. understood, clemency, a matter of been (Tex.Crim.App.1986). S.W.2d lifting a court a more onerous sentence $500, in- True, only appellant pay must agreeing for the defendant exchange order, $2,000, stead of Community certain conditions. abide each an additional pay but he must $60 clemency extension of supeivision is “an months, he for 24 means will month Speth, in nature.” that is contractual pay a total $1940. S.W.3d at 533. similarity between the The remarkable supeivision] grant- is [community When and the terms of jury-assessed punishment ed, clemency and the trial court extends costs contained pecuniary confinement is, relationship way, in a creates a community supeivision in the trial court’s is, agrees the court with contractual pause before give this Court order should clemency by way the convict supervision “is declaring if he be extended will probation will of a sen- part or even not a sentence perform requirements certain keep and theoretically, may true tence.” That conditions, the violation of which way the appear to be the but it does of the [com- will authorize revocation matters. trial court saw (Citations supeivision]. Ibid. munity spending five few- possibly In return for omitted.) (i.e., $2,000 jail saving days er $60 legis- textual evidence that There is $1,940),2 years the defen- for two minus supervision to intended lature county without his cannot leave dant statutory language such. The permission be used as officer’s 13(i). record art. savings illusory. The defen- Crim. Proc. Perhaps is this ignition interlock will cost. pay to have an reflect how much that dant must does not Code car. See Tex. installed device judge, judges imposing tions on trial issue this case states that “[a] supervision on other crimes. public, justice, in the best interest ... defendant, and the after conviction case, charged In sen- may suspend imposition misdemeanor, B the second lowest Class tence on commu- recognized the Texas level of offense nity Proc. supervision.” Tex.Code Crim. reading If majority’s Penal Code. added). 3(a) (emphasis correct, seems to be the statute there guilty places, way three other 42.12 refers of those found nothing *14 punish- a assessed a minimum the of ... that “best interest the defendant.” probation, ment did not recommend 5(a), 23(a). but (b); §§ See id. at In each having judge suspend a trial court instance, specific language vesting there is community impose their sentence and su- authority the trial the deter- court with pervision appel- with terms similar to mine defen- what the best interest of the result, one lant’s.3 This is an absurd that authority. dant is. Here there is no such Legislature could not have intended. words, Legislature Where the has omitted prevent- that inten- be interpret we should omission as That anomalous result could reading the statute with the agree ed meaningful. tional and The omission suspended notion that a sen- traditional power vesting words to determine community is a form tence and best interest of defendant with clemency, not an additional allowing trial court should read as de- such, only As it should be meted out fendants here to determine best their own majority says desirous defendants. The interests. right that this would create “a to avoid reading considering This makes sense supervision.” on being placed that, here, as reading a broad of the trial accurately, it seen as a More should be authority court’s would allow a right waivable impose a punishment harsher than the right, If jury. there is no such then jury did. That would be at odds with punishment a to have assess statutory Texas’ authorization defen- for a much. does not mean dant jury-assessed to elect punishment justice I with the be- agree dissenting and the traditional sus- understanding that statutory right Appellant low. had pending sentence and granting punishment have a assess within clemency. is a matter of All of range By out the Legislature. laid explicit statutory restrictions on imposing4 community supervision order judges’ power sentences deal jury-assessed than was harsher in- with violent felonies or felonies that punishment, the trial court violated children, volve for which the statutory right as fundamental well showing re- judges leniency disallowed but play justice fair notions of substantial authority juries pro- tained grant due process that we associate with law. bation. Armstrong See Tex.Code Crim. Proc. S.W.2d See By § 3g. explicit (Tex.Crim.App.1995). allowing There are no restrie- Indeed, uniformly by suspending jury-assessed re- 4. The statutes cases almost imposing community super- "granting” fer a defendant commu- to courts vision, the trial court could order nity inappropriate supervision. That word is spend jail defendant more time in than here. jury assessed. this, system where up this Court sets misdemeanants, the most minor interest, best can find them-
against their lengthy onerous communi-
selves with pro- terms. is not due
ty supervision This
cess of law. addition, likely appears quite
In relationship
there was cause-and-effect parte ex improper
between court’s jurors
meeting and the court’s
decision view, my consistent with
supervision. law, process
due we cannot countenance of a on communi- placement *15 appar- placement when such
ty parte ex
ently improper con- arose
tacts. respectfully
I dissent. FLETCHER, Appellant
C.Y. AND
DEPARTMENT FAMILY OF SERVICES,
PROTECTIVE
Appellee.
No. 01-08-00052-CV. Texas, Appeals
Court Dist.). (1st
Houston
Jan.