*1 Appeal The Record on seven, point
In his of error number
appellant contends that the trial court im
properly objection overruled his appeal. appel
record on Omitted from pages complete copies
late record were scrapbook
from a that the District Attor scrapbook
ney maintained. The had been excep
introduced into evidence as a bill of appellant’s motion
tion at the on It contains numer of venue. pages contain more than pages;
ous most newspaper
one article cut out from either a aspects magazine pertaining to various
of criminal law. appel- reviewing record and
After thereto, the tri- objection
lant’s we ordered supplement
al the record on complete copies pages
with objected
scrapbook to which 55(c). Tex.R.App.P. appeal. See this order and complied
trial court has is now complete copy scrapbook point error num- Appellant’s us. has not is therefore moot—he
ber seven complete record right
been denied appeal. is affirmed.
CLINTON, J., joins only
of the Court. J.,
DUNCAN, participating. SMITH, Appellant, James
Jesse Texas, Appellee.
The STATE Galveston, appel- Blumberg, Rachel No. lant. Texas, Appeals of Criminal Guarino, Roger Atty., Dist. Michael J. En Banc. Galveston, and Ezell, Atty., Dist. Asst. May Austin, for Huttash, Atty., Robert
the State. *2 judg- OPINION ON STATE’S PETITION FOR Corrections.” We will reverse the Appeals. of DISCRETIONARY REVIEW argued appeal, direct On State CAMPBELL, Judge. 3e(a) V.A.C.C.P., 42.12, Art. that former Appellant pleaded guilty offense spent required person actually to have robbery years of and was sentenced to 10 Depart time incarcerated in a Texas Department confinement in the Texas of facility ment of Corrections before 10, 1988, February Corrections.1 On eligible argu for shock custody into the was remanded of the sher- that sec ment is based on observation department iffs “until such time as the judge’s to the trial tion 3e addresses itself obey Sheriff can the directions of this sen- that the defendant would not determination Although judgment specified tence.” benefit from further “incarceration that he was to serve his sentence simply “fur penitentiary,” opposed Corrections, custody Department of The reasons incarceration.” State shortage space of forced the sheriff to that of incarceration in a it is the shock holding appellant continue in the penitentiary state that motivates a defen jail. reform; whereas, On June was conducted dant to (shock appellant’s probation provide impetus for motion for would not the same that, 3e(a))2 responds probation Appellant art. rehabilitation. V.A.C.C.P. 42.12 § expressly pred 3e could have while Section after execution of his sentence. The trial eligibility probation for shock on in motion, icated granted appellant’s ap- and Department of carceration the Texas pellant pursuant was soon released to the not do so. the statute does Appellant court’s order. was never trans- Department ferred the Texas Appeals held that Section Court appealed tions. The State expressly require confinement 3e does not V.A.C.C.P., 44.01, probation, see Art. that Department in the of Corrections and the First affirmed the predicating eligibility thus for shock proba- court. 762 S.W.2d ef- penitentiary tion on confinement would granted We for fectively contravene allow State to discretionary review to determine “whether probation shock for a inmate de- may grant a trial court laying county facility transfer from a until jurisdiction when the defendant has never served the trial court’s 3e Department lapsed. of his sentence in the Texas The court noted that Section imposed 1. The is now called execution of the sentence Corrections Justice, probation of Criminal Insti- under the terms the defendant on article, tutional Division. and conditions of this in the if judge would not defendant statutory provisions incarceration in a 2. The current relevant from further may are located in under this section Probation 42.12, language upon only 6-8. The which if: eligible recodifi- the State relies was not in this is otherwise for the defendant article; text of Article cation. The relevant under this appellant's effect at the time of trial and motion been in- had never probation, stated: penitentiary a sentence carcerated felony; section, (a) purposes Sec. 3e. For the defendant was the offense for which the a sentence of a court in which other than those defined convicted was Depart- requiring in the Texas confinement 19.02, 20.04, 22.021, 22.04(a)(1), (2), Section imposed Corrections is for conviction ment 29.03, 36.02, 71.02[,] (3), felony (of days or a felony) shall continue for 180 actually degree under Section the execution of the sentence of the second date Code, days begins. expiration [emphasis After the of 60 but added]. Penal prior impor- review is that this is an 3.The reason for date the execution of the sentence been, but law which has not tant issue of state begins, judge of the court that be, Tex.R.App. by this Court. should decided on his own motion or on writ- defendant, 200(c)(2). suspend further Pro. ten motion of the anything probation, assuming legislature intended but allows for shock that qualifications, meaning of the words in defendant meets other the literal requires person his sentence hold in order for confinement probation, per- eligible *3 Appeals distinguished portion this lan- sen- serve some son must guage requirement from an incar- actual tence in the of Corrections. in ceration the appellant had not been incarcerat- Because addition, In past statutorily penitentiary, the court looked amend- in ed a was ineligible ments of Section 3e and cases from this added, indirect, although support Court for is the Court of judgment of position. for its reversed and the This cause is remanded court is vacated. Despite reasoning the to the trial court for action consistent terms 3e are Appeals, the of section opinion. a is unambiguous. clear and When statute unambiguous, clear and this Court will not STURNS, J., dissents. plain meaning wording in strain that give order to the statute “desirable” CLINTON, Judge, concurring on 21, State, reading. v. 575 Floyd S.W.2d discretionary petition for review. State’s v. (Tex.Cr.App.1978); 23-24 Courtemanche misconception is a fundamental There State, 545, (Tex.Cr.App. 507 S.W.2d 546 reasoning of the court underlying State, 1974); 538 S.W.2d see also Powell v. appeals, viz: 617, (Tex.Cr.App.1976). 619 “Further, in the statute language have had one of could jurisdiction for 180 giving the trial court using the word possible two intents in of the 'from the date execution First, “penitentiary.” could intend- it have actually begins’ means the date sentence person seeking pronounced.” the sentence is in a have incarcerated must been State, (Tex.App.— 235 v. 762 S.W.2d Smith legis- understanding 1988), it at For me Houston [1st] penitentia- intent rational lative is because pro enough Legislature neither is clear ry qualitatively different confinement is be thus phrase intended that vided nor Second, legisla- jail than confinement. State, 676 construed. Williamson v. require simply intended to ture could have (dissenting (Tex.Cr.App.1984) 428 S.W.2d specify con- of conviction 429-430). opinion, at finement within the being “The incarcerated in a ‘shock’ is tions, regard to the defen- without whether by rea- penitentiary operated TDC for a penitentiary, time in a ever serves dant time, period not sonable that a defen- leaving open possibility local run fined other migh serve his dant State, sheriff. Tamez v. S.W.2d [620 itsOn Sec- type penal institution. 586], 588-589, n. 3.” at judge to find that requires the trial tion 3e Id., at 430.* fur- not “would a defendant basis, join opinion To I On that penitentiary.” ther incarceration to determine Court. ym are unable the extent that period, jurisdictional cit seems to read our
*The Houston 780, State, (Tex.Cr. controlling begin ing S.W.2d 781 opinion date to Adams v. day period calculating jurisdictional App.1981) (imposition is the of sentence and confine Smith, supra, pronounced, at 236- day) occurred same Houlihan in TDC 213, 1979) State, does not hold that. (Tex.Cr.App. It S.W.2d day, (capias defen after mandate executed one Pointing that notice out next). it dant in TDC the While incarcerated was confined and "the 586, Corrections,” id., as regard does sentence was at sentence," subsequent execution of the "commencement of id., observes that further opin- probation came for all we know effort MILLER, Judge, dissenting persons time discretionary review. The lan- jails sentence. under peniten- guage “further incarceration I it best when statutes believe State, tiary”, heavily by the relied on so V.T.C.A., guided by Government read to mean that be Code 311.021and 311.023. Section 311.- enough and that fur- jail incarceration in 021 states: incarceration, time in the in Enactment of Intention Statutes tiary, would of no benefit. enacting presumed it is that: (1) compliance with the constitutions of is bolstered recent This construction this state and United States is provi- the shock amendments to ed; sions, presumably made to accommodate *4 (2) the entire statute is intended to conditions. changing times and effective; Much has from former (3) 3e(a), just to the current statu- and reasonable result is Sec. relating tory provisions to shock in Art. 7 & V.A. (4) contained Sec. in- a result feasible of execution is tended; “Further incarceration C.C.P. now “further tiary” in the former article is (5) public interest over is favored incarceration”; copy request “shall
private interest. from defendant’s record while incarcerated Section 311.023 states: Department of Corrections” Statute Construction Aids copy defen- request now “shall whether or dant’s record while incarcerated ambiguous is considered statute or among its a court consider county jail, defendant is incarcerated the: other matters argument While an the sheriff.” attained; (1) object to be that these almost nonsubstantive be made (2) circumstances under which the stat- heart in the changes evidence a enacted; ute was act legislature, proper code construction (3) legislative history; just to the conclu- analysis leads (4) statutory pro- common law or former simply making sion visions, including laws on the same or original unchanged in- more clear its subjects; similar tent. (5) particular consequences of a comments, I With these dissent. struction; (6) construction of administrative
statute; and STURNS, J., joins. (caption), preamble, and emer- title
gency provision. guide- using it to these
Suffice
lines, (2), (3), (4) and particularly numbers (1), (5) and numbers 311.021 in this case the correct result
of § granting to allow the appropriate credits was reinstated with delivered to TDC and ion Tamez was id., served, at 590. began or the next for time his sentence that same called on to determine and The Court was not day. Moreover, question certainly decide the problem did not is that the basic However, presented. did address the me- judge pronounced after the trial proper procedure "since a defendant purported to cause the chanics and he also De- would be in the probation” "before it court to "shock Tamez, partment under sentence when of Corrections at 587. Conse- to do so." Id., probation is considered." n. the motion for 3, quently, every undertaken thereafter was action aside; original ultimately set flawed