*1 totality circum- look [W]e off, try pick and do them
stances one, up some alter- by conjuring explain innocence hypothesis of
native Finally, in isolation.
each circumstance importantly, we do not take an
and most In- approach. or theoretical
academic
stead, clinical detachment we eschew a common sense view to
and use of normal life.44
realities
Examining totality apply- of facts and considerations,”45 experience
ing “common with court of agree reasonably could have concluded that
jury $502,020 appellant con- found was—as closing jury— to the argument
ceded delivery of a from the controlled
“proceeds alleged in the indictment.
substance” judgment therefore affirm the appeals. WHITSON,
April Hope
v. of Texas. STATE
No. PD-0514-13. Appeals
Court of Criminal Texas.
7,May 2014. suitcase; bricks; empty proximity taped in the on the the close form of hidden before, partment; empty presum- and defendant’s actions suitcase that cash search) time; during, and ably after the Deschenes an at one odor contained narcotics cash). 382-85 & 7-24 v. 253 S.W.3d nn. narcotics on ref'd) (consider- (Tex.App.-Amarillo pet. $242,484.00, ing piecemeal finding in- the evidence it States v. 389 F.3d United (11th Cir.2004). support money sufficient to a nexus between drugs; large and cash; evidence included: sum of $250,000 route; drug in United States travel on a known United States (1st Cir.1987). Currency, packaging money; odor of 808 F.2d narcotics *2 its third motion to adjudicate after community supervision her had ex- pired. The court of appeals overruled these issues affirmed the trial court’s State, judgment. Whitson v. No. 02-11- 00156-CR, (Tex. 978945, 2013 WL at *1 Worth, App.-Fort 14, delivered March 2013). granted
We review two of the three grounds that appellant peti- raised her discretionary review: “Whether court jurisdiction trial lacked to revoke appellant’s community supervision because to proceed adjudicate filed one after the seven one half year period probation ended” and Falls, Holly Crampton, Gail Wichita pronounces ‘When the court peri- Appellant. od of being so Ryan F. Conway, Assistant District At- many years many months and and/or Counties, torney, Young Stephens correctly then the date is not calculated so Graham, McMinn, Lisa Attor- C. State’s the amount of years months and/or Austin, ney, for the State. ending and the calendar are [not] same, prevails, OPINION which the announcement of months the calendar and/or JOHNSON, J., delivered the opinion date, longer period regardless of the PRICE, MEYERS, the Court in which conflict, intent, the court’s or some other WOMACK, HERVEY, COCHRAN, and method of resolving the conflict?” ALCALÁ, JJ., joined. conclude that holding this Court’s April appellant On pleaded State1 sets out the end- guilty burglary offense of a habi- calculation and controls the event finding tation. trial court deferred a of a conflict with a end-date. We guilt her on placed su- sustain grounds therefore these and re- pervision years, for a five appeals’s judgment. verse the court of began day. The trial twice court extended her term of I. Facts and, upon state’s
sion
third motion
guilt,
punishment
her
assessed
appellant plead
On
guilty
eight years’
at
confinement.
burglary
the offense
habitation.
adjudication
On
appeal, appellant
direct
asserted that The trial
placed
community supervision
court lacked
revoke
her
for a
Nesbit,
community supervision
years.
her
appel-
because
term of five
Under
(Tex.Crim.
against
counting days,
1. Nesbit v.
III. Parties regarding community-su- confusion exact granted appellant’s grounds two of pervision She urges end-dates. further review, for in which asks she this court reject this the Crecy inquiry Court into pe- when a determine which controls trial-court intent resolving as method of and years specified riod of and months discrepancies cited the court of provided an calendar termination date appeals. Appellant notes the lack of a end-dates, conflicting order and produce providing Texas statute that a trial court whether trial court lacked jurisdiction confinement may specify an end-date to or community supervision, to revoke her instead, community supervision; the stat- adjudicate when the state moved to one provide utes for a term of years and end-date, specified yet before months, Adjudi- and the Order of Deferred day after the date calculated under Nesbit similarly form cation elicits prescrip- tion of such a time period. ap-
The state asserts that the court of peals correctly not found that Nesbit is The state counters the trial court applicable speci- because the calendar date jurisdiction to appellant’s retained revoke fied for appellant’s termination of community supervision because the state’s adjudication “was unrelated to the issue of was filed one ‘anniversary date’ of the of com- Reasoning the term expired. before munity supervision.” only limitation applies only prescribe cases that community court’s extension as a community-supervision period adds, supervision, it the statutorily man- months, term of and the state as- felony dated term ten-year maximum for end-date, specified serts that a calendar this urges offenses. The state further provided, prevail where should because it of a Court to declare in the event unnecessary. renders a Nesbit calculation provision conflict of a term of between the only The state notes that limitation on supervision an ter- community explicit setting a trial court’s and extension of date, mination date should community supervision is that the total control. felony may term for offenses exceed years5 posits statutory contends that ten confusion Texas precise referencing end-date de- surrounding language of a these durations as preclude re- “periods” fendant’s and “terms” does not adherence definite provision solved with Court’s decision Nesbit v. State: the term of includes distinguishes end-dates. The state also 42.12(b)(1). 5. TexCode Crim. Proc. art.
636 issued, probationary period.”); during extension original (Tex. arguing Guillot S.W.2d period, of such a Adjudica- Crim.App.1976) (observing that both mo the Order of Deferred citation to or whether a term must capias not resolve tion to revoke and arrest does end-date, period, expiration or a issued prior cites Finally, the state juris for an amendment. for trial court to retain diction). Section 311.026 the Code Construction Act, provides general where always “This Court has not been clear irreconcilably provision or local special [precise] duration time conflict, provision pre- local special purposes of a term of su apply urges principle vails and us to State, 227 pervision. ...” Nesbit v. S.W.3d specific so that the to the issue hand (Tex.Crim.App.2007). Compare community- in all date controls calendar Donaldson, 232 (suggesting 86 S.W.3d at supervision cases. six-year probationary period in dicta that May imposed May expired Analysis V. *5 1999) 10, Guillot, 651 and 543 S.W.2d at the judge’s opinion in When (noting probation, that defendant’s dicta society best and the defendant interests 1972, 27, ex began on March had served, judge, upon the trial receiv will be 1975) 27, parte on March with Ex pired guilty plea a of nolo conten- ing plea of or Fulce, 660, (Tex.Crim.App. 993 S.W.2d 662 finding present the evidence dere and that 1999) (stating two-year community that su may guilt, ed substantiates the defendant’s 1994, February 18, pervision beginning on community supervi place the defendant on 17, expire February “was scheduled to on adjudication of entering sion without 1996”). art. guilt. Tex.Code Proc. Ann. Crim. 2007, however, In we resolved these dis- 42.12, 5(a). may judge § The extend crepancies community-super- in calculating community supervision term defendant’s vision The end-dates State. as upon showing good cause as often adjudicated Nesbit guilty trial court had except necessary, he or determines is she 1994, 29, indecency April with a child period may ten that the total not exceed placed “regular” and him 42.12, years felony cases. Id. art. years that supervision for term of ten 22(c). § expired, term has When this Nesbit, began day. at 66. S.W.3d ordinarily must court “dismiss 29, 2004, April On state a motion dis proceedings against the defendant and community supervision, revoke al- his 42.12, 5(c). § charge him.” Id. art. How by its leging that he had violated terms ever, jurisdiction to the trial court retains persons places with or dis- associating if, adjudicate guilt proceed to before The court reputable character. Id. files expires, term a motion rejected argument Nesbit’s his for the capias is issued munity 5(h); midnight ended 42.12, § Id. art. defendant’s arrest. 28, motion, April Donaldson, granted state’s parte see also Ex 86 S.W.3d 231, (“We years in prison. sentenced Nesbit ten have (Tex.Crim.App.2002) reversed, appeals holding The Id. long that a trial court held has was [probation April after correct end-date to hear a motion to revoke juris- period expires] long and that trial court lacked as the filed, his capias properly and a warrant or diction revoke 311.026(b). 6. Tex. Gov't Code § principle
sion due to the now known as the termination date and control in the event of a against counting. rule conflict with pursu- calculated ant to The argu- Nesbit. essence of this rule operative is that duration ment is that Nesbit the stan- established during person of a which a time dard method of final calculating day upon suffers specified restrictions his no when other freedom virtue of either a sentence of by guidance given except has been imprisonment years stated in and months includes the first in which such re- unneces- sary any operate inapplicable ambiguity strictions freedom and ex- when upon anniversary by has been the prescription cludes the date. same resolved cannot double counted. This definite calendar end-date in the order. A fair, rule accord logical, approach and in second determine correct prior precedent construing the Code end-date uncertainty,7 in the event of re- Act. by Construction lied on v. Crecy State cited court of is to look to added) (footnotes Id. at 69 (emphasis omit- intent signed court’s when it ted). Thus the determination Nes- community supervision. ten-year community bit’s supervision last- through April ed from Although squarely Nesbit did not ad- premise rested on this dress inconsistency, believe could not be included clearly articulated rationale and concerns twice in first and last of his are dispositive of the issue before us. The *6 community supervision. underlying concern in that case consisted affirmed, of stating advancing goals
This the twin protecting Court of “[i]f day period serving the first to be includ- defendants punishments of from ed, day prescribed ... of excess of period the last should be their terms and en- otherwise,] excluded[; suring would their to period right pre- be understand the day.” cise their specified period] plus punishments. [the one Id. at conditions of Richardson, McGaughy 68 (quoting That did Nesbit not involve an or S.W.2d 115 (Tex.Civ.App.-Dallas der a specifying calendar end-date does n.r.e.)). writ ref d explicit not nullify ruling our that the ini observes, correctly As the state Nes- community tial of supervi calendar date bit did not controversy require Court sion not be in the final may counted to choose between a standard calculation case, year. In we declared be specified by and an end-date a trial court. cause Nesbit’s be supervision Today we asked are to determine what the gan order, on the of the he date suffered rule will a be in event of such conflict. very his day. restrictions on freedom that Nesbit, Accordingly, posit, As the and court of we S.W.3d reject[ed] provided “necessarily argu definite end-date the State’s court could be used both to ment that to appellant set correct serve Appellant urges that we construe could Nes- trial court ordered a defendant to com- plete apply five-year community bit to all determinations communi- term duration, 1, 2015, ty-supervision adhering January beginning to its ex- and also set a 30, 2019, press prohibition including start date in termination date December it year. suggested argued A final modification not could be that the Nesbit calculation by appellant apply only apply, adhering need would Nesbit not as to the doing prevent the extent that date would run afoul Nesbit’s rule would counting. example, against counting. disallowed double if For double placed he on all determinations and a when was years
ten ten exactly follows should a duration. It sion more, declined no no less.” Id. We years, provide specific end- trial elect of Nesbit’s date to count term of addition standard final in the order months, this date must be cor- years term, would of his inclusion year rectly computed pursuant to Nesbit. beyond liberty one have restricted his error with the began In this in the court term set forth decade-long extension; the trial court ordered an first Here, sev- holding appellant’s order. 4, 2007— extension of one —to adjudica- en-and-one-half-year deferred erroneously yet the order end- entry tion, began immediately upon year. two in excess of days 5, 2002, not end did of the subsequent error was in the ex- repeated would result in the until October tensions, supervi- of which extended each impermissible counting same defined sion adop- in Nesbit. The sought eradicate Accordingly, months. we conclude rule in defen- that would result adjudication ended on community-supervision serving dants court, October there- prescribed terms longer terms than their fore, grant did not retain and, more criti- would counter both adjudicate filed the state’s motion to cally, process. violate due year. October of that Moreover, uphold if we were to State v. appeals’ court of endorsement of Conclusion VI. into Crecy, injected further would be doubt exact defendants’ ascertainment of the hold in all com- that Nesbit controls in- Such an length supervisions. their putations community-supervision end- as to quiry into mind of trial court not have dates court did many prevails which date would leave de- third motion jurisdiction when state’s precise fendants unclear as to the end-date *7 timely. to was not filed until community-supervision of their terms judgment ap- reverse the of the court jail to they already have been sentenced and to the trial peals remand cause necessarily and would mean that also proceedings consistent further juris- to decision of the trial court exercise opinion. types of cases could not be diction these challenged. applying only to As for P.J., KELLER, concurring filed excluding counting, the extent of opinion. clarity sentencing the same notion of applies. Although the state and court KEASLER, J., concurred in the urge read Nesbit this Court judgment. narrowly only as to bar excessive KELLER, P.J., concurring filed a terms, munity-supervision this Court opinion. compelled require orders constrain- ing liberty unequivocally state defendants’ here is which controls in question The the duration of this limitation. in an the event of an internal conflict extending the term of
These of a defen considerations (or years) which the by the months sion: and right appropriate dant’s to serve calendar date us to term is extended readily ascertainable sentence lead order. all due re- controls in With hold Nesbit calculation ques- opinion begs spect, Court’s
tion. by appel- referring Court does so term of as
lant’s “seven-and-one-half-year deferred ad-
her
judication.” This assumes that the term by is measured
months calen- instead of date.
dar ques
There is no obvious answer to the of which should control in out, but it turns is an
usual there in this Appellant
obvious answer case. waiving
executed written her documents
right to a exten hearing agreeing to extension) (for
sions of one the first (for eighteen ex months the second
tension). Because court’s orders pursuant
were issued waiver extension,1 I agreement would hold trial court was not authorized appellant’s community supervision
extend
beyond agreed-to one-year eigh periods.
teen-month motion to State’s
adjudicate was too late.
I judgment. concur in the Court’s PEREZ,
Ramon
The STATE of Texas.
No. PD-1380-13. Appeals
Court of Criminal of Texas.
May file-stamped first waiver a.m.” waiver are "9:32 second and order both file- file-stamped stamped p.m.” and the order "9:35 a.m.” "1:35