Defendant is convicted of DWI and placed on probation. As he starts probation he appeals and the probation is stayed. Judgment is affirmed and mandate comes down from the appellate court with notice to defendant's attorney. Re-sentencing hearing is set but neither defendant nor attorney shows, and a failure to appear is filed, but no motion to revoke is ever filed. That was in 1997 and has been overlooked until now. Defendant now says that the FTA is a nullity because there was no motion to revoke and therefore he completed his probation. Huh?

The defendant's sentence begins to run when the mandate from the appellate court issues. While it is nice for the judge to have a formal court setting notifying the defendant that his probation has started, it does not appear that the formal setting has any effect on whether it actually began.

This is an awkward area of the law. For cases in which the defendant has to serve a prison/jail sentence, obviously he doesn't begin serving it until he is back in custody. But for probation, you don't have to be in custody, so it begins when the mandate issues. See, e.g., Easton v. State, 866 SW2d 656.

The cases which established that the term of supervision does not commence until the mandate of the higher court is received by the clerk of the trial court do not address the need for a modification to the dates stated in the original order. The language of those opinions make commencement self-operative. Thus, I would have to agree that the failure of the defendant to appear for "re-sentencing" did not mean the term of supervision had not commenced. Ergo, once the term (as extended by the appeal) expired without a pending MTR, the court lost jurisdiction to enforce its original order. This analysis has nothing to do with the validity of the warrant issued based on the failure to appear.

So, why not prosecute the defendant for the bail jumping?

That gets back to the fact that the Defendant was not necessarily released (at sentencing) "on the condition that he subsequently appear", but rather on the conditions of the supervision order (that had nothing to do with the pendency of the appeal). Still, I would like to see a failure to appear prosecution so that the court can maybe clarify this area of the law. Unfortunately, limitations have likely run under facts as presented (although I have previously argued that failure to appear is a continuing offense).

A review of the cases makes it apparent that, absent a motion to revoke, this defendant will get to slide. The sentencing court lost its jurisdiction to enforce the conditions of community supervision when the probation term ran out. The FTA, however, was filed while the probation term was in effect, so I think we have a good case there. The other problem is making sure steps are in place to make sure that mandates get to the right folks when received so this doesn't happen again! Thanks.

I have been told that Section 38.10(b) which states "it is a defense to prosecution under this section that the appearance was incident to community supervision, parole, or an intermittent sentence" means you can NOT indict for failure to appear if defendant fails to show for a court date regarding his motion to revoke or adjudicate. If that is true, then how could you prosecute the failure to appear?

I think Sec. 38.10 (b) provides a defense for failure to report to a probation officer or appear for a weekend jail sentence since these failures can be addressed in a motion to revoke/adjudicate. This defense would not apply to a failure to appear in court when the case is on the docket.

Martin, have you successfully argued that failure to appear is a continuous act for SOL purposes?

What I succeeded in doing was convincing defense counsel to waive determination of the motion to quash the indictment and the Defendant pleaded guilty to a six-year term for bail jumping (charged as a second degree offense under 12.42(a)(3)) on 3-31-03. The Defendant waived appeal and so far has not filed an 11.07 writ. I am faxing you a copy of my brief in that case. This was in the same case mentioned in an earlier post in which the court had refused to sentence the Defendant (in a possession of cocaine case) in accordance with our recommendation (7-year sentence) after the Defendant failed to appear for sentencing (which ultimately resulted in dismissal of the cocaine case because the evidence necessary to convict had been lost in the interim-- a fact which the court should have taken into account before it allowed the Defendant to withdraw his guilty plea). I consider that a qualified "success", though it did not result in a Texas precedent.

There seems to be two tracks of opinions on the situation I originally posted: probationary period expiring after an appellate court mandate is issued without capias or commitment issuing. One track says that the trial court has a limited and special jurisdiction to ensure that the judgment of the appellate court is carried out after a conviction is affirmed (but no authority as to how long that jurisdiction is in effect). The other track says that the probation commences upon issuance of the mandate, but no cases on point as to whether or not the trial court can enforce the original misdemeanor probation sentence if nothing happens during that probationary term (unlike the due diligence question with revocations). Case of first impression?