Yes, it is correct that a shock probation order is not appealable as an illegal sentence. See State v. Ramirez, 62 S.W.3d 356, 357 (Tex. App.--Corpus Christi 2001, no pet.) However, our neighbor Cameron County tried the mandamus approach in this situation and lost. Our local COA held that mandamus was not available because the State could appeal an order granting shock probation under 44.01(a)(2) as an order that arrests or modifies a judgment. State ex rel. De Leon v. Euresti, 89 S.W.3d 195 (Tex. App.--Corpus Christi 2002, orig. proceeding). As far as I know, this is still good law. Thus, I believe we can appeal, I'm just not sure of the long-term wisdom of pursuing such an appeal.

Thanks!

How can it ever be a bad idea to require a judge to follow the law? Surrendering to the notion that a judge should be permitted to disobey the law and set aside a jury's verdict simply out of his own personal preference is dangerous. It makes the judge bolder in his belief that he is a law unto himself.

Cam, how can a judge give a deferred adjudication after a jury verdict and it not be illegal? Under CCP Art. 42.12 Sec. 5 a judge may only give a defendant deferred adjudication following a plea of nolo or guilty. Surely, the defendant's plea to the jury was not guilty.

I've edited some of the contents of the opinion and the footnotes, but here's how they decided the case in Amarillo:

"From a guilty plea before the jury, the appellee Sammy Mireles was convicted of burglary of a habitation. The trial court then found evidence substantiating appellee's guilt and deferred adjudication of his guilt. The court placed appellee on probation for ten years, conditioned upon his observance of certain enumerated probationary terms. The State attempts to appeal from a judgment granting the appellee deferred adjudication. See Tex. Code Crim. Proc. Ann. art. 44.01(b) (Vernon Supp. 1998). In its brief, the State contends the trial court abused its discretion in rendering a judgment granting the appellee deferred adjudication because that punishment constitutes an illegal sentence. Concluding that we have no jurisdiction to entertain the State's attempted appeal, we will dismiss for want [*2] of jurisdiction.

In his brief, the appellee contends that we lack subject matter jurisdiction to entertain this appeal. In this regard, the appellee points out that, even though the State may appeal an illegal sentence under article 44.01(b) of the Code, no sentence was rendered in this instance. 1 This is because, appellee contends the trial court, in deferring adjudication, did not levy a sentence or convict him of a crime. Consequently, the issue presented in this appeal is whether an order deferring adjudication of appellee's guilt constitutes a sentence within the meaning of article 44.01(b) and is appealable by the State.

The instant record shows that appellee plead guilty before the jury and was convicted of burglary of a habitation. During closing arguments, the State argued that since appellee had been convicted by the jury, he was not eligible for [*3] deferred adjudication. After the trial court made its findings and assessed punishment, the State objected because the sentence was illegal. The trial court concluded that article 42.12 section 5 of the Code gave it the authority to grant appellee deferred adjudication.

With few exceptions, the State's right to appeal is restricted to orders dismissing an indictment or complaint, granting a new trial, arresting or modifying a judgment, granting certain motions to suppress, and sustaining a plea of former jeopardy. Art. 44.01(a); Strain v. State, 934 S.W.2d 424, 426 (Tex. App.--Amarillo 1996, no pet.) The State is further authorized to appeal "a sentence in a case on the ground that the sentence is illegal."(Emphasis added). Art. 44.01(b).

When deferred adjudication is granted, the trial court, as a matter of law, does not levy a sentence or convict the defendant of any crime. Ex parte Hernandez, 705 S.W.2d 700, 702-03 (Tex. Cr. App. 1986)(determining that when an adjudication is deferred, no sentence is imposed); McNew v. State, 608 S.W.2d 166, 172 (Tex. Cr. App. 1978)(the granting of deferred adjudication does not constitute a conviction); see also [*4] Strain v. State, 934 S.W.2d at 426.

In this case, the trial court entered an order deferring the adjudication of appellee's guilt. By doing so, the trial court did not impose a sentence against the appellee. Hence, because no sentence was imposed and the State is only authorized to appeal if the sentence is illegal, we are without jurisdiction over the attempted appeal. Strain v. State, 934 S.W.2d at 426. Consequently, we only have authority to dismiss the attempted appeal. Ex parte Johnson, 652 S.W.2d 401, 403 (Tex. Cr. App. 1983). 2

FOOTNOTES

2 If the State is correct in its theory that the punishment is not authorized by law, mandamus is a possible remedy. Millsap v. Lozano, 692 S.W.2d 470, (482 Tex. Crim. 1985)(mandamus will issue to compel vacation of a void order).


We acknowledge that the courts in State v. Gonzalez, 894 S.W.2d 857, 858 (Tex. App.--Corpus Christi, 1995, no pet.) and in State v. Sosa, 830 S.W.2d 204, 205 (Tex. App.--San Antonio, 1992, pet. ref'd) have exercised jurisdiction [*5] over the State's appeals of the trial courts' orders granting deferred adjudication on the ground that the sentences in each instance were illegal. In Gonzales, the Corpus Christi court found the sentence was illegal. However, the San Antonio court found the sentence was legal. Nevertheless, in this instance, we consider those cases neither controlling nor persuasive, and we adhere to and follow our previous determination in Strain v. State, 934 S.W.2d at 424.

Accordingly, we dismiss the State's attempted appeal for want of jurisdiction.

Carlton B. Dodson

Justice

Why didn't the defendant just plead to the judge and save a jury trial?

I was not the prosecutor on the particular case, but I think the State refused to waive a jury trial to avoid the defendant getting a deferred to begin with. The likelihood that the judge would give the deferred was high.

JB, I completely agree that it would "never be a bad idea to require a judge to follow the law." However, in this case, the statute in question is--arguably--somewhat unclear. I would rather not go into detail here, but compare sections 6 and 10 of art. 42.12.

I have already done some research on the issue and have not found a case providing a definitive answer under the current version of 42.12. The best argument is the language of the section 10 and the fact that judges used to be explicitly authorized to grant shock probation after a jury sentence for certain offenses. However, the Leg. removed that authorization from the statute in 1993, apparently in reaction to public outrage that a judge who had been convicted of bribery and sentenced by a jury to serve time was shocked out by one of his fellow judges (which is exactly the situation we are dealing with in this case, albeit with an IA conviction).

As I'm sure you know, when the State appeals, it had better have a pretty airtight case particularly when it is asserting that a judge exceeded his authority. If we file this appeal and lose, the result will be case law telling judges that they can shock out defendants who have been sentenced by a jury to serve time. Maybe that would not be a problem in your jurisdiction but I can assure you it would be a disaster for us.

That is why I have asked everyone out there for any research, case law or good ideas they might have on this issue. This case has the potential to affect us all, so speak now or forever hold your peace!

Thanks for your interest in our case.

I feel quite confident that the law does not permit a judge to grant shock probation in a case in which sentencing was done by the jury. There is no case out there stating that conclusion because no judge has been so bold as to disregard a jury's verdict or disobey the law.

And you should not be afraid of how the case will come out in the court of appeals. First, I am confident it would say the judge can't do it. Second, even if an appellate court somehow mangles the meaning and permits it, that would be a darn good reason for the Legislature to speak more clearly at the next session.

I realize that some judges have more respect for a jury verdict than others. But, that is all the more reason to make the fight public.

Wes,

Is your research short enough that you could just paste it into a post? More people need to be reading it, apparently.

quote:

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Originally posted by JB:
Wes,

Is your research short enough that you could just paste it into a post? More people need to be reading it, apparently.

---

You tell me. Here it is.

Before 1993, the Code of Criminal Procedure did authorize the judge to probate a jury assessment of punishment, even where the jury did not recommend it. See Acts 1965, 59th Leg., R.S., ch. 722, sec.1. The provision was, however, specifically set out in the language of the statute: "Nothing herein shall limit the power of the court to grant a probation of sentence regardless of the recommendation of the jury." Moreover, prior to the enactment of this statute, the trial court did not have the authority to suspend a sentence unless recommended by a jury. Whitehead v. State, 286 S.W.2d 947, 948 (Tex.Cr.App. 1956).

In 1989, the above-mentioned provision appeared in Code of Criminal Procedure art. 42.12, sec.3c. The legislature deleted sec. 3c, but added near-identical language back into the statute in sec.4 (Jury Recommended Probation), subsection (c): "This section does not prohibit a court from granting probation in a case if the jury in the case does not recommend probation." Acts 1989, 71st Leg., R.S., ch. 785, sec.4.17.

Then, in 1993, along with numerous other changes and codifications of and to the penal laws, 42.12 was amended to essentially rewrite both section 3 (Court Ordered Community Supervision) and section 4 (Jury Recommended Community Supervision). At that time, the above-quoted language from sec.4(c) was deleted, and no similar language was added.

Note that the provision in sec.3 which begins, "A judge, in the best interest of justice, the public, and the defendant, after conviction or a plea of guilty or nolo contendere, may suspend the imposition of the sentence..." is essentially the same in both the old and revised version. I mention this because the phrase "after conviction" could be interpreted as including the results of a jury trial (and clearly does include jury convictions where punishment is to the court), and this portion of the statue is the only part that could arguable authorize the court to suspend sentence after a jury punishment assessment, since it does not specifically refer to the "sentence" as being by the judge or the jury. But the fact that the previous version of the statute was nearly identical, but included the court-probation override provision, the current version's lack of such a provision indicates the legislature's intent to remove that authority from the judge.

I have found one unpublished opinion that dealt, somewhat obliquely, with the issue, Robertson v. State, 05-96-00702-CR (Tex.App.--Dallas, Aug, 12, 1998). The jury asked whether the judge had to option to probate the sentence if they gave 10 years or less. The judge said, "No." The Court of Appeals holds that the response was correct because the Jury was instructed under 42.12, sec.4, not sec.3. The concurring opinion by Justice Miller would have held that the law is essentially as I have described it above.

I'm faced with trying to undo an unauthorized grant of shock probation (b/c jury assessed sentence).

I'm trying to find a vehicle to correct this mistake. Waaay too late for direct appeal and if Ex rel De leon (89 sw3d 195) is correct, mandamus won't lie b/c direct appeal was (at least once upon a time) an available alternative remedy.

So I'm wondering . . . is the shock probation order void? And if it's void, can the trial court undo its mistake by just issuing a warrant for the guy to be returned to prison (assuming I can convince the judge to voluntarily correct this mistake)?

I know from my research that a shock probation order issued outside of the 180-day time period is void b/c the court doesn't have jx outside of that period.

Seems to me that if the judge never had authority to grant shock probation, then his jx over the case expired 75 days out, right? If that's the case, wouldn't the order be void?

Also, if the order is void and, thus, the court doesn't have jx over the case, does the court have jx or power to do anything, i.e., fix his mistake by issuing a warrant?

All of your questions are complicated by the notion that an "illegal" probation is not a "void" sentence. As that notion applies to the State, read State v. Enriquez, 47 SW3d 177, saying the State can't use a direct appeal to challenge the illegal probation for the first time. That outcome might have been different if a prosecutor had complained at the time of sentencing.

Did someone complain when the judge granted shock probation?

the prosecutor didn't object. In fact, they told the jg they were fine with it.

If I don't call the shock order an illegal "sentence," and instead characterize it as simply an act by a court without jx over the case - do you think I could get around Enriquez et al? Or am I just splitting hairs?

Well, look at it this way. If a defendant makes the same mistake (agreeing to an "illegal" probation) and then gets revoked, do you want the defendant to be able to challenge the sentence as void? Probably not. That's why we all cheered the case of Ex parte Williams, 65 SW3d 656, when the CCA told that defendant he couldn't raise the issue for the first time in a postconviction writ of habeas corpus.

The moral of all of this seems to be: complain at the time of the illegal probation.

I hadn't thought of the flip side of that argument. That wouldn't be good.

Absent a time machine (so I can go body tackle the DA before he agrees to shock probation), I'm sensing we're up the proverbial creek without a paddle.

Oh, you will have a paddle when the defendant violates the conditions of his illegal probation. Defendants have a way of finding justice. Meanwhile, use the case as a teaching tool.

First, please read the press release from our office (Dallas Crim. Dist. Att.) that was posted on this site today. Second, following this thread, how did the judge in Karnes County have the authority to grant shock probation when he was not the sentencing judge? (The jury rejected probation and assessed 5 and 10 years in TDCJ) According to this thread, it does not appear he could do that. Finally, why didn't the prosecutors in Karnes County fight this?

Just wondering.

JAMIE

Well, the consistent factor in all of these cases is a prosecutor who does not object to the judge doing an illegal act when the judge is granting shock probation following a jury sentencing.

It is an interesting question as to whether someone other than the prosecutor in the case can challenge an illegal sentence under those circumstances. Politically, I suppose everyone can complain. And, frankly, that was why years ago there was a more explicit statute prohibiting judges from granting shock probation (followed by a list of offenses that were included in that prohibition).

[This message was edited by JB on 02-01-08 at .]

Many people are surprised when this is done, but though infrequently used the practice of the judge imposing probation appears to be fairly well settled law in Texas. For a recent case discussing the legal rationale behind this (and upholding the practice) see: "Ivey v. State", WL4245892 (Tex.App-Austin 2007).

Interestingly, in "Ivey" it was the convict who was appealing. He, like many convicts, wanted his straight time and be done with it. The judge felt that continued monitoring/treatment (i.e. probation, interlock, etc.) would be in the "public interest." So the judge had him do 30 days and then imposed probation (the jury had given him a straight 35 days). It was a misdemeanor DWI case, but of course the judge can do the same with felonies - recently there was a public flap over a judge doing this with a person involved in the 'Texas 7' escape plan. It should be noted, the judge can only do this "in accordance with this chapter" (or words to that effect, don't have O'Connor handy), which means that most felons won't be eligible. IIRC there can't be a prior felony, it can't be a 3(g) offense, etc. etc.

from the keycite for "Ivey":
trial court did not change jury's assessment of punishment, but rather, exercised express statutory authority to suspend imposition of sentence, place defendant on probation, and impose conditions on probation. Vernon's Ann.Texas C.C.P. art. 42.12 .

Yes, we are aware of Ivey. The opinion fails to deal with the legislative history of the probation laws, including the repeal of the authority to probated sentences after a jury imposes them.

Furthermore, as the dissent notes (the dissent came out on rehearing), such action overwhelms the defendant's right to a jury trial on the issue of punishment. Finally, note in the dissent that the judge very wrongfully consulted with the jury before issuing shock probation. That sounds rather unethical.

I spoke with the lawyer for the defendant and understood that the defendant wanted to seek PDR. I don't see any history of that yet, but I would think such a PDR would have a pretty good chance of being granted.

The whole thing seems so pointless for the judge to do.

DISSENTING OPINION

Because I conclude that the trial court erred and was without authority to set aside the jury's verdict assessing punishment and sua sponte place appellant on probation, I respectfully dissent.

The right to trial by jury is a fundamental right guaranteed by the Sixth and Fourteenth Amendments to the United States Constitution and by the Texas Constitution. See U.S. Const. amends. VI, XIV; Tex. Const. art. I, � 15; see also Tex. Code Crim. Proc. Ann. arts. 1.05, .12 (West 2005). It is well established, however, that the constitutional right to trial by jury does not encompass the right to have a jury assess punishment. Barrow v. State, 207 S.W.3d 377, 380 (Tex. Crim. App. 2006); Tinney v. State, 578 S.W.2d 137, 138 (Tex. Crim. App. 1979). But in Texas an accused does have a statutory right to have the jury assess punishment. Tex. Code Crim. Proc. Ann. art. 37.07, � 2(b) (West 2006); Washington v. State, 677 S.W.2d 524, 527 (Tex. Crim. App. 1984), overruled on other grounds by Bell v. State, 994 S.W.2d 173 (Tex. Crim. App. 1999); Sterry v. State, 959 S.W.2d 249, 257 (Tex. App.--Dallas 1997, no pet.). This valuable right may not be taken away without due process of law. Ex parte Moser, 602 S.W.2d 530, 533 (Tex. Crim. App. 1980) (legislature having statutorily created assessment of punishment by jury may alter or abolish procedure within bounds of due process and other constitutional procedures), overruled on other grounds by Polk v. State, 693 S.W.2d 391 (Tex. Crim. App. 1985). Due process involves fundamental notions of fair play and justice. See Armstrong v. State, 897 S.W.2d 361, 368 (Tex. Crim. App. 1995). If a jury assesses a punishment authorized by law, the trial court has no power to change that punishment.

Appellant duly and timely filed his written election to have the jury assess punishment. See Tex. Code Crim. Proc. Ann. art. 37.07, � 2(b)(2) (West 2006). 1 The same jury that found appellant guilty of a class B misdemeanor of driving while intoxicated was the trier of fact at the punishment phase of the trial.

FOOTNOTES

1 Appellant did not file a sworn motion for probation asking the jury to grant probation. Tex. Code Crim. Proc. Ann. art. 37.07, � 2(b)(1) (West 2006). There was no issue of probation before the jury at the penalty stage of the trial.


Appellant testified at the hearing that he had never been arrested before, had no criminal record, had rejected the State's earlier offer of probation, and did not want probation. The jury returned its verdict assessing appellant's punishment at 35 days in the county jail and a fine of $ 2,000. The verdict was received by the trial court. The jury was then discharged and instructed to proceed to the jury room where the trial judge said she would meet with them and answer questions.

Returning to the bench after meeting with the jury and a brief recess, the trial court repeated the verdict of the jury and announced that "[u]nder the powers that exist for judges in the Code of Criminal Procedure, I am going to instead place Mr. Ivey on probation." The trial court, "after speaking with the jury," stated that it was the jury's "intent" that appellant receive "some services in the community." The trial court then announced that it was probating the "jury's sentence" to two years' probation, probating $ 1,500 of the fine, and ordering as a "condition of probation" that appellant serve 30 days in jail, complete 60 hours of community service, and have an "ignition interlock" installed.

The trial court was without authority under the law to substitute the court as the trier of fact as to punishment under the circumstances. Although article 42.12, section 3 of the code of criminal procedure gives a trial court authority to order probation in limited circumstances, nothing in that provision gives the trial court the authority exercised here, nor has the statute been so interpreted. See Tex. Code Crim. Proc. Ann. art. 42.12, � 3 (West 2006). Because appellant was deprived of his valuable statutory right to have the jury decide his punishment, I would reverse and remand the cause to the trial court to have a judgment entered based on the jury's verdict.

Jan P. Patterson, Justice

[This message was edited by JB on 02-03-08 at .]