Opinion
No. 05-10-01284-CR No. 05-10-01285-CR No. 05-10-01352-CR No. 05-10-01353-CR
01-31-2012
RICHARD LOUIS BUTLER, JR., Appellant v. THE STATE OF TEXAS, Appellee EX PARTE RICHARD LOUIS BUTLER, JR.
AFFIRM; Opinion issued January 31, 2012
On Appeal from the Criminal District Court No. 2
Dallas County, Texas
Trial Court Cause Nos. F02-46758-I, F02-46759-I, WX10-90028-I and WX10-90029-I
MEMORANDUM OPINION
Before Justices Moseley, Francis, and Myers
Opinion By Justice Francis
Richard Louis Butler Jr. appeals his convictions for possession of less than one gram of cocaine and unauthorized use of a motor vehicle. He also appeals the denial of the relief sought in his applications for writ of habeas corpus involving the same two convictions. In his sole issue, appellant argues the trial court lacked jurisdiction to proceed to adjudication of his guilt in each case because his original five-year period of community supervision expired before the court acted to adjudicate. Because his community supervisions were extended within the statutory ten-year time period, after a timely filed motion to proceed and capias had issued in each case, the trial court retained jurisdiction over the cases and properly extended the periods of supervision. We affirm.
In his sole issue, appellant contends the trial court lacked jurisdiction to hear the motion to proceed with adjudication in each case because “the extension on the period of community supervision was void.” Appellant's argument centers around the date the extended probation period in each case began. Appellant contends the extended period of probation was required by law to begin the day after his original probation expired and therefore the trial court improperly ordered the extended period to begin the date of the hearing in the trial court. And if the law requires the extended period to begin at the earlier date, the subsequent motion to proceed filed by the State would be after the expiration date, and appellant's revocation improper.
On March 4, 2003, appellant was placed on deferred adjudication for five years for the state jail felony offenses of possession of cocaine and unauthorized use of a motor vehicle. On October 22, 2007, the State filed a motion to proceed with adjudication of guilt and a capias issued in each case. Almost a year later, on October 1, 2008, the State withdrew each motion; the trial court modified supervision and extended the probation period two years, with the extended period to begin October 1, 2008. On May 13, 2010, the State filed another motion to proceed with adjudication of guilt in each case and on September 20, 2010, appellant filed applications for writ of habeas corpus seeking relief from the adjudication proceedings. On September 27, 2010, appellant entered pleas of true to the violations of his deferred adjudication in each case but objected to the trial court's jurisdiction to proceed on the motions. The trial court overruled the objection and denied relief in each writ of habeas corpus. The court adjudicated appellant's guilt in each case, sentenced him to two years in the state jail but suspended sentence and placed appellant on community supervision for five years.
After being placed on community supervision on March 4, 2003, appellant's original period of community supervision would have expired on March 3, 2008 but for the motion to proceed with adjudication filed by the State on October 22, 2007. While the trial court properly heard the cases on October 1, 2008, appellant argues the court had to order the extended period of supervision to begin the day after the original five-year term expired, March 4, 2008, and could not legally start the extension on October 1, 2008, the date of the hearing. If the period of community supervision had ended two years later, March 4, 2010, the State's May 13, 2010 motions to proceed would have been untimely and appellant not subject to adjudication. Thus, appellant contends the trial court's extension orders are void for failing to begin the day after the original five-year period of deferred adjudication would have expired but for the filing of the motions to proceed with adjudication of guilt.
As to appellant's complaint the trial court's orders were void or constituted fundamental error, appealable at any time, appellant agrees that under the Texas Code of Criminal Procedure, although the maximum period of community supervision a judge may impose in a state jail felony case is five years, “the judge may extend the maximum period of community supervision under this section to not more than 10 years.” Tex. Code Crim. Proc. art. 42.12, § 15(b) (West Supp. 2012). In addition, a “judge may extend a period of community supervision under this section at any time during the period of community supervision, or if a motion for revocation of community supervision is filed before the period of community supervision ends, before the first anniversary of the expiration of the period of community supervision.” Id.
Appellant does not dispute that the trial court had the legal authority to extend his period of community supervision for up to ten years, a period of time not exceeded here. He also agrees the motion to proceed with adjudication and the capias filed in each case issued before the original five- year period of supervision expired. He acknowledges the lack of authority supporting his argument that the order extending community supervision must necessarily begin the day after the original period ends and instead highlights two cases that specifically reference the extension date as beginning on the anniversary date of the end of the original term of community supervision. After reviewing those cases, we note the facts of the cases differ from those in the instant offenses and, while the extensions of community supervision in those cases did begin the day after the original period expired, they do not stand for the proposition asserted here by appellant that such occurrence is mandatory. We conclude appellant's argument that the trial court's October 1, 2008 orders were void and were an attempt to extend the period of community supervision to a date not authorized by statute is without merit.
We affirm the trial court's judgments and the orders denying the relief sought by his writs.
MOLLY FRANCIS
JUSTICE
Do Not Publish
Tex. R. App. P. 47
101284F.U05