Opinion
No. AP-75,466
Delivered: June 28, 2006. DO NOT PUBLISH.
On Application for Writ of Habeas Corpus, Cause Number 99-01-0002M-Cr in the 97th Judicial, District Court Montague County.
OPINION
This is an application for a writ of habeas corpus that was transmitted to this Court by the clerk of the trial court pursuant to the provisions of Article 11.07, Section 3, of the Texas Code of Criminal Procedure. Ex parte Young, 418 S.W.2d 824, 826 (Tex.Crim.App. 1967). Applicant pled guilty to aggravated assault. The trial court deferred a finding of guilt and placed Applicant on community supervision for three years. During the period of supervision, the State filed a motion to adjudicate. Applicant's community supervision was not revoked but modified and extended for one year. Later, Applicant was charged in two separate indictments with manufacturing methamphetamine. The State filed another motion to adjudicate in the aggravated assault case. Then, after Applicant's community supervision was to have expired, the State filed an amended motion to adjudicate. On September 27, 2004, Applicant entered negotiated guilty pleas on the two drug charges and was sentenced to eighteen years in prison. The Court then proceeded on the amended motion to adjudicate guilt. At that hearing, the State requested to waive proceeding on the amended motion and to proceed on the original motion. After two discussions off the record, the State requested to proceed on the amended motion to which Applicant pled true. The court adjudicated Applicant guilty and assessed punishment at eighteen years' confinement to run concurrently with the two other eighteen-year sentences. There was no direct appeal. Applicant later challenged the aggravated assault conviction in a writ application contending that counsel provided ineffective assistance. He claimed that counsel erroneously allowed him to plea true to the amended motion to adjudicate that was void. He also stated that had he been properly represented, he would not have pled true. In considering Applicant's claim, the trial court elected to appoint habeas counsel and to conduct an evidentiary hearing. After the hearing, the trial court made findings of fact and conclusions of law. The court found that Applicant received erroneous legal advice concerning the motion to adjudicate guilt and that Applicant's plea of true was not knowing and voluntary. As the trial court found, ". . . the state's amended motion to proceed with adjudication of guilt in Cause No. 99-01-0002M-CR was a nullity and void because it was filed after the community supervision period, including the extended community supervision period, had already expired and no capias or warrant was ever issued thereupon." It has recommended that relief be granted. We agree. The trial court's recommendation is supported by the record and applicable law. See Crockett v. State, 840 S.W.2d 160, 162 (Tex.App.-Houston [1st Dist.] 1992, no pet.) (finding an amended motion to revoke, filed after the expiration of the probationary period, to be void), citing Guillot v. State, 543 S.W. 2d 650, 653 (Tex.Crim.App. 1976) (stating that "an amended motion to revoke filed after the expiration of the probationary period [does] not confer jurisdiction on the court and was a nullity"); Wright v. State, 640 S.W.2d 265 (Tex.Crim.App. 1982) (stating that when a probationer is returned to probation, probation may not be revoked without any determination of a new violation); Chreene v. State, 691 S.W.2d 748, 750 (Tex.App.-Texarkana 1985, pet. ref'd) (the right of the trial court to revoke was limited to finding a violation alleged in the original revocation motion and could not be based on an amended revocation motion filed after the end of the probation period). Thus, we hold that the conviction and sentence for aggravated assault in cause number 99-01-0002M-CR from the 97th Judicial District Court of Montague County, Texas, is vacated; there is no final felony conviction in the cause. A copy of this opinion shall be forwarded to the Department of Criminal Justice, Institutional Division. Keller, P.J., Dissents. Cocharan, J., Joins.
Without the benefit of a full record, this Court grants relief on the ground that jurisdiction did not attach to a State's amended motion to adjudicate guilt. The record before us indicates that the original motion was timely filed, that the parties and the court agreed that a portion of the amended motion contained allegations identical to those in the original motion, and that the defendant pled true to that portion of the amended motion, in accordance with a plea agreement, while knowing this state of affairs. Under the circumstances, I cannot agree with the Court's disposition. At the hearing on the motion to revoke, the State announced that it would rely upon the original motion. After an off-the-record discussion, the trial court said that instead of the State moving to dismiss the amended motion, it would move to dismiss "count one of the first amended motion." The following then occurred:
THE COURT: We have had a brief discussion off the record as to whether or not an amended motion to proceed with adjudication of guilt could be filed after the expiration date of the probationary period. Now, Mr. Dobyns, do you understand what that discussion was about?
THE DEFENDANT: Yes, sir.
. . .
THE COURT: If, in fact, the motion was unenforceable as a result of that, would that alter your plea bargain agreement? Would it alter your decision to plead guilty in Cause No. 04-05-0059M-CR, or would it alter your decision to enter a plea of guilty in Cause No. 04-08-0106M-CR?
THE DEFENDANT: No, sir.
. . .
THE COURT: In effect, the amended motion, when count one is deleted, then, is identical to the prior motion to proceed with adjudication of guilt except the numbering counts are different, is that correct?
MR. BRATTON [defense counsel]: Yes, sir.The court began reading the allegations to applicant, and just after the court asked if he needed to read each of allegations 5 through 57, there appears to be a page missing from the record. It resumes with the court finding the allegations true. In accordance with the plea agreement, by which applicant disposed of these three cases and one unadjudicated case, he was sentenced to 18 years. The file does not contain the trial attorney's affidavit, which might shed more light on these proceedings. There is this reference to the affidavit in the writ hearing, by the prosecutor:
We haven't seen Mr. Bratton's affidavit and, honestly, we may not need to file, but would like to file an affidavit if necessary.Before granting relief and at least implicitly finding Mr. Bratton ineffective, we should determine the reasons for his conduct. Moreover, I find nothing in the record before us to warrant granting relief. We have said that in order for a court to have jurisdiction to revoke probation, the motion to revoke must be filed before the end of the probationary period, and in this case a motion to revoke was timely filed. In Guillot we also said that "the right of the court to revoke is limited to those violations of probation alleged in the revocation motion filed prior to the expiration of the probationary period." Again, that is exactly what happened in this case — applicant's probation was revoked on the basis of allegations made prior to the expiration of the probationary term. There was nothing wrong with this adjudication because the motions were substantively identical, and the trial court found all the allegations true anyway. Applicant agreed to the deal after being told explicitly that there might be an issue about the amended motion. Given these circumstances, applicant is not entitled to relief. I respectfully dissent.
Guillot v. State, 543 S.W.2d 650, 652 (Tex.Crim.App. 1976).
Id.