Opinion
No. 06-20-00135-CR
05-26-2021
The STATE of Texas, Appellant v. Melody BRONSON, Appellee
Mark Scott, for Appellee. Jessie R. Allen, John C. Creuzot, Dallas, for Appellant.
Mark Scott, for Appellee.
Jessie R. Allen, John C. Creuzot, Dallas, for Appellant.
Before Morriss, C.J., Burgess and Stevens, JJ.
OPINION
Opinion by Chief Justice Morriss
The State of Texas appeals from the trial court's order suspending execution of Melody Bronson's prison sentence and placing her on community supervision (shock probation). The State argues that the trial court was without jurisdiction to grant shock probation outside of the 180-day period described by Article 42A.202 of the Texas Code of Criminal Procedure. Because we agree, we vacate the trial court's order of shock probation. We further remand this case to the trial court to execute the sentence previously assessed.
Originally appealed to the Fifth Court of Appeals, this case was transferred to this Court by the Texas Supreme Court pursuant to its docket equalization efforts. See Tex. Gov't Code Ann. § 73.001. We follow the precedent of the Fifth Court of Appeals in deciding this case. See Tex. R. App. P. 41.3.
Bronson pled guilty to theft of at least $150,000.00, but less than $300,000.00, a second-degree felony. See TEX. PENAL CODE ANN. § 31.03(e)(6). On February 28, 2020, the trial court convicted Bronson of the offense, sentenced her to four years' imprisonment, and ordered her to pay $279,209.38 in restitution. Less than six months later, on August 19, Bronson filed a motion for shock probation. See TEX. CODE CRIM. PROC. ANN. art. 42A.202. In October, the State moved to dismiss Bronson's request for shock probation for want of jurisdiction. Even so, on November 25, the trial court granted Bronson's motion, suspended her remaining sentence, and placed Bronson on community supervision for ten years.
Trial courts retain jurisdiction to grant shock probation "for 180 days from the date the execution of the sentence actually begins." TEX. CODE CRIM. PROC. ANN. art. 42A.202(a). As a result, an order placing a defendant on shock probation outside of the 180-day period is void. Rice v. State , 971 S.W.2d 533, 535 (Tex. App.—Dallas 1997, no pet.) (citing Tamez v. State , 620 S.W.2d 586, 589–90 (Tex. Crim. App. 1981) ); see Ex parte Busby , 67 S.W.3d 171, 174 (Tex. Crim. App. 2001) (even if defendant makes proper and timely request for shock probation, order signed after court loses jurisdiction is void), overruled on other grounds by Ex parte Hale , 117 S.W.3d 866, 872 (Tex. Crim. App. 2003) ; State ex rel. Bryan v. McDonald , 642 S.W.2d 492, 493 (Tex. Crim. App. 1982). It is undisputed that the shock probation was orally granted 245 days after the sentence began and that the judgment placing Bronson on community supervision was signed 281 days after the sentence began.
Even so, Bronson argued that the trial court could rely on the Texas Supreme Court's Eighteenth, Twenty-Sixth, and Twenty-Ninth Emergency Orders Regarding the Covid-19 State of Disaster to impose the shock probation outside of the 180-day period.
Subject only to constitutional limitations, all courts in Texas may in any case, civil
or criminal—and must to avoid risk to court staff, parties, attorneys, jurors, and the public—without a participant's consent: ... modify or suspend any and all deadlines and procedures, whether prescribed by statute, rule, or order.
Eighteenth Emergency Order Regarding the Covid-19 State of Disaster, Misc. Docket No. 20-9080, (Tex. June 29, 2020); Twenty-Sixth Emergency Order Regarding the Covid-19 State of Disaster, Misc. Docket No. 20-9112 (Tex. Sep. 18, 2020); Twenty-Ninth Emergency Order Regarding the Covid-19 State of Disaster, Misc. Docket No. 20-9135 (Tex. Nov. 11, 2020); see TEX. GOV'T CODE ANN. § 22.0035(b) (permitting supreme court to modify or suspend procedures for the conduct of any court proceeding affected by a disaster during the pendency of a disaster declared by the governor). The State argues that the emergency orders could not enlarge the trial court's jurisdiction. We agree.
The Texas Court of Criminal Appeals recently wrote:
This language giving a court the power to modify or suspend "deadlines and procedures" presupposes a pre-existing power or authority over the case or the proceedings. A court may extend a deadline or alter a procedure that would otherwise be part of the court proceedings. It does not suggest that a court can create jurisdiction for itself where the jurisdiction would otherwise be absent or that a judge could create authority to preside over proceedings over which the judge would otherwise be barred from presiding.... If the Supreme Court's Emergency Order were really intended to permit trial courts to enlarge their own jurisdiction ..., we would expect a provision to explicitly say so. It is true that ... [the Emergency Order] says "subject only to constitutional provisions," but that is still not an explicit statement that courts and judges have the ability enlarge their jurisdiction and authority over proceedings.
In re State ex rel. Ogg , 618 S.W.3d 361, 365 (Tex. Crim. App. 2021). Applying Ogg , our sister court has recently determined that a trial court's jurisdiction to grant shock probation cannot be extended beyond the 180-day period in Article 42A.202 by the Texas Supreme Court's emergency orders. State v. Temple , Nos. 14-20-00388-CR & 14-20-00389-CR, ––– S.W.3d ––––, ––––, 2021 WL 1185791, at *3 (Tex. App.—Houston [14th Dist.] Mar. 30, 2021, pet. filed) ("the First Emergency Order does not by its terms extend a trial judge's authority to order shock probation beyond 180 days after a defendant begins serving a felony sentence"). We agree with our sister court's reasoning in Temple , and likewise conclude that the Texas Supreme Court's emergency orders "do[ ] not allow a court to create jurisdiction for itself when jurisdiction would otherwise be absent." Id. at ––––, 2021 WL 1185791, at *3. As a result, the trial court was without jurisdiction to grant Bronson's motion for shock probation. See Rice , 971 S.W.2d at 535.
We vacate the trial court's order of shock probation, leaving in place the original November 2020 judgment. We further remand this case to the trial court to execute the sentence previously assessed.