Timothy Shaun Ford v. The State of Texas--Appeal from 124th District Court of Gregg County

In The

Court of Appeals

Sixth Appellate District of Texas at Texarkana

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No. 06-04-00036-CR

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TIMOTHY SHAUN FORD, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 124th Judicial District Court

Gregg County, Texas

Trial Court No. 29831-B

Before Morriss, C.J., Carter and Hadden*, JJ.

Memorandum Opinion by Chief Justice Morriss

*Roby Hadden, J., Sitting by Assignment

MEMORANDUM OPINION

Within five weeks of being placed on community supervision for the state jail felony of possessing a small quantity of cocaine, // Timothy Shaun Ford violated a term of his community supervision by, he admits, using marihuana. The trial court revoked his community supervision and assessed Ford's sentence at one year's confinement. In a single point of error, Ford argues the trial court abused its discretion by revoking his community supervision instead of continuing supervision and requiring him to complete drug treatment as described in Article 42.12, Section 15(c)(2) of the Texas Code of Criminal Procedure. See Tex. Code Crim. Proc. Ann. art. 42.12, 15(c)(2) (Vernon Supp. 2004 2005). // We disagree and affirm the trial court's judgment.

Ford's contention that the trial court was required to order drug treatment rather than confinement is based on Article 42.12, Section 15(c)(2) of the Texas Code of Criminal Procedure, which states,

Except as otherwise provided by Subdivision (3), a judge who places a defendant on community supervision for an offense listed in Subsection (a)(1) shall require the defendant to comply with substance abuse treatment conditions that are consistent with standards adopted by the Texas Board of Criminal Justice under Section 509.015, Government Code.

Id. The statutory language "shall require" makes the substance abuse treatment provision a mandatory condition of community supervision, unless the trial court finds, as set out by subdivision (3), that the defendant will be able to successfully complete community supervision without such treatment. See Tex. Code Crim. Proc. Ann. art. 42.12, 15(c)(3) (Vernon Supp. 2004 2005). // But does Section 15(c)(2) apply when terms of community supervision are allegedly violated, as is asserted by Ford? We conclude it does not.

"The overall goal when interpreting a statute is to give effect to the collective intent or purpose of the Legislature that enacted the Statute." Sanchez v. State, 138 S.W.3d 324, 325 (Tex. Crim. App. 2004). "To do so, one must focus on the literal text of the statute and try to discern the fair, objective meaning of that text." Id. With these principles in mind, we turn to the statute at issue in this case.

Article 42.12 of the Texas Code of Criminal Procedure deals generally with community supervision, and Section 15 of that article governs various aspects of community supervision for those accused of state jail felonies. In the overall scheme of Section 15, subsections (a) (d), encompassing subsection (c), seem to speak of initially placing a defendant on community supervision; subsections (e) and (f), on the other hand, clearly govern what happens when he or she has violated the terms of community supervision.

Section 15(c)(2) speaks of placing a defendant on community supervision and makes no reference to modification or revocation of community supervision. And we can find no other provision of Article 42.12 that requires a trial court to send a defendant to a drug treatment program in lieu of revocation. For example, Section 22(a) employs the permissive "may impose" in discussing the modification or continuation of community supervision. See Tex. Code Crim. Proc. Ann. art. 42.12, 22(a) (Vernon Supp. 2004 2005). Yet, Section 22(a) does not mandate that the trial court impose any specific conditions if the court modifies or continues community supervision.

Outside of Section 15, the only time Article 42.12 requires a trial court to place a defendant in drug treatment as a condition of community supervision is when the trial court sends a defendant to a substance abuse felony punishment program (SAF-P). In such situations, the trial court must also require the defendant "to participate in a drug or alcohol abuse continuum of care program," but even then such participation is required only if the defendant first successfully completes SAF-P. See Tex. Code Crim. Proc. Ann. art. 42.12, 22(b) (Vernon Supp. 2004 2005).

In the case before us, the trial court neither modified nor continued Ford's community supervision; it revoked it.

If a defendant violates a condition of community supervision imposed on the defendant under this article and after a hearing under Section 21 of this article the judge revokes the defendant's community supervision, the judge shall dispose of the case in the manner provided by Section 23 of this article.

Tex. Code Crim. Proc. Ann. art. 42.12, 15(f)(1) (Vernon Supp. 2004 2005). Once community supervision has been revoked, Section 23 does not authorize the trial court to continue or modify a defendant's community supervision. Instead, the trial court must proceed "as if there had been no community supervision . . . ." Tex. Code Crim. Proc. Ann. art. 42.12, 23(a) (Vernon Supp. 2004 2005). Section 23(a) provides that the trial court should impose either the original sentence or a lesser sentence. Id. Nothing in Section 23 requires the trial court to send a defendant to drug treatment in lieu of revocation.

We hold Section 15(c)(2) does not support Ford's position that the trial court was required to modify his community supervision for drug treatment in lieu of revoking Ford's community supervision. Therefore, the trial court did not abuse its discretion by imposing the original punishment rather than ordering drug treatment.

We affirm the trial court's judgment.

Josh R. Morriss, III

Chief Justice

Date Submitted: August 10, 2004

Date Decided: November 30, 2004

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