Kenneth D. Grindell, Jr. v. The State of Texas--Appeal from 7th District Court of Smith County

NO. 12-06-00168-CR

IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT

TYLER, TEXAS

KENNETH D. GRINDELE, JR., APPEAL FROM THE 7TH

APPELLANT

V. JUDICIAL DISTRICT COURT OF

THE STATE OF TEXAS,

APPELLEE SMITH COUNTY, TEXAS

MEMORANDUM OPINION

Appellant Kenneth D. Grindele, Jr. appeals from a final adjudication of guilt following his violation of the conditions of community supervision imposed when an adjudication of guilt was deferred and he was placed on community supervision. Appellant pleaded true to the two allegations in the State s application to proceed to final adjudication. He raises five issues on appeal. We dismiss the appeal for want of jurisdiction.

Procedural History

Appellant pleaded guilty to the offense of aggravated assault. The trial court deferred further proceedings without entering an adjudication of guilt, and placed Appellant on community supervision. In its May 16, 2005 order, the trial court ordered Appellant to pay $6,689.62 in restitution at the rate of $150.00 per month. In the same order, the trial court also ordered the Smith County Community Supervision and Corrections Department to complete a postsentence investigation to determine restitution to be paid, if any. On August 31, 2005, the Community Supervision Officer informed the court that the ordered postsentence investigation had been completed, and, based on that report, moved the court to order restitution in the total amount of $13,126.33 at the rate of $150.00 each month. The trial court signed the order on September 12, 2005 granting the amendment as requested. There was no hearing on the motion. There is no indication in the record that Appellant or his attorney was notified of the motion to change the amount of restitution, nor does the record reflect that a copy of the trial court s order was sent to Appellant or his attorney.

On September 12, 2005, the trial court also signed a show cause order commanding Appellant to appear to show cause why the court should not proceed to a final adjudication of guilt based upon the State s application filed on September 9, 2005.

Appellant was arrested on September 14 and remained in jail until November 17, 2005. On that date, the court dismissed the State s motion to proceed to final adjudication. The court also amended the conditions of community supervision contained in its May 16, 2005 order to require that Appellant attend a substance abuse felony punishment facility (SAFPF) and that he remain under Level II Intensive Supervision for two years. Appellant was released from jail to await notification that space was available at SAFPF.

On January 11, 2006, the State again moved to proceed to a final adjudication of guilt. The State filed an amended application on March 21, 2006. On May 4, 2006, Appellant pleaded true to all allegations in the State s application. The trial court found Appellant guilty, sentenced him to imprisonment for seven years, made a deadly weapon finding, and ordered restitution in the amount of $12,976.33.

Restitution

In his first issue, Appellant contends the increase in restitution from $6,689.62 ordered when he was placed on community supervision to $12,976.33 constitutes an illegal sentence. Specifically, Appellant argues that the sentence is illegal because the increase was made without any notice to Appellant on a motion and order filed three months after he was placed on community supervision when the trial court had lost its authority to increase his restitution obligation.

Applicable Law

Upon violation of a condition of community supervision imposed without an adjudication of guilt, [t]he defendant is entitled to a hearing limited to the determination by the court of whether it proceeds with an adjudication of guilt on the original charge. Tex. Code Crim. Proc. Ann. art. 42.12 5(b) (Vernon 2006). No appeal may be taken from this determination. Id. A party may appeal only that which the legislature has authorized. Olowosuko v. State, 826 S.W.2d 940, 941-42 (Tex. Crim. App. 1992).

There is no opportunity on appeal to challenge a modification of deferred adjudication community supervision as a basis for overturning an adjudication of guilt. Davis v. State, 195 S.W.3d 708, 711 (Tex. Crim. App. 2006).1 An appellate court cannot consider a claim that the defendant s right to counsel was violated at the adjudication hearing. Davis, 195 S.W.3d at 710. Even jurisdictional complaints relating to the trial court s determination are barred by Section 5(b) s prohibition against appeal. Davis, 195 S.W.3d at 712.

Restitution, if ordered, is not part of the sentence, but a separate component of the judgment. Tex. Code Crim. Proc. Ann. art. 42.01(21) (Vernon 2006). The sentence and the conditions of community supervision are also separate parts of the judgment. Tex. Code Crim. Proc. Ann. art. 42.01(10), (15) (Vernon 2006); Speth v. State, 6 S.W.3d 530, 532 (Tex. Crim. App. 1999). Community supervision is an arrangement in lieu of sentence, not a part of the sentence. Speth, 6 S.W.3d at 532.

A void or illegal sentence is one not authorized by law. Ex parte Seidel, 39 S.W.3d 221, 224-25 (Tex. Crim. App. 2001). A sentence is void when the punishment is unauthorized. Ex parte Beck, 922 S.W.2d 181, 182 (Tex. Crim. App. 1996).

Analysis

In this case, the trial court had jurisdiction of the person and the subject matter. The sentence imposed by the trial judge after the adjudication of Appellant s guilt was within the range provided by law. The amount of restitution is not a part of the sentence. When the trial court orders restitution, the defendant s obligation to make periodic payments of restitution continues despite a suspension of the sentence or deferral of an adjudication of guilt when the defendant is placed on community service. While the defendant remains on community service, the payment of restitution as ordered is regarded as a condition of community service.

The trial court s order of May 16, 2005 deferring adjudication not only ordered Appellant to pay $6,689.62 in restitution at the rate of $150.00 per month, but also ordered a postsentence investigation to determine what (presumably additional) restitution would be required. It is reasonable to infer that both the State and Appellant contemplated that additional restitution might be required. Although the increase in restitution was made without further notice to Appellant almost four months after he was placed on community service, it is unlikely Appellant was surprised by the increase. Notwithstanding his lack of notice or surprise, Article 42.12, section 5(b) bars our consideration of the issue. However, even if we could address the issue, Appellant s complaint on appeal was not raised in the trial court as required by the Texas Rules of Appellate Procedure. See Tex. R. App. P. 33.1.

Due Process and Evidentiary Sufficiency

In his second issue, Appellant complains the trial court violated his right to due process under the Fourteenth Amendment by revoking his community supervision based upon two conditions that he could not have violated. In his third, fourth and fifth issues, Appellant challenges the sufficiency of the evidence supporting the trial court s action in proceeding to final adjudication.

The State s Second Amended Application to Proceed to Final Adjudication alleged that Appellant had been placed on community supervision on May 16, 2005, and that the terms and conditions of community supervision . . . provided that [Appellant], . . . (18) Report in person to your supervision officer within 48 hours after release from any jail or other confinement following any arrest or conviction; . . . [and] (67) [Is] [a]ssigned to Level II Intensive Supervision for a term of two years, and during this term [shall] report each week as directed by your Supervision Officer. The State alleged violation of both conditions.

The State alleged that Appellant failed to report to his Supervision Officer within 48 hours after his release from confinement. Appellant was released from the Smith County Jail following the dismissal on November 15 of the State s first motion to proceed to final adjudication. The trial court continued Appellant on community service, but modified the conditions to require that for two years he report once a week to a level II supervision officer and that he enter a Substance Abuse Felony Punishment Facility. Because no space was available in such a facility, Appellant was released November 17, 2005 until space became available.

Appellant argues that it is nonsensical to interpret the conditions of community service to require him to report within 48 hours after his release from the Smith County Jail when he had been released pursuant to an agreement with the State with the apparent acquiescence of the probation department. Appellant also contends that the May 16, 2005 judgment did not place him on level II supervision as alleged in the State s motion to proceed to adjudication. Appellant was not placed under level II supervision until November 15, 2005. Therefore, Appellant, despite his plea of true, contends the trial court lacked jurisdiction to revoke his community supervision for a condition not contained in the May 16, 2005 judgment. Alternatively, he argues that the trial court violated due process in revoking his probation for violating a condition that did not commence as alleged in the State s application to proceed to final adjudication.

Each of the errors alleged in Appellant s issues two through five relate solely to the sufficiency of the evidence supporting the trial court s determination to proceed with an adjudication of guilt on the original charge. Although artfully contrived, Appellant s arguments ignore the plain mandate of Article 42.12, section 5(b) of the Texas Code of Criminal Procedure. A long line of cases from the beginning of deferred adjudication practice has held that the Legislature meant what it said in Article 42.12 5(b): No appeal may be taken from this determination. Olowosuko, 826 S.W.2d at 942.

Conclusion

We lack jurisdiction of this appeal. Therefore, we do not address the merits of Appellant s five issues. The appeal is dismissed for want of jurisdiction.

BILL BASS

Justice

Opinion delivered June 29, 2007.

Panel consisted of Griffith, J., Hoyle, J., and Bass, Retired Justice, Twelfth Court of Appeals, Tyler, sitting by assignment.

(DO NOT PUBLISH)

1 In an appeal of the revocation of regular community supervision, a complaint about a modification can be raised if the validity of the revocation depends on the validity of the modification. Rickels v. State, 108 S.W.3d 900, 902 (Tex. Crim. App. 2003).