DISMISS; Opinion Filed May 12, 2015.
S In The Court of Appeals Fifth District of Texas at Dallas No. 05-13-01639-CR
BERNARD WINFIELD SHORTT, Appellant V. THE STATE OF TEXAS, Appellee
On Appeal from the 194th Judicial District Court Dallas County, Texas Trial Court Cause No. F07-00193-M
MEMORANDUM OPINION Before Justices Francis, Evans, and Stoddart Opinion by Justice Evans
Appellant Bernard Winfield Shortt appeals from an order granting him shock probation
which imposed restitution as a condition of probation. Appellant contends the order violates his
Fifth Amendment right against double jeopardy and requests that this court delete the restitution
order. The State did not agree there was a constitutional infirmity, but agreed for statutory
reasons that the trial court erred by ordering appellant to pay restitution and requested that this
Court modify the order to delete the condition requiring restitution. After a review of the issue
before us, we dismiss the appeal for want of jurisdiction.
BACKGROUND
In January 2007, appellant was indicted for burglary of a habitation. On October 12,
2007, appellant signed a judicial confession and a plea agreement which recommended that he receive seven years’ deferred community supervision as his sentence. Appellant waived trial by
jury and entered a guilty plea. The court accepted appellant’s plea but did not make a finding of
guilt and passed the case to a later date. On December 7, 2007, the court held a hearing and
placed appellant on seven years’ deferred adjudication and ordered payment of $9,085 in
restitution. The conditions for appellant’s community supervision required, among others things,
that he make monthly payments toward his restitution, complete 800 hours of community
service, and report to a supervision officer.
On May 17, 2013, the State filed a motion to revoke probation or proceed with an
adjudication of guilt after appellant violated numerous conditions of his probation including
failure to pay restitution. At the subsequent revocation hearing, appellant entered a plea of
“true” to the State’s allegations. Appellant also signed a plea agreement in which he admitted to
violating the conditions of his community supervision including the failure to pay restitution.
The trial court concluded that appellant had violated the terms of his probation and entered a
Judgment Adjudicating Guilt. This judgment sentenced appellant to ten years’ confinement.
The trial court did not orally pronounce a fine or restitution, and the section in the judgment
referring to restitution reads: “Restitution: $N/A.”
Appellant began his incarceration on May 31, 2013 and remained incarcerated until
October 25, 2013 when he returned to court for a shock probation hearing. At the hearing, the
trial court asked appellant if he owed restitution and appellant’s counsel objected. Counsel
argued that because the trial court did not pronounce restitution during sentencing at the
revocation hearing, the trial court could not include it among the conditions of appellant’s shock
probation. At the conclusion of the hearing, the court granted the request for shock probation,
suspended the ten-year sentence of imprisonment, placed appellant on five years’ community
supervision and ordered, over counsel’s objection, appellant to pay restitution. The trial court
–2– required payment of restitution as a condition of community supervision. Condition (q) of
appellant’s conditions of community supervision addressed the issue of restitution:
Make restitution in the amount of $6,178.00 for the loss sustained by the injured party. Payments are to be paid through the community supervision officer of this court at the rate of $110.00 per month. First payment is due on or before 11/30/2013 and a like payment is due on or before the first day of each month thereafter until paid in full[.]
Appellant then filed a notice of appeal regarding the restitution provision in the order.
ANALYSIS
In his sole point of error, appellant asserts that the trial court erred and violated his Fifth
Amendment right against double jeopardy by including restitution as a condition of his shock
probation. The State did not concede that a violation of appellant’s Fifth Amendment rights had
occurred, but did concede that the court lacked statutory authority to include the restitution in the
order granting shock probation. 1 We do not reach these arguments because of the jurisdictional
impediment in this case.
The trial court certified appellant could appeal this case and, as noted above, both
appellant and the State filed briefs treating the case as appealable. But the parties cannot confer
jurisdiction on this court even if they agreed to do so. See State v. Roberts, 940 S.W.2d 655, 657
(Tex. Crim. App. 1996) (“subject matter jurisdiction cannot be conferred by agreement of the
parties; jurisdiction must be vested in a court by constitution or statute”), overruled on other
1 The trial court sentenced appellant to ten years’ confinement in the order adjudicating guilt but did not mention restitution. The Texas Court of Criminal Appeals has twice concluded that restitution is punitive in nature. Weir v. State, 278 S.W.3d 364, 366 (Tex. Crim. App. 2009) (citing Ex parte Cavazos, 203 S.W.3d 333, 338 (Tex. Crim. App. 2006)). The court has held that if restitution is ordered, judgments are required to state the amount of restitution. Bailey v. State, 160 S.W.3d 11, 15 (Tex. Crim. App. 2004) (citing TEX. CODE CRIM. PROC. ANN. art. 42.01(25)). The court of criminal appeals has further concluded that where neither the parties nor the trial court mention restitution during the sentencing hearing or as part of the oral pronouncement of sentence yet restitution appears in the written judgment, the defendant is entitled to have the order of restitution deleted from the judgment. Burt v. State, 445 S.W.3d 752, 757-58 (Tex. Crim. App. 2014) (citing numerous authorities). Here, we understand the State to argue that because the trial court did not include restitution as part of its pronouncement of its adjudication of guilt, no provision of article 42.12 authorized the court to impose restitution later as a term of probation in the trial court’s shock probation order. The court of criminal appeals has not reached this issue.
–3– grounds by State v. Madrano, 67 S.W.3d 892 (Tex. Crim. App. 2002); see also Zepeda v. State,
993 S.W.2d 167 (Tex. App.—1999, pet. ref’d) (declining to construe appeal for denial of shock
probation as a writ of habeas corpus because appellate court lacks original habeas corpus
jurisdiction in criminal matters). As other Texas courts have previously held, we hold that there
is no statutory authority which confers jurisdiction upon an appellate court jurisdiction to
consider an appeal from an order imposing shock probation pursuant to article 42.12 of the Texas
Code of Criminal Procedure. See TEX. CODE CRIM. PROC. ANN. art. 42.12, § 6 (West Supp.
2014); Perez v.
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DISMISS; Opinion Filed May 12, 2015.
S In The Court of Appeals Fifth District of Texas at Dallas No. 05-13-01639-CR
BERNARD WINFIELD SHORTT, Appellant V. THE STATE OF TEXAS, Appellee
On Appeal from the 194th Judicial District Court Dallas County, Texas Trial Court Cause No. F07-00193-M
MEMORANDUM OPINION Before Justices Francis, Evans, and Stoddart Opinion by Justice Evans
Appellant Bernard Winfield Shortt appeals from an order granting him shock probation
which imposed restitution as a condition of probation. Appellant contends the order violates his
Fifth Amendment right against double jeopardy and requests that this court delete the restitution
order. The State did not agree there was a constitutional infirmity, but agreed for statutory
reasons that the trial court erred by ordering appellant to pay restitution and requested that this
Court modify the order to delete the condition requiring restitution. After a review of the issue
before us, we dismiss the appeal for want of jurisdiction.
BACKGROUND
In January 2007, appellant was indicted for burglary of a habitation. On October 12,
2007, appellant signed a judicial confession and a plea agreement which recommended that he receive seven years’ deferred community supervision as his sentence. Appellant waived trial by
jury and entered a guilty plea. The court accepted appellant’s plea but did not make a finding of
guilt and passed the case to a later date. On December 7, 2007, the court held a hearing and
placed appellant on seven years’ deferred adjudication and ordered payment of $9,085 in
restitution. The conditions for appellant’s community supervision required, among others things,
that he make monthly payments toward his restitution, complete 800 hours of community
service, and report to a supervision officer.
On May 17, 2013, the State filed a motion to revoke probation or proceed with an
adjudication of guilt after appellant violated numerous conditions of his probation including
failure to pay restitution. At the subsequent revocation hearing, appellant entered a plea of
“true” to the State’s allegations. Appellant also signed a plea agreement in which he admitted to
violating the conditions of his community supervision including the failure to pay restitution.
The trial court concluded that appellant had violated the terms of his probation and entered a
Judgment Adjudicating Guilt. This judgment sentenced appellant to ten years’ confinement.
The trial court did not orally pronounce a fine or restitution, and the section in the judgment
referring to restitution reads: “Restitution: $N/A.”
Appellant began his incarceration on May 31, 2013 and remained incarcerated until
October 25, 2013 when he returned to court for a shock probation hearing. At the hearing, the
trial court asked appellant if he owed restitution and appellant’s counsel objected. Counsel
argued that because the trial court did not pronounce restitution during sentencing at the
revocation hearing, the trial court could not include it among the conditions of appellant’s shock
probation. At the conclusion of the hearing, the court granted the request for shock probation,
suspended the ten-year sentence of imprisonment, placed appellant on five years’ community
supervision and ordered, over counsel’s objection, appellant to pay restitution. The trial court
–2– required payment of restitution as a condition of community supervision. Condition (q) of
appellant’s conditions of community supervision addressed the issue of restitution:
Make restitution in the amount of $6,178.00 for the loss sustained by the injured party. Payments are to be paid through the community supervision officer of this court at the rate of $110.00 per month. First payment is due on or before 11/30/2013 and a like payment is due on or before the first day of each month thereafter until paid in full[.]
Appellant then filed a notice of appeal regarding the restitution provision in the order.
ANALYSIS
In his sole point of error, appellant asserts that the trial court erred and violated his Fifth
Amendment right against double jeopardy by including restitution as a condition of his shock
probation. The State did not concede that a violation of appellant’s Fifth Amendment rights had
occurred, but did concede that the court lacked statutory authority to include the restitution in the
order granting shock probation. 1 We do not reach these arguments because of the jurisdictional
impediment in this case.
The trial court certified appellant could appeal this case and, as noted above, both
appellant and the State filed briefs treating the case as appealable. But the parties cannot confer
jurisdiction on this court even if they agreed to do so. See State v. Roberts, 940 S.W.2d 655, 657
(Tex. Crim. App. 1996) (“subject matter jurisdiction cannot be conferred by agreement of the
parties; jurisdiction must be vested in a court by constitution or statute”), overruled on other
1 The trial court sentenced appellant to ten years’ confinement in the order adjudicating guilt but did not mention restitution. The Texas Court of Criminal Appeals has twice concluded that restitution is punitive in nature. Weir v. State, 278 S.W.3d 364, 366 (Tex. Crim. App. 2009) (citing Ex parte Cavazos, 203 S.W.3d 333, 338 (Tex. Crim. App. 2006)). The court has held that if restitution is ordered, judgments are required to state the amount of restitution. Bailey v. State, 160 S.W.3d 11, 15 (Tex. Crim. App. 2004) (citing TEX. CODE CRIM. PROC. ANN. art. 42.01(25)). The court of criminal appeals has further concluded that where neither the parties nor the trial court mention restitution during the sentencing hearing or as part of the oral pronouncement of sentence yet restitution appears in the written judgment, the defendant is entitled to have the order of restitution deleted from the judgment. Burt v. State, 445 S.W.3d 752, 757-58 (Tex. Crim. App. 2014) (citing numerous authorities). Here, we understand the State to argue that because the trial court did not include restitution as part of its pronouncement of its adjudication of guilt, no provision of article 42.12 authorized the court to impose restitution later as a term of probation in the trial court’s shock probation order. The court of criminal appeals has not reached this issue.
–3– grounds by State v. Madrano, 67 S.W.3d 892 (Tex. Crim. App. 2002); see also Zepeda v. State,
993 S.W.2d 167 (Tex. App.—1999, pet. ref’d) (declining to construe appeal for denial of shock
probation as a writ of habeas corpus because appellate court lacks original habeas corpus
jurisdiction in criminal matters). As other Texas courts have previously held, we hold that there
is no statutory authority which confers jurisdiction upon an appellate court jurisdiction to
consider an appeal from an order imposing shock probation pursuant to article 42.12 of the Texas
Code of Criminal Procedure. See TEX. CODE CRIM. PROC. ANN. art. 42.12, § 6 (West Supp.
2014); Perez v. State, 938 S.W.2d 761, 762-63 (Tex. App.—Austin 1997, pet. ref’d) (dismissing
appeal for lack of jurisdiction because defendant cannot appeal an order granting shock
probation); Pippin v. State, 271 S.W.3d 861 (Tex. App.—Amarillo 2008, no pet.) (same); see
also Houlihan v. State, 579 S.W.2d 213 (Tex. Crim. App. 1979) (dismissing appeal of order
denying motion for shock probation); Basaldua v. State, 558 S.W.2d 2, 5 (Tex. Crim. App. 1977)
(dismissing appeal of order denying modification of conditions of shock probation); see also
Roberts v. State, No. 04-10-00558-CR, 2010 WL 4523788 (Tex. App.—San Antonio Nov. 10,
2010, pet. ref’d) (mem. op., not designated for publication) (dismissing appeal of shock
probation); Thursby v. State, 05-94-01772-CR, 1997 WL 472310, at *3 (Tex. App.—Dallas Aug.
20, 1997, pet. ref’d) (mem. op., not designated for publication) (same). The statute currently
permits appeals of an order revoking probation. See TEX. CODE CRIM. PROC. ANN. art. 42.12,
§ 23(b) (defendant “may appeal the revocation”). Because appellant appeals from an order
granting shock probation, we do not have jurisdiction to consider his appeal.
–4– CONCLUSION
We dismiss this appeal for lack of jurisdiction.
/ David Evans/ DAVID EVANS JUSTICE
Do Not Publish TEX. R. APP. P. 47 131639F.U05
–5– S Court of Appeals Fifth District of Texas at Dallas JUDGMENT
BERNARD WINFIELD SHORTT, On Appeal from the 194th Judicial District Appellant Court, Dallas County, Texas Trial Court Cause No. F07-00193-M. No. 05-13-01639-CR V. Opinion delivered by Justice Evans. Justices Francis and Stoddart participating. THE STATE OF TEXAS, Appellee
Based on the Court’s opinion of this date, the appeal is dismissed for want of jurisdiction.
Judgment entered this 12th day of May, 2015.
–6–