Jerry Paul Lundgren v. State

• Court: Court of Appeals of Texas
• Decided: August 21, 2014
• Docket: 02-12-00085-CR
• Status: Published

Opinion

COURT OF APPEALS SECOND DISTRICT OF TEXAS FORT WORTH

NO. 02-12-00085-CR

JERRY PAUL LUNDGREN APPELLANT

V.

THE STATE OF TEXAS STATE

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FROM COUNTY COURT AT LAW OF WISE COUNTY TRIAL COURT NO. CR-66896

MEMORANDUM OPINION1 ON REMAND

This appeal is before us after a remand from the court of criminal appeals.

See Tex. R. App. 78.1(d). On original submission, we held that Appellant’s

violations of his community-supervision terms, which occurred after his

negotiated sentence of community supervision was imposed but before

Appellant’s motion for new trial was overruled by operation of law, subjected him

1 See Tex. R. App. P. 47.4. to revocation. We concluded that the trial court, therefore, did not err by denying

Appellant’s motion to quash the State’s motion to revoke his community

supervision based on the alleged violation occurring before his community-

supervision judgment became final. Lundgren v. State, 417 S.W.3d 11, 22 (Tex.

App.—Fort Worth 2013).

The court of criminal appeals held, however, that Appellant’s timely and

effective filing of a motion for new trial retroactively tolled the commencement of

his community supervision; therefore, the terms of Appellant’s community

supervision were not in effect one week after Appellant pleaded guilty to DWI

when Appellant was again arrested for DWI but before Appellant’s motion for

new trial was overruled by operation of law. Lundgren v. State, No. PD-1322-13,

2014 WL 2865806, at *5–6 (Tex. Crim. App. June 25, 2014). As a result, the trial

court should have granted Appellant’s motion to quash the State’s motion to

revoke Appellant’s community supervision. Id. at *6. The court of criminal

appeals reversed our prior judgment and remanded to this court “for further

proceedings not inconsistent with this opinion.” Id.; see Tex. R. App. P. 78.1(d).

Based on the court of criminal appeals’ reasoning, we hold that the trial

court erred by denying Appellant’s motion to quash because the judgment upon

which the community supervision was based was not a final judgment at the time

the alleged violations occurred. We sustain Appellant’s first issue, reverse the

trial court’s order denying Appellant’s motion to quash, and order the motion to

2 revoke community supervision dismissed. We need not address Appellant’s other

issues. See Tex. R. App. P. 47.1; Lundgren, 2014 WL 2865806, at *6.

/s/ Lee Gabriel

LEE GABRIEL JUSTICE

PANEL: DAUPHINOT, WALKER, and GABRIEL, JJ.

DO NOT PUBLISH Tex. R. App. P. 47.2(b)

DELIVERED: August 21, 2014