Lundgren v. State

417 S.W.3d 11, 2013 Tex. App. LEXIS 10687, 2013 WL 6818018
Court of Appeals of Texas·Decided August 22, 2013·No. No. 02-12-00085-CR·Published·Cited by 6 cases

Opinions

OPINION

LEE GABRIEL, Justice.

Appellant Jerry Paul Lundgren appeals from the denial of his motion to suppress and motion to quash the State’s motion to [14] revoke his community supervision. Finding no reversible error in the denials, we affirm the trial court’s judgment.

I. Background

On August 18, 2010, Appellant was charged by information with driving while intoxicated. The information included an allegation that Appellant previously had been convicted of driving while intoxicated in 2009. Appellant pleaded guilty to the information under a plea-bargain agreement, and the trial court sentenced Appellant to 365 days’ confinement on January 7, 2011. The trial court suspended Appellant’s sentence and placed him on community supervision for 18 months. The community-supervision terms prohibited Appellant from committing any new offense and required him to abstain from alcohol. The trial court’s judgment stated that the sentence commenced that same day — January 7, 2011. Appellant’s plea-bargain agreement further included the provision that “the defendant has NO right of appeal.” The trial court admonished Appellant that he, indeed, could not appeal:

When the [Cjourt follows a plea[-]bargain agreement, permission of the Court must be given before you can prosecute an appeal on any matter in the case, except for a matter raised by written motion filed prior to trial. This Court seldom consents to an appeal where a conviction is based upon a guilty plea.

Seven days later on January 14, 2011, Appellant again was arrested following a report to police that the driver of a silver truck was passed out in the drive-through lane of a Whataburger. The responding police officer saw a silver truck in the drive-through lane as reported. The driver, who the officer later identified as Appellant, was awake when the officer approached the truck. Based on Appellant’s demeanor and the odor of alcohol, the officer conducted a field-sobriety test and then arrested Appellant for driving while intoxicated.

On January 19, 2011, Appellant filed a notice of appeal from his community-supervision sentence. On January 28, 2011, Appellant filed a motion for new trial, which was overruled by operation of law on March 23, 2011.1 See Tex.R.App. P. 21.8(c). On February 18, 2011, the State filed a motion to revoke Appellant’s community supervision based on the new January 14, 2011 offense and Appellant’s use of alcohol — both of which violated the community-supervision terms. On March 3, 2011, this court dismissed Appellant’s appeal for want of jurisdiction based on Appellant’s waiver and issued mandate on May 12, 2011. Lundgren v. State, No. 02-11-00023-CR, 2011 WL 754344, at *1 (Tex.App.-Fort Worth Mar. 3, 2011, no pet.) (mem. op., not designated for publication).

On June 22, 2011, the trial court entered a “Post Mandate Enforcement of Prior Judgment of Conviction Sentence Suspended,” stating that the sentence would commence that same day. Two days later, the trial court entered a nune-pro-tunc, post-mandate judgment, apparently to include the suspension of Appellant’s driver’s license for 180 days, which had been part of the January 7, 2011 judgment but had been omitted from the June 22, 2011 post-mandate judgment. The nunc-pro-tunc judgment also stated that the sentence commenced on June 22, 2011.

On July 13, 2011, Appellant sought to quash the State’s motion to revoke his [15] community supervision because the grounds for the motion — Appellant’s arrest for a new offense and use of alcohol— occurred when the community-supervision terms had not taken legal effect. The trial court denied the motion and explained that Appellant’s “failure to obtain permission of the trial court was a failure at the trial court level, not the appellate court level, so the probation terms came into effect immediately” on January 1,- 2011. During the subsequent hearing on the State’s motion to revoke, Appellant sought to suppress any evidence discovered during Appellant’s January 14, 2011 arrest based on a lack of “reasonable suspicion or probable cause to detain and seize [Appellant].” The trial court denied Appellant’s motion to suppress, found by a preponderance of the evidence that Appellant had violated the terms of his community supervision, revoked Appellant’s community supervision, and sentenced him to 300 days’ confinement. This appeal followed.

II. Denial of Motion to Quash

A. Effect of Notice of Appeal and Motion for New Trial

In his first issue, Appellant argues that the trial court erred by denying his motion to quash the State’s motion to revoke community supervision because the judgment on which the community supervision was based had been appealed. In short, Appellant asserts that the terms of his community supervision did not begin until after this court issued its mandate; therefore, his January 14, 2011 arrest and use of alcohol could not violate terms that were not in effect at that time.

The State responds that Appellant’s waiver of appeal operated to begin the terms of community supervision immediately on the date of the judgment — January 7, 2011. Therefore, Appellant’s January 14, 2011 arrest and use of alcohol violated the terms of the January 7, 2011 community-supervision judgment, implicating the State’s right to seek revocation:

Appellant should not be allowed [to] avoid the consequences of his actions by simply filing his post-waiver notice of appeal. If allowed, there would be no need for a waiver in Texas cases where a plea is reached. In fact, a holding that allows a [defendant to go behind the waiver in this manner would simply delete the requirement of a waiver in cases where a plea is reached. After all, what is the point of a waiver, if you can waive your right to get the plea in the first place, but not really waive your rights if you commit a crime prior to the trial court’s plenary power expiring.

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Lundgren v. State, 417 S.W.3d 11, 2013 Tex. App. LEXIS 10687, 2013 WL 6818018 (Tex. Ct. App. 2013).

417 S.W.3d 11 (Lundgren v. State) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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