Monroe James Knighton v. State

• Court: Court of Appeals of Texas
• Decided: February 14, 2007
• Docket: 09-06-00060-CR
• Status: Published

Opinion

In The

Court of Appeals

Ninth District of Texas at Beaumont

______________________

NO. 09-06-059 CR

NO. 09-06-060 CR

MONROE JAMES KNIGHTON, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 252nd District Court

Jefferson County, Texas

Trial Cause Nos. 70576 and 70577

MEMORANDUM OPINION

Monroe James Knighton appeals from the revocation of his community supervision in two aggravated assault convictions. In each case, appellate counsel filed an Anders brief concluding there are "no arguably meritorious issues." ⁽¹⁾ Knighton filed a pro se brief.

In 1996 Knighton pleaded guilty, pursuant to plea bargains, to two separate indictments for aggravated assault. On September 9, 1996, the trial court deferred adjudication of guilt and placed Knighton on community supervision for eight years. Knighton appealed from the deferred adjudication orders, and this Court affirmed the trial court's orders. See Knighton v. State, No. 09-96-363CR, 1998 WL 286005 (Tex. App.--Beaumont May 28, 1998, no pet.)(not designated for publication). The mandates in both cases issued on August 12, 1998. From the record, it appears the State filed motions to revoke probation in both cases on September 15, 2005. Knighton pled "true" to a violation of each community supervision order. The trial court adjudicated him guilty of the two offenses and sentenced him to eight years in prison in each case, with the sentences to run concurrently.

Knighton argues the community supervision period expired prior to the revocation proceedings, and the trial court lacked jurisdiction to revoke the community supervision and adjudicate guilt. Had Knighton not appealed from the deferred adjudication order, his community supervision would have expired in September 2004, and the trial court would not have had jurisdiction to consider the September 2005 revocation motion. See generally Ex parte Donaldson, 86 S.W.3d 231, 232 (Tex. Crim. App. 2002). However, Knighton appealed from the deferred adjudication orders and, according to his pro se brief, he was out on appeal bond during the pendency of the appeal. On May 28, 1998, this Court issued its opinion affirming the trial court's orders. See Knighton, 1998 WL 286005, at *3. Our mandate issued on August 12, 1998, and the deferred adjudication orders became final at that point. See, by analogy, Milburn v. State, 201 S.W.3d 749, 752 (Tex. Crim. App. 2006) ("A conviction is not final if it is on appeal. . . ."); see also Donovan v. State, 68 S.W.3d 633, 636-37 (Tex. Crim. App. 2002)(Deferred adjudication defendants and regular probation defendants are given the same right to appeal.); Jordan v. State, 36 S.W.3d 871, 875-77 (Tex. Crim. App. 2001)(discussion of "final conviction" in various contexts). Knighton's deferred adjudication community supervision commenced on August 12, 1998. ⁽²⁾

Accordingly, the community supervision orders did not expire until eight years later in August 2006. Both motions to revoke were filed in September 2005 while the community supervision was still in effect.

Knighton appears to argue he was not given 309 days of credit for time spent in jail prior to his release on appeal bond and for time spent in the boot camp ordered by the trial court as a condition of his deferred adjudication community supervision. We understand him to ask that the 309 days that accrued prior to the date the community supervision began should be counted as part of the time he spent on community supervision. On that basis, he says the community supervision expired before the motions to revoke were filed and the capiases were issued. Even if Knighton were entitled to 309 days credit on his community supervision, the capiases issued prior to the expiration of his community supervision. A trial court may revoke probation after the period expires so long as the motion to revoke is filed, and a warrant or capias properly issues, during the probationary period. ⁽³⁾ Ex parte Donaldson, 86 S.W.3d at 232; Brecheisen v. State, 4 S.W.3d 761, 763 (Tex. Crim. App. 1999). The record shows the State filed motions to revoke and capiases were issued and executed during the community supervision period. Further, the adjudication of guilt occurred prior to the expiration of the community supervision. ⁽⁴⁾

Knighton also appears to argue the time spent while he was free on bond during the appeal of the deferred adjudication order should be credited to his community supervision period. We do not find a Texas statute or case law that provides for time credits while out on bond. Knighton's community supervision did not commence until the August 12, 1998, mandate issued from this Court. The time he spent out on bond would not have occurred during the community supervision period.

We have independently examined the clerk's record and the reporter's record and find no reversible error. We have determined the appeal is wholly frivolous. Knighton may file a petition for discretionary review raising error by this Court in the instant appeal. See Bledsoe v. State, 178 S.W.3d 824, 827 (Tex. Crim. App. 2005). Appointment of new counsel is not required. Compare Stafford v. State, 813 S.W.2d 503, 511 (Tex. Crim. App. 1991).

The judgments of the trial court in cause numbers 09-06-059 and 09-06-060 are affirmed.

AFFIRMED.

____________________________

DAVID GAULTNEY

Justice

Submitted on November 2, 2006

Opinion Delivered February 14, 2007

Do Not Publish

Before McKeithen, C.J., Gaultney and Kreger, J.J.

1. See Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967).

2. Article 42.09 of the Code of Criminal Procedure provides as follows:

If a defendant appeals his conviction and is released on bail pending disposition of his appeal, when his conviction is affirmed, the clerk of the trial court, on receipt of the mandate from the appellate court, shall issue a commitment against the defendant. The officer executing the commitment shall endorse thereon the date he takes the defendant into custody and the defendant's sentence begins to run from the date endorsed on the commitment. . . .

Tex. Code Crim. Proc. Ann. art. 42.09, § 2 (Vernon 2006). Although not a conviction, the deferred adjudication order in the appeal context, by analogy, is treated in similar fashion. If the defendant appeals the deferred adjudication order and is released on bail pending disposition of his appeal, the order does not become final until the appellate court issues its mandate. Since the trial court's deferred adjudication provided for community supervision, Knighton's community supervision did not begin until our mandate issued on August 12, 1998.

3. The probationer may "raise the State's lack of due diligence in executing the warrant for his arrest as a plea in bar to the motion to revoke his probation." Ex parte Donaldson, 86 S.W.3d at 232-33. "Due diligence" is not at issue here.

4. Time credits are given towards a defendant's sentence for time spent in confinement from arrest to sentencing. See Ex parte Walker, 150 S.W.3d 429, 432 (Tex. Crim. App. 2004); see Tex. Code Crim. Proc. Ann. art. 42.03, § 2(a) (Vernon 2006) ("[T]he judge of the court in which the defendant was convicted shall give the defendant credit on his sentence for the time that the defendant has spent in jail in said cause, other than confinement served as a condition of community supervision, from the time of his arrest and confinement until his sentence by the trial court."). In the deferred adjudication context, there is no conviction, and sentence has not been imposed. See Tex. Code Crim. Proc. Ann. art. 42.12, § 5 (b) (Vernon 2006).