Prevato v. State

77 S.W.3d 317, 2002 Tex. App. LEXIS 1564, 2002 WL 287716
CourtCourt of Appeals of Texas
DecidedFebruary 28, 2002
DocketNo. 14-00-01067-CR
StatusPublished
Cited by11 cases

This text of 77 S.W.3d 317 (Prevato v. State) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Prevato v. State, 77 S.W.3d 317, 2002 Tex. App. LEXIS 1564, 2002 WL 287716 (Tex. Ct. App. 2002).

Opinion

OPINION

JOHN S. ANDERSON, Justice.

This is an appeal from a judgment adjudicating appellant Marcio Luis Prevato guilty of misdemeanor indecent exposure, sentencing him to 180 days’ confinement in the county jail, and imposing a $307.00 fine. See Tex. Pen.Code Amn. § 21.08 (Vernon 1994). We affirm.

PROCEDURAL BACKGROUND

Appellant was initially charged by information with indecency with a child, a felony. The State moved to reduce the charge to the lesser-included misdemeanor offense of indecent exposure, and appellant pleaded guilty to that offense with an agreed recommendation. On March 9, 1999, the trial court deferred adjudication of guilt, placed appellant on deferred-adjudication community supervision for one year and imposed a fine of $200.00, in accord with the plea bargain agreement.1 The trial [318]*318court initially set appellant’s community supervision to expire on March 8, 2000. However, on December 8, 1999, the trial court entered an order modifying appellant’s conditions of probation and extending appellant’s deferred-adjudication community supervision for another year, with community supervision set to expire March 8, 2001.

On June 16, 2000, appellant filed a motion to terminate his deferred-adjudication community supervision. He alleged the December 8, 1999 modification was unlawful. He complained that, in modifying his community supervision, the trial court violated Texas Code of Criminal Procedure sections 21 and 22. Appellant contended these sections required a hearing and a judicial determination he violated an existing condition of community supervision before the court could continue or modify such community supervision. The trial court denied the motion on June 16, 2000.

On June 22, 2000, the State filed a motion to adjudicate guilt. The State alleged appellant violated conditions of probation by failing to present written verification of employment on various reporting dates in 1999 and 2000, and by failing to attend and participate in a sex-offender treatment program. With an agreed recommendation, appellant pleaded true to the allegation. On July 13, 2000, the- trial court adjudicated appellant guilty and, in accordance with the plea bargain agreement, assessed punishment at 180 days’ confinement in the county jail and a fine of $307.00.

DISCUSSION

Issue one. In issue one, appellant contends the trial court lacked jurisdiction to revoke his deferred adjudication because the state did not file the motion to revoke until after appellant’s period of deferred adjudication expired.2 Appellant’s contention rests on the underlying premise that, when the trial court extended appellant’s community supervision to March 8, 2001, the trial court did so unlawfully because it did not hold a hearing and did not determine appellant had violated the original terms of his community supervision. The State points to three cases as establishing that, under Texas Code of Criminal Procedure section 22(c) of Article 42.12, a court, with or without a hearing, may ex-ténd the period of supervision up to a maximum of three years at any time during the original period of probation. We will examine the State’s authorities.

In Ex parte Harrington, the Fort Worth Court of Appeals viewed section 10(a) of Article 42.12, as addressing the question of jurisdiction in a probation case and concluded section 10(a) did not make a motion to revoke a jurisdictional prerequisite to the trial court’s extension of probation so long as the court took action before the [319]*319expiration of the probationary period. 888 S.W.2d 396, 399-400 (Tex.App.-Fort Worth 1994, pet. refd). The Hamngton court also acknowledged the existence of former sections 243 and 254 of Article 42.12, which parallel current sections 21(b) and 22, and reasoned:

Section 24 [the parallel to current section 22], without directly saying so, requires the filing of a motion to revoke probation before the end of the probationary period to preserve the court’s jurisdiction beyond that period in the case where a revocation hearing cannot be held until after the probationary period has expired. Prior v. State, 795 S.W.2d 179, 184 (Tex.Crim.App.1990); Guillot v. State, 548 S.W.2d 650, 652 (Tex.Crim.App.1976). Relying on Prior and Guillot, Harrington equates an extension of probation with a revocation of probation and argues that the filing of a motion to revoke is essential to the trial court’s jurisdictional authority to extend probation. We believe Harrington’s reliance is misplaced.

Id. The court also rejected Harrington’s claims that the federal Due Process Clause and the state due course of law provision required a formal hearing and proof of a violation before the court could extend the probationary period. Id. at 400-01.

In Bailey v. State, the Beaumont Court of Appeals followed Harrington and rejected the defendant’s claim that an order extending probation was void because the trial court had not conducted a hearing and made a determination to adjudicate guilt. 888 S.W.2d 600, 602-04 (Tex.App.Beaumont 1994, no pet.). In support of his claim, Bailey invoked section 5(b) of Article 42.12, which pertains to the procedures for adjudicating guilt on violation of a condition of probation and which entitles the defendant “to a hearing limited to the determination by the court of whether it proceeds with an adjudication of guilt on the original charge.” TexCode CRim. PROC. Ann. art. 42.12 § 5(b) (Vernon Supp.2002); Bailey, 888 S.W.2d at 602. The Beaumont court observed that the defendant, like the defendant in Harrington, had “equated an extension of probation with a revocation of probation in arguing that the procedural requisites for conducting an adjudication of guilt and revocation of probation were essential to the trial court’s jurisdictional authority to extend probation.” Bailey, 888 S.W.2d at 603. In addition to referring to section 10(a), the Bailey court viewed section 11(a) as providing “almost unlimited authority to a trial court that wishes to ‘alter or modify’ any conditions of probation so long as the probationary term has not expired.” Id. at 604.5

Finally, in Warmoth v. State, the Fort Worth Court of Appeals, in what appears to be dictum, opined that under section 22(c), “a judge may, either with or without a hearing, extend the period of supervision up to the maximum three years at any time during the original period of probation.” 946 S.W.2d 526, 527 (Tex.App.-Fort Worth 1997, no pet.) (per curiam). In [320]*320support, the court cited Harrington and Bailey. Id.

Appellant argues the Bailey court incorrectly cited Article 42.12, section 10 in addressing the question of jurisdiction to extend probation and incorrectly ignored the sections paralleling current sections 21 and 22. Section 10(a), the section on which Bailey relied, currently provides, in part:

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Bluebook (online)
77 S.W.3d 317, 2002 Tex. App. LEXIS 1564, 2002 WL 287716, Counsel Stack Legal Research, https://law.counselstack.com/opinion/prevato-v-state-texapp-2002.