Shelby Mark Neugebauer v. State

Opinion

NO. 07-07-0214-CR

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL A

MAY 29, 2008

______________________________

SHELBY MARK NEUGEBAUER, APPELLANT

V.

THE STATE OF TEXAS, APPELLEE

_________________________________

FROM THE 47TH DISTRICT COURT OF RANDALL COUNTY;

NO. 9286-A; HONORABLE HAL MINER, JUDGE

_______________________________

Before CAMPBELL and HANCOCK and PIRTLE, JJ.

ABATEMENT AND REMAND

Appellant, Shelby Mark Neugebauer, seeks to overturn the trial court’s decision to

revoke its previous order granting him shock probation. For the reasons expressed herein,

we abate and remand this cause to the trial court for appointment of new counsel. On May 14, 1997, Appellant was convicted of intoxication manslaughter and

punishment was assessed by a jury at eight years confinement and a $10,000 fine. The

execution of Appellant’s sentence began immediately.1 Appellant’s conviction was affirmed

by this Court on June 16, 1998, in Cause Number 07-97-0213-CR. The Mandate of this

Court issued on December 30, 1998. On April 26, 1999, Appellant filed a motion with the

trial court seeking to suspend further imposition of his sentence pursuant to article 42.12,

§ 6 of the Texas Code of Criminal Procedure, under the procedure commonly referred to

as “shock probation.” On June 1, 1999, the trial court heard Appellant’s motion and

ordered that his sentence, but not the fine, be suspended in favor of community

supervision for ten years. In 2007, the State filed a motion to revoke Appellant’s

community supervision for three violations of the condition that he abstain from alcohol

consumption and one violation of the requirement that he pay a supervision fee. Appellant

entered a plea of not true to the allegations. Following presentation of testimony and

evidence, the trial court revoked Appellant’s community supervision and sentenced him to

seven and one-half years confinement.

Appellant’s original attorney on appeal filed an Anders 2 brief in support of a motion

to withdraw. Having concluded that an arguable ground for appeal existed, on April 2,

1 The Appellant was incarcerated on May 14, 1997. The Appellant remained confined in either the Randall County Jail or the Institutional Division of the Texas Department of Criminal Justice until he was released on bond pending appeal pursuant to Art. 44.04, Texas Code of Criminal Procedure. The date of release does not appear in the record before us. 2 Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967).

2 2008, this Court abated this appeal and remanded the case to the trial court for the

appointment of new counsel. On May 21, 2008, Appellant’s new counsel on appeal also

filed an Anders brief in support of a motion to withdraw. The State did not respond to the

original Anders brief, and the time for filing a response to the second Anders brief has not

expired.

When faced with an Anders brief, an appellate court has a duty to conduct a full

examination of the proceeding, and if its independent inquiry reveals a nonfrivolous or

arguable ground for appeal, it must abate the proceeding and remand the case to the trial

court so that new counsel can be appointed to brief the issues. See Penson v. Ohio, 488

U.S. 75, 109 S.Ct. 346, 102 L.Ed.2d 300 (1988); Bledsoe v. State, 178 S.W.3d 824

(Tex.Crim.App. 2005).

As we pointed out in our opinion of April 2, 2008, as then in effect, for purposes of

suspending further imposition of sentence and placing the defendant on shock probation,

the jurisdiction of the trial court continues for 180 days from the date the “execution of the

sentence actually begins.” Tex. Code Crim. Proc. Ann. art. 42.12, § 6(a) (Vernon 2004)

(emphasis added). Execution of sentence begins upon the defendant’s incarceration.

Bailey v. State, 160 S.W.3d 11, 14, fn.2 (Tex.Crim.App. 2004). Appellant was originally

incarcerated on May 14, 1997; therefore, execution of Appellant’s sentence began on May

14, 1997. The trial court’s grant of shock probation on June 1, 1999, clearly more than 180

days after execution of Appellant’s sentence actually began, was arguably done at a time

3 when the trial court was without jurisdiction to enter that order. See State v. McDonald,

642 S.W.2d 492, 493 (Tex.Crim.App. 1982); State v. Hatten, 508 S.W.2d 625, 628

(Tex.Crim.App. 1974). A trial court order granting shock probation after it has lost

jurisdiction is void. Ex Parte Busby, 67 S.W.3d 171 (Tex.Crim.App. 2001) (overruled on

other grounds, Ex Parte Hale, 117 S.W.3d 866 (Tex.Crim.App. 2003)).

Appellant’s new appellate counsel opines that the trial court did have jurisdiction

because Appellant was not incarcerated for more than 180 days prior to the suspension

of sentence, the Appellant having been released on bond pending Appellant’s original

appeal on the merits of his conviction. Appellant’s new appellate counsel, however,

ignores the potential argument that if the jurisdiction of the trial court ended “180 days from

the date the execution of the sentence actually begins”, then the trial court’s jurisdiction

ended on November 10, 1997, more than 18 months prior to entry of the June 1, 1999,

Order Suspending Imposition of Sentence; that if the trial court jurisdiction ended prior to

entry of the order granting shock probation, then the order was void; and that if the order

granting shock probation was void, then any order purporting to revoke that probation

would be void. We conclude that issue warrants briefing.

Therefore, having concluded that an arguable ground for appeal still exists, we grant

Appellant’s counsel’s motion to withdraw, abate this proceeding, and again remand this

cause to the trial court for the appointment of new counsel. See Bledsoe, 178 S.W.3d at

827; Stafford v. State, 813 S.W.2d 503, 511 (Tex.Crim.App. 1991). We direct the trial

4 court to appoint new counsel to represent Appellant on appeal by June 30, 2008. The trial

court shall furnish the name, address, telephone number, and state bar number of new

counsel to the clerk of this Court immediately after the appointment of counsel is ordered.

Finally, the trial court shall cause its order appointing counsel to be included in a

supplemental clerk’s record which shall be filed with the Clerk of this Court by July 14,

2008. Appellant’s brief shall be due forty-five days from the date of the trial court’s

appointment of new counsel. All other appellate deadlines shall be in accordance with the

Texas Rules of Appellate Procedure.

It is so ordered.

Per Curiam

Do not publish.