Opinion issued November 24, 2015
In The
Court of Appeals For The
First District of Texas ———————————— NO. 01-14-01020-CR ——————————— SIMMIE JAMES COLSON III, Appellant V. THE STATE OF TEXAS, Appellee
On Appeal from the 185th District Court Harris County, Texas Trial Court Case No. 991804
MEMORANDUM OPINION
Appellant Simmie James Colson III was adjudicated guilty of the offense of
theft of property and sentenced to seven months’ confinement in state jail. Colson
contends that the trial court judge misunderstood the applicable law and therefore failed to consider alternative dispositions available to her, and he requests a new
hearing on the State’s motion to adjudicate. We affirm.
Background
Colson was charged by indictment with the theft of property valued over one
thousand dollars, but less than twenty thousand dollars—a state jail felony—
occurring on or about October 14, 2003. Pursuant to a plea agreement, on October
5, 2004, Colson pleaded guilty. The trial court deferred adjudication, placed
Colson on community supervision for two years, imposed a $600 fine, and ordered
Colson to complete two hundred hours of community service and make restitution.
Colson’s two-year term of deferred-adjudication community supervision was
subject to conditions requiring that he (1) periodically report to a supervision
officer, (2) maintain employment and provide written documentation of his
employment, (3) notify his supervision officer prior to any change of residence,
(4) perform community service as ordered, and (5) pay assessed fees, fines, court
costs, and restitution.
On June 20, 2006, the State filed a motion to adjudicate guilt, alleging that
Colson violated several conditions of his deferred-adjudication community
supervision. That same day, a capias was issued and received by the Harris
County Sheriff’s Office. The capias was executed over eight years later on
October 21, 2014.
2 On December 11, 2014, the trial court held a hearing on the State’s motion
to adjudicate. Colson pleaded “True” to the violations alleged by the State,
without an agreed recommendation on punishment. Colson presented testimony
from seven mitigation witnesses, including himself. During testimony by Ms.
Jones, the following exchange transpired between counsel and the trial court judge:
Counsel: I explained to you what Mr. Colson is facing if the judge adjudicates him guilty, a minimum of 180 days. What would you say to the judge as to why she should exercise her discretion and do something other than adjudicate him guilty and sentence him to –
Court: Please don’t have these folks think that I have any discretion at all in this matter.
Counsel: Okay.
Court: So, I don’t want them to leave here today believing the Court has some discretion in this matter, based on the situation and the law.
Counsel: Okay. Okay. Why would you ask the Court not to send him to jail for 180 days.
Witness: I think it would . . .
Ultimately, the trial court found the allegations in the motion to adjudicate true and
assessed punishment of seven months’ confinement in state jail.
3 Discussion
In his sole point of error, Colson contends that the trial court judge failed to
consider potential alternative dispositions due to her mistaken understanding of the
applicable law. In particular, Colson contends that the record reflects that the trial
court incorrectly believed that she had no choice other than to impose a minimum
sentence of 180 days’ confinement.
A. Standard of Review
Colson asserts that because the “judge was proceeding from an erroneous
legal assumption as to the options available,” the underlying issue is a question of
law and reviewable de novo. Though Colson urges de novo review, in arguing that
the trial court failed to consider the full range of punishment, Colson presents a due
process issue. See e.g., Grado v. State, 445 S.W.3d 736, 739 (Tex. Crim. App.
2014); State v. Hart, 342 S.W.3d 659, 672–74 (Tex. App.—Houston [14th Dist.]
2011, pet. ref’d). Due process requires trial judges to be neutral and detached in
assessing punishment. Brumit v. State, 206 S.W.3d 639, 645 (Tex. Crim. App.
2006). A defendant is denied his due process rights when a trial court arbitrarily
refuses to consider the entire range of punishment. Id.
Absent a clear showing to the contrary, we must presume that the trial court
judge knows the law and applied the law in a fair and impartial manner. Id.; Hart,
342 S.W.3d at 673; see also Walton v. Arizona, 497 U.S. 639, 653 (1990) (“Trial
4 judges are presumed to know the law and to apply it in making their decisions.”),
overruled on other grounds by Ring v. Arizona, 536 U.S. 584 (2002). Explicit
evidence that the trial court considered the full range of punishment indicates an
absence of bias. Id. The absence of statements in the record suggesting the court
considered something less than the full range of punishment and the hearing of
extensive evidence before assessment of punishment might also indicate an
absence of bias. Id.
B. Applicable Law
In order “for a trial court to have jurisdiction to adjudicate the guilt of a
defendant who was on community supervision, ‘both the motion to revoke and
capias for arrest must be issued prior to the termination of the probationary
period.’” Ex parte Moss, 446 S.W.3d 786, 791 (Tex. Crim. App. 2014) (quoting
Guillot v. State, 543 S.W.2d 650, 652 (Tex. Crim. App. 1976)); see also TEX.
CODE CRIM. PROC. ANN. art. 42.12 § 5(h) (West Supp. 2015). A trial court can
extend deferred-adjudication community supervision for a state jail felony as
necessary, up to a term of 10 years. TEX. CODE CRIM. PROC. ANN. art. 42.15 § 5(a)
(West Supp. 2015); Garrett v. State, 377 S.W.3d 697, 704–08 (Tex. Crim. App.
2012). However, it cannot do so once the probationary period expires. TEX. CODE
CRIM. PROC. ANN. art. 42.12 § 22(c); id. § 5(a) (providing that the extension of
deferred-adjudication community supervision be regulated by art. 42.12, sec. 22);
5 see also Ex parte Moss, 446 S.W.3d at 791 (construing art. 42.12, sec. 5(h) as a
codification of the judicially-fashioned rule allowing limited continuing
jurisdiction to adjudicate guilt so long as a motion to adjudicate was filed and
capias issued during probationary period); Arrieta v. State, 719 S.W.2d 393, 395
(Tex. App.—Fort Worth 1986, pet. ref’d) (“[Art.42.12] does not grant the trial
court the power to amend or modify probation once the probation period has
expired”).
Upon an adjudication of guilt, a state jail felony is punishable by
confinement in a state jail for a term of 180 days to two years. TEX. PENAL CODE
ANN. § 12.35 (West 2014).
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Opinion issued November 24, 2015
In The
Court of Appeals For The
First District of Texas ———————————— NO. 01-14-01020-CR ——————————— SIMMIE JAMES COLSON III, Appellant V. THE STATE OF TEXAS, Appellee
On Appeal from the 185th District Court Harris County, Texas Trial Court Case No. 991804
MEMORANDUM OPINION
Appellant Simmie James Colson III was adjudicated guilty of the offense of
theft of property and sentenced to seven months’ confinement in state jail. Colson
contends that the trial court judge misunderstood the applicable law and therefore failed to consider alternative dispositions available to her, and he requests a new
hearing on the State’s motion to adjudicate. We affirm.
Background
Colson was charged by indictment with the theft of property valued over one
thousand dollars, but less than twenty thousand dollars—a state jail felony—
occurring on or about October 14, 2003. Pursuant to a plea agreement, on October
5, 2004, Colson pleaded guilty. The trial court deferred adjudication, placed
Colson on community supervision for two years, imposed a $600 fine, and ordered
Colson to complete two hundred hours of community service and make restitution.
Colson’s two-year term of deferred-adjudication community supervision was
subject to conditions requiring that he (1) periodically report to a supervision
officer, (2) maintain employment and provide written documentation of his
employment, (3) notify his supervision officer prior to any change of residence,
(4) perform community service as ordered, and (5) pay assessed fees, fines, court
costs, and restitution.
On June 20, 2006, the State filed a motion to adjudicate guilt, alleging that
Colson violated several conditions of his deferred-adjudication community
supervision. That same day, a capias was issued and received by the Harris
County Sheriff’s Office. The capias was executed over eight years later on
October 21, 2014.
2 On December 11, 2014, the trial court held a hearing on the State’s motion
to adjudicate. Colson pleaded “True” to the violations alleged by the State,
without an agreed recommendation on punishment. Colson presented testimony
from seven mitigation witnesses, including himself. During testimony by Ms.
Jones, the following exchange transpired between counsel and the trial court judge:
Counsel: I explained to you what Mr. Colson is facing if the judge adjudicates him guilty, a minimum of 180 days. What would you say to the judge as to why she should exercise her discretion and do something other than adjudicate him guilty and sentence him to –
Court: Please don’t have these folks think that I have any discretion at all in this matter.
Counsel: Okay.
Court: So, I don’t want them to leave here today believing the Court has some discretion in this matter, based on the situation and the law.
Counsel: Okay. Okay. Why would you ask the Court not to send him to jail for 180 days.
Witness: I think it would . . .
Ultimately, the trial court found the allegations in the motion to adjudicate true and
assessed punishment of seven months’ confinement in state jail.
3 Discussion
In his sole point of error, Colson contends that the trial court judge failed to
consider potential alternative dispositions due to her mistaken understanding of the
applicable law. In particular, Colson contends that the record reflects that the trial
court incorrectly believed that she had no choice other than to impose a minimum
sentence of 180 days’ confinement.
A. Standard of Review
Colson asserts that because the “judge was proceeding from an erroneous
legal assumption as to the options available,” the underlying issue is a question of
law and reviewable de novo. Though Colson urges de novo review, in arguing that
the trial court failed to consider the full range of punishment, Colson presents a due
process issue. See e.g., Grado v. State, 445 S.W.3d 736, 739 (Tex. Crim. App.
2014); State v. Hart, 342 S.W.3d 659, 672–74 (Tex. App.—Houston [14th Dist.]
2011, pet. ref’d). Due process requires trial judges to be neutral and detached in
assessing punishment. Brumit v. State, 206 S.W.3d 639, 645 (Tex. Crim. App.
2006). A defendant is denied his due process rights when a trial court arbitrarily
refuses to consider the entire range of punishment. Id.
Absent a clear showing to the contrary, we must presume that the trial court
judge knows the law and applied the law in a fair and impartial manner. Id.; Hart,
342 S.W.3d at 673; see also Walton v. Arizona, 497 U.S. 639, 653 (1990) (“Trial
4 judges are presumed to know the law and to apply it in making their decisions.”),
overruled on other grounds by Ring v. Arizona, 536 U.S. 584 (2002). Explicit
evidence that the trial court considered the full range of punishment indicates an
absence of bias. Id. The absence of statements in the record suggesting the court
considered something less than the full range of punishment and the hearing of
extensive evidence before assessment of punishment might also indicate an
absence of bias. Id.
B. Applicable Law
In order “for a trial court to have jurisdiction to adjudicate the guilt of a
defendant who was on community supervision, ‘both the motion to revoke and
capias for arrest must be issued prior to the termination of the probationary
period.’” Ex parte Moss, 446 S.W.3d 786, 791 (Tex. Crim. App. 2014) (quoting
Guillot v. State, 543 S.W.2d 650, 652 (Tex. Crim. App. 1976)); see also TEX.
CODE CRIM. PROC. ANN. art. 42.12 § 5(h) (West Supp. 2015). A trial court can
extend deferred-adjudication community supervision for a state jail felony as
necessary, up to a term of 10 years. TEX. CODE CRIM. PROC. ANN. art. 42.15 § 5(a)
(West Supp. 2015); Garrett v. State, 377 S.W.3d 697, 704–08 (Tex. Crim. App.
2012). However, it cannot do so once the probationary period expires. TEX. CODE
CRIM. PROC. ANN. art. 42.12 § 22(c); id. § 5(a) (providing that the extension of
deferred-adjudication community supervision be regulated by art. 42.12, sec. 22);
5 see also Ex parte Moss, 446 S.W.3d at 791 (construing art. 42.12, sec. 5(h) as a
codification of the judicially-fashioned rule allowing limited continuing
jurisdiction to adjudicate guilt so long as a motion to adjudicate was filed and
capias issued during probationary period); Arrieta v. State, 719 S.W.2d 393, 395
(Tex. App.—Fort Worth 1986, pet. ref’d) (“[Art.42.12] does not grant the trial
court the power to amend or modify probation once the probation period has
expired”).
Upon an adjudication of guilt, a state jail felony is punishable by
confinement in a state jail for a term of 180 days to two years. TEX. PENAL CODE
ANN. § 12.35 (West 2014). In the alternative, a court may punish a defendant
convicted of a state jail felony by imposing the confinement permissible as
punishment for a Class A misdemeanor, which results in a fine not to exceed
$4,000, confinement in jail for a term not to exceed one year, or both. TEX. PENAL
CODE ANN. §§ 12.44(a) (West 2014); id. § 12.21 (West 2014). In either case,
pursuant to article 42.12, “[a] court assessing punishment after an adjudication of
guilt of a defendant charged with a state jail felony may suspend the imposition of
the sentence and place the defendant on community supervision or may order the
sentence to be executed, regardless of whether the defendant has previously been
convicted of a felony.” TEX. CODE CRIM. PROC. ANN. art. 42.12 § 5(b).
6 C. Analysis
Colson was charged with and pleaded guilty to the state jail felony of theft
by check. Colson’s original two-year term of deferred-adjudication community
supervision was ordered on October 5, 2004, and therefore expired in
October 2006. See Whitson v. State, 429 S.W.3d 632, 638 (Tex. Crim. App. 2014)
(explaining that in calculating the end date of deferred-adjudication community
supervision, the term includes the day that supervision is ordered and excludes the
anniversary date). On June 20, 2006—during Colson’s term of deferred-
adjudication community supervision—the State moved to adjudicate guilt and a
capias issued for Colson’s arrest. Though the term of supervision had ended by the
time of his arrest, the trial court retained jurisdiction for the limited purpose of
adjudicating Colson’s guilt. Ex parte Donaldson, 86 S.W.3d 231, 232 (Tex. Crim.
App. 2002) (per curium) (“We have long held that a trial court has jurisdiction to
hear a motion to revoke . . . as long as the motion was filed, and a warrant or capias
properly issued, during the probationary period.”).
While the trial court retained jurisdiction to adjudicate Colson’s guilt, the
court had no authority to extend or modify the original term of deferred-
adjudication community supervision because it had expired. TEX. CODE CRIM.
PROC. ANN. art. 42.12 § 22(c); Arrieta, 719 S.W.2d at 395 (“[Art. 42.12] does not
grant the trial court the power to amend or modify probation once the probation
7 period has expired”); Ex parte Lewis, 934 S.W.2d 801, 803 (Tex. App.—Houston
[1st Dist.] 1996, no pet.) (holding that trial court had no jurisdiction to enter
modification order extending community supervision after term of supervision had
expired). Although Colson argues on appeal that the filing of the motion to
adjudicate in July 2006 should toll the expiration of the term of community
supervision, the Court of Criminal Appeals resolved long ago that the filing of the
motion to adjudicate does not toll the running of a term of supervision. Nicklas v.
State, 530 S.W.2d 537, 541 (Tex. Crim. App. 1975) (rejecting State’s argument
that filing of a motion to revoke probation and issuance of warrant tolls running of
probationary period); see also Arrieta, 719 S.W.2d at 395 (concluding that timely
filing of motion to revoke probation “does not toll the running of the probationary
period, and in fact probation continues to run and may expire”); Hunter v. State,
640 S.W.2d 656, 659 (Tex. App.—El Paso 1982, pet. ref’d) (“A motion to revoke
and capias do not toll the running of the probationary period.”). Accordingly,
Colson’s original two-year term of deferred-adjudication community supervision
continued to run after the State filed the motion to adjudicate, and the authority of
the trial court to continue or modify Colson’s supervision expired at the end of that
two-year term. TEX. CODE CRIM. PROC. ANN. art. 42.12 § 22(c). We conclude
that, contrary to Colson’s suggestion, the trial court could not have extended his
deferred-adjudication community supervision.
8 Colson contends that the trial court incorrectly believed that she had no
available alternative dispositions other than sentencing Colson to at least 180 days’
confinement. In support, Colson relies on the following exchange:
Counsel: I explained to you what Mr. Colson is facing if the judge adjudicates him guilty, a minimum of 180 days. What would you say to the judge as to why she should exercise her discretion and do something other than adjudicate him guilty and sentence him to –
Court: Please don’t have these folks think that I have any discretion at all in this matter.
Counsel: Okay.
Court: So, I don’t want them to leave here today believing the Court has some discretion in this matter, based on the situation and the law.
(emphasis added). Relying on this exchange, Colson contends that the trial court
judge believed “she did not have any discretion to take a step other than sending
Colson to a state jail upon finding the allegations of supervision violations to be
true.” In so doing, Colson reads too much into this ambiguous exchange. Cf.
Grado, 445 S.W.3d at 738 (concluding that trial court violated defendant’s right to
be sentenced after consideration of entire punishment range where record showed
that trial court expressly accepted the State’s erroneous assertion that a 10 year
minimum applied and admonished defendant accordingly). The exchange could be
interpreted as correctly stating that the trial court judge lacked discretion to avoid
9 adjudicating Colson guilty because he admitted the alleged violations. Indeed,
immediately following the exchange, counsel reframed his question to ask the
witness why the trial court should exercise discretion in sentencing: “Why would
you ask the Court not to send him to jail for 180 days?”; and the trial court judge
notably did not restate her request that witnesses not be given the impression that
she had some discretion in the matter. Thus, viewed in its entirety and coupled
with the well-settled principle that we must assume the trial court judge knows the
law, we conclude that a reasonable reading of the exchange reflects that the trial
court judge understood that she had no discretion to avoid an adjudication of
Colson’s guilt, but that she did have discretion in determining his sentence upon an
adjudication of guilt. See Jenkins v. State, No. 05–14–00195–CR, 2015 WL
3522813, at *3 (Tex. App.—Dallas June 3, 2015, no pet.) (mem. op., not
designated for publication) (though trial court judge mistakenly believed appellant
originally pleaded to a 10 year sentence, stated on record that he did not believe
appellant had done anything on probation to justify reducing that sentence, and
revoked probation and sentenced appellant to 10 years’ confinement, record did
not show that trial court refused to consider full range of punishment available).
This conclusion is supported by the fact that there is no indication in the record that
the trial court judge erroneously believed that she had no discretion with regard to
sentencing following an adjudication of guilt. Brumit, 206 S.W.3d at 645 (absence
10 of comments suggesting trial court considered something less than full range of
punishment indicates absence of bias, thereby supporting presumption that trial
court’s actions were correct).
The sentencing options available to the trial court included a sentence within
the prescribed punishment for a state jail felony or a Class A misdemeanor, and
once ordered, the sentence could be executed or suspended in favor of community
supervision. The trial court imposed a sentence within the available range. There
is no clear indication in the record to overcome our presumption that the trial court
judge understood the applicable law and applied it in a fair and impartial manner in
determining Colson’s sentence. See id. Accordingly, we find no error in the trial
court’s decision to sentence Colson within the statutory range for a state jail felony
and to order that the sentence be executed. Barrow v. State, 207 S.W.3d 377, 381
(Tex. Crim. App. 2006) (explaining that sentencing decisions are unassailable on
appeal so long as punishment is within legislatively prescribed range and is based
on informed normative judgment of judge or jury); Jackson v. State, 680 S.W.2d
809, 814 (Tex. Crim. App. 1984) (explaining that, generally, “as long as a sentence
is within the proper range of punishment it will not be disturbed on appeal”).
11 Conclusion
We affirm the trial court’s judgment.
Rebeca Huddle Justice
Panel consists of Justices Higley, Huddle, and Lloyd.
Do not publish. TEX. R. APP. P. 47.2(b).