Opinion
Nos. 05-06-01446-CR, 05-06-01447-CR, 05-06-01448-CR
Filed May 14, 2008. DO NOT PUBLISH. Tex. R. App. P. 47
On Appeal from the 292nd Judicial District Court, Dallas County, Texas, Trial Court Cause Nos. F06-65699-V, F05-52249-V, F05-52250-V.
Before Justices FITZGERALD, LANG-MIERS, and MAZZANT.
OPINION
David Charles Dudley appeals three convictions for various drug offenses. Appellant was initially charged with two possession of cocaine offenses to which he pleaded guilty. The first case was for possession of cocaine with intent to deliver in an amount of one gram or more but less than four grams, a second degree felony. See Tex. Health Safety Code Ann. § 481.112(a), (c) (Vernon 2003). The second case was for possession of cocaine in an amount less than one gram, a state jail felony. See Id. § 481.115(a), (b) (Vernon 2003). The trial court deferred adjudication of guilt on these two cases, placed appellant on community supervision for five years, and assessed a fine in each case. Subsequently, appellant was indicted for possession of cocaine with intent to deliver in an amount of four grams or more but less than 200 grams, a first degree felony. See Id. § 481.112(a), (d) (Vernon 2003). The State moved to revoke appellant's community supervision and adjudicate appellant guilty in the first two cases. The trial court found appellant guilty in the new case, adjudicated appellant guilty in the two earlier cases, sentenced appellant to twenty years in the new case and the earlier second degree felony case, and two years in a state jail facility in the earlier state jail felony case. Appellant appeals. In the new case, case no. 05-06-01446-CR, and the earlier second degree felony case, case no. 05-06-01447-CR, appellant's attorney filed a single brief in which she concludes the appeals are wholly frivolous and without merit. The brief meets the requirements of Anders v. California, 386 U.S. 738 (1967). The brief presents a professional evaluation of the record showing why, in effect, there are no arguable grounds to advance. See High v. State, 573 S.W.2d 807, 811 (Tex.Crim.App. [Panel Op.] 1978). Counsel delivered a copy of the brief to appellant. We advised appellant of his right to file a pro se response, but he did not file a pro se response. We have reviewed the record and counsel's brief. See Bledsoe v. State, 178 S.W.3d 824 (Tex.Crim.App. 2005). We agree the appeals are frivolous and without merit. We find nothing in the record that might arguably support the appeal. We affirm the trial court's judgment in case no. 05-06-01447-CR. We note, however, that the judgment in case no. 05-06-01446-CR reflects that appellant was convicted of "unlawful possession with intent to deliver a controlled substance, to wit: cocaine/4G," a first degree felony, under section 481.115 of the health and safety code. But section 481.115 deals only with possession of a controlled substance, not possession with intent to deliver. See Tex. Health Safety Code Ann. § 481.115. Appellant was indicted for possession with intent to deliver, admonished on that charge, and pleaded guilty as charged. We determine, therefore, that the judgment incorrectly reflects the statute under which appellant was convicted, and that it should, instead, reflect that appellant was convicted under section 481.112 of the health and safety code. See Tex. Health Safety Code Ann. § 481.112(a), (d) (provisions for possession with intent to deliver a controlled substance). We have the power to modify judgments when we have the necessary information to do so. See Tex. R. App. P. 43.2(b); Asberry v. State, 813 S.W.2d 526, 529-30 (Tex.App.-Dallas 1991, pet. ref'd). Accordingly, we modify the judgment in case no. 05-06-01446-CR to delete the reference to "481.115 Health and Safety Code" under the heading "statute for offense" and to add the reference "481.112 Health and Safety Code." As modified, we affirm the trial court's judgment in case no. 05-06-01446-CR. In case no. 05-06-01448-CR, the earlier state jail felony case, appellant argues that the trial court erred by sentencing him to confinement in a state jail facility. He contends that Texas Code of Criminal Procedure article 42.12, section 15(a)(1) requires the trial court to suspend the imposition of sentence and place him on community supervision because he was convicted of an offense under health and safety code 481.115(b). He cites section 15(a)(1), which, on May 3, 2005, the date the offense was committed, stated:
(a)(1) On conviction of a state jail felony under Section 481.115(b), 481.1151(b)(1), 481.116(b), 481.121(b)(3), or 481.129(g)(1), Health and Safety Code, that is punished under Section 12.35(a), Penal Code [the state jail felony punishment provision], the judge shall suspend the imposition of the sentence and place the defendant on community supervision, unless the defendant has previously been convicted of a felony, in which event the judge may suspend the imposition of the sentence and place the defendant on community supervision or may order the sentence to be executed. . . .See Act of May 24, 2003, 78th Leg., R.S., ch. 1122 § 1, 2003 Tex. Gen. Laws 3212, 3212, amended by Act of May 28, 2007, 80th Leg., R.S., ch. 1308 § 54, 2007 Tex. Gen. Laws 4421, 4421 (current version at Tex. Code Crim. Proc. Ann. art. 42.12 § 15(a)(1) (Vernon Supp. 2007)) (emphasis added). He also cites Holcomb v. State, 146 S.W.3d 723 (Tex.App.-Austin 2004, no pet.) to support his argument. The State concedes that appellant was convicted of a health and safety code offense for which community supervision is mandatory under article 42.12, section 15(a)(1). It points out, however, that the trial court was also governed by section 5(b) of article 42.12, which it argues specifically addresses post-adjudication sentencing for state jail felony convictions where the defendant was originally placed on deferred adjudication community supervision. See Tex. Code Crim. Proc. Ann. art. 42.12 § 5(b) (Vernon Supp. 2007). Section 5(b) states:
(b) On violation of a condition of community supervision imposed under Subsection (a) of this section [the deferred adjudication provision], the defendant may be arrested and detained as provided in Section 21 of this article. . . . 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). The State also contends that the Holcomb case is distinguishable because the interplay of sections 5 and 15(a) was not an issue there. It argues this is an issue of first impression in this Court. We interpret a statute in accordance with the plain meaning of its language unless the language is ambiguous or the plain meaning leads to absurd results. Jordan v. State, 36 S.W.3d 871, 873 (Tex.Crim.App. 2001). Additionally, where a special statute is complete and specific within itself, it controls even though another statute concerning the same subject matter may contain requirements not enumerated in the special statute. Ogilvie v. State, 711 S.W.2d 365, 666 (Tex.App.-Dallas 1986, pet. ref'd). In Holcomb, the appellant pleaded guilty to possession of cocaine and the trial court deferred adjudication of guilt and placed him on community supervision. Holcomb, 146 S.W.3d at 727-28. The State subsequently moved to adjudicate, and the appellant pleaded true to violating conditions of community supervision. The trial court adjudicated the appellant guilty and imposed punishment at two years in a state jail facility. Id. However, pursuant to section 15(a), the trial court suspended the imposition of sentence and placed the appellant on "straight probation." Id. On appeal, the appellant argued that section 15(a)(1) could not be interpreted to require the trial court to impose "redundant probation." Id. at 727. He argued that "redundant probation" thwarted the legislature's intent to reduce costs by imposing back-to-back conditions of community supervision. Id. at 734-35. The Austin court of appeals concluded that the language of section 15 was not ambiguous and did not require or prohibit more than one probation in the same case. Id. at 734. Other courts have also interpreted the mandatory language in section 15. See, e.g., May v. State, 106 S.W.3d 375, 376-77 (Tex.App.-Corpus Christi 2003, no pet.) (interpreting 1995 version of section 15); Jordan v. State, 979 S.W.2d 75, 76-78 (Tex.App.-Austin 1998) (same), aff'd, 36 S.W.3d 871 (Tex.Crim.App. 2001); Semenoff v. State, No. 05-98-01580-CR, 1999 WL 993887 at *4-6 (Tex.App.-Dallas Nov. 1, 1999, no pet.) (not designated for publication) (interpreting 1993 version of section 15). Although those cases dealt with prior versions of the statutory language, in each case they interpreted the mandatory community supervision provision to require the suspension of the imposition of sentence. We agree with our sister courts that the language of section 15 is unambiguous. See Holcomb, 146 S.W.3d at 734; May, 106 S.W.3d at 376-77; Jordan, 979 S.W.2d at 76-78. We also agree that it does not specifically address situations where the defendant was first placed on deferred adjudication. See Holcomb, 146 S.W.3d at 734. Because it was not an issue, none of those courts discussed the impact of the language in section 5(b) on the application of section 15. Neither party has cited a case construing sections 5(b) and 15 together, and we have found only one such case. See Kesinger v. State, 34 S.W.3d 644 (Tex.App.-San Antonio 2000, pet. ref'd). We find its analysis instructive. In Kesinger, the appellant was charged with a state jail felony. Id. at 644. The trial court deferred adjudication of guilt and placed the appellant on community supervision. Id. The State subsequently moved to adjudicate the appellant's guilt, the appellant pleaded true to the allegations, and the trial court adjudicated his guilt and assessed punishment at two years in a state jail facility. Id. On appeal, the appellant argued that the trial court was required to suspend the imposition of sentence pursuant to section 15(a)(1). Id. at 645. The State argued in that case, as the State argues in this case, that section 5(b) is specifically applicable to the imposition of sentence following a deferred adjudication and, therefore, controlled the trial court's ability to order that a sentence be executed rather than suspended. The court agreed, holding that section 5(b) is a specific statute that controls over section 15(a)(1), a general statute. Id. (citing State v. Mancuso, 919 S.W.2d 86, 88 (Tex.Crim.App. 1996)). We agree. Section 5 of article 42.12 is devoted entirely to the situation where a defendant is placed on deferred adjudication community supervision. See Tex. Code Crim. Proc. Ann. art. 42.12 § 5(a)-(h) (Vernon Supp. 2007). Subsections (a) and (d)-(g) contain specific details under which a trial court may defer proceedings without entering an adjudication of guilt and place the defendant on community supervision. Id. Subsections (b) and (h) contain specific details about the procedure involved when a defendant is accused of violating a condition of community supervision imposed under subsection (a). Id. And subsection (c) contains specific details about the procedure involved when a period of community supervision imposed under subsection (a) has expired without a proceeding to adjudicate guilt. Id. Section 15(a)(1) does not address any of these circumstances. See id. § 15(a)(1). We conclude that section 5 is a special statute relating to deferred adjudication proceedings and controls the trial court's discretion in assessing punishment in this case. See Kesinger, 34 S.W.3d at 645; Ogilvie, 711 S.W.2d at 666. Our decision is supported by the noted absence in section 5(b) of any language excepting from its application a sentence imposed pursuant to section 15(a)(1).See Tex. Code Crim. Proc. Ann. art. 42.12 § 5(b). We resolve appellant's issue against him. We affirm the trial court's judgment in case no. 05-06-01448-CR. In summary, we modify the judgment in case no. 05-06-01446-CR and affirm as modified, and we affirm the judgments in case nos. 05-06-01447-CR and 05-06-01448-CR.
The relevant portion of the current version of section 5(b) contains the same language as the version in effect at the time of the offense. We will refer to the current version of the statute.
The primary distinction between Kesinger and this case is that the 1995 version of the statute at issue in Kesinger mandated community supervision for state jail felonies generally, see Act of May 28, 1995, 74th Leg., R.S., ch. 318 § 60, 1995 Tex. Gen. Laws 2734, 2754 ("On conviction of a state jail felony, punished under Section 12.35(a), Penal Code, the judge shall suspend the imposition of the sentence of confinement and place the defendant on community supervision. . . ."), whereas the 2003 version at issue in this case mandated community supervision only for specific provisions of the health and safety code, see Act of May 24, 2003, 78th Leg., R.S., ch. 1122 § 1, 2003 Tex. Gen. Laws 3212, 3212 ("On conviction of a state jail felony under Section 481.115(b), 481.1151(b)(1), 481.116(b), 481.121(b)(3), or 481.129(g)(1), Health and Safety Code, that is punished under Section 12.35(a), Penal Code, the judge shall suspend the imposition of the sentence. . . ."). This distinction does not affect our analysis.
We also note that section 15(a)(1) was amended effective September 1, 2007, to except from the mandatory community supervision provision any "conviction [that] resulted from an adjudication of the guilt of a defendant previously placed on deferred adjudication community supervision for the offense, in which event the judge may suspend the imposition of the sentence and place the defendant on community supervision or may order the sentence to be executed. . . ." Tex. Code Crim. Proc. Ann. art. 42.12 § 15(a)(1).