Opinion
No. 05-13-01639-CR
05-02-2018
BERNARD WINFIELD SHORTT, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the 194th Judicial District Court Dallas County, Texas
Trial Court Cause No. F07-00193-M
OPINION ON REMAND
Before Justices Francis, Evans, and Stoddart
Opinion by Justice Evans
Bernard Winfield Shortt appealed an order which granted him "shock" probation and imposed restitution as a condition of probation. Shortt contended that the order violated his Fifth Amendment right against double jeopardy and requested that the Court delete the restitution order. This Court concluded that there was no statutory authority which conferred jurisdiction on an appeal court to consider an appeal from an order imposing shock probation and dismissed the appeal for want of jurisdiction. Shortt v. State, No. 05-13-01639-CR, 2015 WL 2250152 (Tex. App.—Dallas May 12, 2015, judgm't vacated). The Court of Criminal Appeals granted Shortt's petition for discretionary review and a majority concluded that the courts of appeals have the authority to entertain a defendant's appeal from an order granting "shock" community supervision pursuant to section 23(b) of article 42.12 of the Texas Code of Criminal Procedure. Shortt v. State, 539 S.W.3d 321 (Tex. Crim. App. 2018). Having considered the appellant's sole issue, we sustain Shortt's point of error and modify the order to delete the imposition of restitution.
ANALYSIS
We provided a detailed recitation of the facts in our opinion on original submission and do not recount them here. Shortt, 2015 WL 2250152 at *1-2. In his sole point of error, Shortt asserted that the trial court erred and violated his Fifth Amendment right against double jeopardy by including restitution as a condition of his shock probation. The State conceded that the Court should modify the conditions of community supervision to delete the invalid restitution condition. We agree that the order should be modified to delete the imposition of restitution.
In this instance, the trial court assessed a punishment of seven years' community supervision and $9,085 in restitution in its order of deferred adjudication. When an accused receives deferred adjudication, however, no sentence is imposed. Taylor v. State, 131 S.W.3d 497, 502 (Tex. Crim. App. 2004). Thus, when guilt is adjudicated, the order adjudicating guilt sets aside the order deferring adjudication. Id.; Abron v. State, 997 S.W.2d 281, 282 (Tex. App.—Dallas 1998, pet. ref'd) ("The trial court's Judgment Adjudicating Guilt expressly sets aside the underlying deferred adjudication order and declares it to be 'of no further force and effect.'"). Here, the trial court sentenced appellant to ten years' confinement in the order adjudicating guilt. The trial court, however, did not mention any fine or restitution in its adjudication. In fact, the trial court neither orally pronounced a fine or restitution nor did it mention a fine or restitution in its written judgment. Therefore, because the trial court did not include restitution as part of its adjudication of guilt, restitution could not later be imposed as a term of probation in the court's shock probation order.
When a trial court imposes an invalid condition of community supervision, the proper remedy is to reform the judgment by removing the condition. Ex parte Pena, 739 S.W.2d 50, 51 (Tex. Crim. App. 1987). Accordingly, we sustain appellant's sole issue and modify the Order Placing Defendant on Probation to delete the imposition of restitution.
CONCLUSION
As modified, we affirm the trial court's Order Placing Defendant on Probation.
/David Evans/
DAVID EVANS
JUSTICE Do Not Publish
TEX. R. APP. P. 47
131639RF.U05
JUDGMENT
On Appeal from the 194th Judicial District Court, Dallas County, Texas
Trial Court Cause No. F07-00193-M.
Opinion delivered by Justice Evans. Justices Francis and Stoddart participating.
Based on the Court's opinion of this date, the order of the trial court is MODIFIED as follows:
condition of community supervision (q) is deleted from the Order Placing Defendant on Probation Under Article 42.12, Section 3(e) Code of Criminal Procedure.As MODIFIED, the order is AFFIRMED. Judgment entered this 2nd day of May, 2018