COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-12-00085-CR
JERRY PAUL LUNDGREN APPELLANT
V.
THE STATE OF TEXAS STATE
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FROM COUNTY COURT AT LAW OF WISE COUNTY
TRIAL COURT NO. CR-66896
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MEMORANDUM OPINION1 ON REMAND
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This appeal is before us after a remand from the court of criminal appeals.
See Tex. R. App. 78.1(d). On original submission, we held that Appellant’s
violations of his community-supervision terms, which occurred after his
negotiated sentence of community supervision was imposed but before
Appellant’s motion for new trial was overruled by operation of law, subjected him
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See Tex. R. App. P. 47.4.
to revocation. We concluded that the trial court, therefore, did not err by denying
Appellant’s motion to quash the State’s motion to revoke his community
supervision based on the alleged violation occurring before his community-
supervision judgment became final. Lundgren v. State, 417 S.W.3d 11, 22 (Tex.
App.—Fort Worth 2013).
The court of criminal appeals held, however, that Appellant’s timely and
effective filing of a motion for new trial retroactively tolled the commencement of
his community supervision; therefore, the terms of Appellant’s community
supervision were not in effect one week after Appellant pleaded guilty to DWI
when Appellant was again arrested for DWI but before Appellant’s motion for
new trial was overruled by operation of law. Lundgren v. State, No. PD-1322-13,
2014 WL 2865806, at *5–6 (Tex. Crim. App. June 25, 2014). As a result, the trial
court should have granted Appellant’s motion to quash the State’s motion to
revoke Appellant’s community supervision. Id. at *6. The court of criminal
appeals reversed our prior judgment and remanded to this court “for further
proceedings not inconsistent with this opinion.” Id.; see Tex. R. App. P. 78.1(d).
Based on the court of criminal appeals’ reasoning, we hold that the trial
court erred by denying Appellant’s motion to quash because the judgment upon
which the community supervision was based was not a final judgment at the time
the alleged violations occurred. We sustain Appellant’s first issue, reverse the
trial court’s order denying Appellant’s motion to quash, and order the motion to
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revoke community supervision dismissed. We need not address Appellant’s other
issues. See Tex. R. App. P. 47.1; Lundgren, 2014 WL 2865806, at *6.
/s/ Lee Gabriel
LEE GABRIEL
JUSTICE
PANEL: DAUPHINOT, WALKER, and GABRIEL, JJ.
DO NOT PUBLISH
Tex. R. App. P. 47.2(b)
DELIVERED: August 21, 2014
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Jerry Paul Lundgren v. State
Combined Opinion