Lundgren, Jerry Paul

IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
NO. PD-1322-13

JERRY PAUL LUNDGREN, Appellant

v.

THE STATE OF TEXAS

ON APPELLANT’S PETITION FOR DISCRETIONARY REVIEW
FROM THE SECOND COURT OF APPEALS
WISE COUNTY

H ERVEY, J., delivered the opinion of the unanimous Court. K ELLER, P.J., filed
a concurring opinion.

OPINION

Appellant, Jerry Paul Lundgren, was arrested for driving while intoxicated. He

pled guilty pursuant to a plea-bargain agreement, waived his right to appeal, and was

placed on community supervision. About a week later, Appellant was arrested again.

After his second arrest, Appellant filed a motion for new trial and a notice of appeal in his

first case. Later, the State filed a motion to revoke Appellant’s community supervision,
 Lundgren–2

and the trial court did so. Appellant argues that his filing of a timely notice of appeal and

motion for new trial retroactively stayed the commencement of his community

supervision; therefore, the court of appeals erred when it upheld the trial court’s ruling.

Because we conclude under these facts that Appellant’s filing of a timely and effective

motion for new trial retroactively stayed the commencement of his community

supervision until it was overruled by operation of law, we will reverse the judgment of the

court of appeals and remand this case.

B ACKGROUND

A. Trial

Appellant was arrested for misdemeanor driving while intoxicated (“DWI”). On

January 7, 2011, Appellant pled guilty pursuant to a plea-bargain agreement and was

sentenced to 365 days’ confinement, which was suspended for 18 months of community

supervision. The judgment stated that Appellant’s community supervision commenced the

same day the judgment was entered. Appellant’s plea-bargain agreement, which the trial

court followed, included two waivers of appeal, the details of the bargain, and the

signatures of Appellant and his counsel. On January 14, 2011—a week after Appellant

pled guilty and his punishment was assessed—he was arrested for DWI again.1

After Appellant’s arrest for the second DWI, Appellant filed a timely notice of

appeal and motion for new trial in his first case. His notice of appeal was filed on January

1
Appellant was arrested after police responded to report of an intoxicated man, who
turned out to be Appellant, asleep in a silver truck in a drive-through lane of Whataburger.
 Lundgren–3

19, 2011, and his motion for new trial was filed on January 28, 2011. After Appellant’s

filings, the State filed a motion to revoke Appellant’s community supervision (from the

first offense) for violating conditions of his community supervision (because of the

second offense). Appellant’s appeal was dismissed by the court of appeals on March 3,

2011, his motion for new trial was overruled by operation of law on March 23, 2011, and

the court of appeals issued its mandate dismissing Appellant’s appeal on May 12, 2011.

See T EX. R. A PP. P. 21.8(a) & (c) (stating that a motion for new trial that is not timely

ruled upon is denied by operation of law 75 days after the original sentence is imposed or

suspended in open court). The court of appeals asked Appellant to show grounds that his

appeal conferred jurisdiction on the court of appeals, but the court never received a

response. As a result, the court of appeals dismissed Appellant’s appeal. See Lundgren v.

State, No. 02-11-00023-CR, 2011 WL 754344 (Tex. App.—Fort Worth Mar. 3, 2011, no

pet.) (per curiam) (mem. op.) (not designated for publication).

After mandate issued, the trial court entered two additional judgments in

Appellant’s first DWI case. First, it entered a Post Mandate Enforcement of Prior

Judgment of Conviction that stated Appellant’s community supervision began the day the

judgment was entered, June 22, 2011. Second, it entered a judgment nunc pro tunc to

reflect that Appellant’s driver’s license would be suspended due to his being convicted of

DWI. The second judgment also reflected that Appellant’s community supervision began

on June 22, 2011 and not January 7, 2011, as the original judgment stated.
 Lundgren–4

In response to the State’s motion to revoke, Appellant filed a motion to quash the

State’s revocation motion because Appellant claimed that he did not violate his

community supervision. His argument was based on the fact that he had timely filed a

motion for new trial and notice of appeal in his first case; therefore, his community

supervision became enforceable only after the appellate mandate issued and his motion

for new trial was overruled. To support his argument, Appellant cited Ross v. State, 523

S.W.2d 402, 405 (Tex. Crim. App. 1975) and McConathy v. State, 544 S.W.2d 666 (Tex.

Crim. App. 1976), respectively.2 The trial court overruled Appellant’s motion to quash

and concluded that Appellant failed to secure the permission of the court to appeal or file

a motion for new trial. In addition, the court ruled that it could revoke Appellant’s

community supervision because Appellant’s supervision was effective on January 7,

2011—the date the original judgment was signed. Therefore, the trial court reasoned,

Appellant’s second arrest was a violation of the conditions of his community supervision.

On February 2, 2012, the trial court revoked Appellant’s community supervision

and remanded him to the custody of the sheriff to discharge a 300 day term of

confinement.3 Appellant timely appealed the trial court’s revocation order.

2
At a hearing on the motion to quash, Appellant’s counsel argued that “[t]he Notice of
Appeal and the Motion for New Trial were filed before the State’s Motion to Revoke was filed,
and, because of that, we would ask the Motion to Revoke be quashed in that the terms and
conditions of probation did not take effect until a later date.”
3
At the hearing on the State’s motion to revoke, the judge stated that he would sentence
Appellant to only 300 days confinement, and not the entire 365 days to which he was originally
sentenced.
 Lundgren–5

B. Appeal

On appeal, Appellant and the State advanced largely the same arguments. The

court of appeals began its analysis by noting, “all parties agree that the terms and

conditions of community supervision are not in effect while a case is on appeal or during

the pendency of a motion for new trial.” Lundgren v. State, 417 S.W.3d 11, 15–16 (Tex.

App.—Fort Worth 2013) (citing Ross, 523 S.W.2d at 405; Humphries v. State, 261

S.W.3d 144, 145 (Tex. App.—San Antonio 2008, no pet.); McConnell v. State, 34 S.W.3d

27 (Tex. App.—Tyler 2000, no pet.)). The court of appeals also recognized that precedent

from this Court “suggests” that filing a motion for new trial or an appeal from a judgment

ordering community supervision would retroactively stay the commencement of an

appellant’s community supervision until the motion and appeal are resolved and the

judgment becomes final. However, relying on an opinion from another court of appeals,

the court concluded that the trial court retained jurisdiction to “exercise its authority to

punish violations of its conditions of community supervision,” and that Appellant’s

timely “notice of appeal and motion for new trial were ineffective to retroactively act as a

cure for [the] violations.” Id. at 20 (quoting McConnell, 34 S.W.3d at 30). The court also

reasoned that its decision was proper because “the unique procedural posture of this case

requires a different result.” Id.

With respect to Appellant’s argument regarding the post-mandate judgments, the

court of appeals stated that, “[a]t the time of Appellant’s violation, . . . [Appellant’s]
 Lundgren–6

community supervision commenced seven days before the violation.” Id. Therefore, the

court concluded, the post-mandate judgments entered by the trial court “did not alter what

occurred before they were entered.” Id.

Appellant then filed a petition for discretionary review, which we granted on two

grounds: (1) “The court of appeals, in a 2-1 decision, erred in holding that the terms and

conditions of the Defendant’s community supervision began, not when the court of

appeals’ mandate issued after a timely appeal was filed, but at the earlier date when the

trial court entered its original judgment based upon the Defendant’s negotiated plea of

guilty,” and (2) “The court of appeals, in a 2-1 decision, erred in holding that the

subsequent judgment, issued by the trial court after a mandate had issued by the court of

appeals, did not control the beginning date of the Defendant’s terms and conditions of

probation even though the State did not challenge or appeal that subsequent judgment.”

A RGUMENTS OF THE PARTIES

Appellant argues that he was not on community supervision when he was alleged

to have violated the conditions of his supervision because his filing of a notice of appeal

and a motion for new trial retroactively stayed the commencement of his community

supervision. Therefore, Appellant asserts, the court of appeals erred when it held that the

trial court properly overruled Appellant’s motion to quash. In support of his argument,

Appellant cites caselaw from this Court and secondary source material. Appellant’s Brief

on the Merits, at 5 (citing Ross, 523 S.W.2d at 405; Delorme v. State, 488 S.W.2d 808,
 Lundgren–7

810 (Tex. Crim. App. 1973); Smith v. State, 478 S.W.2d 518, 520 (Tex. Crim. App.

1972)); 43B G EORGE E. D IX & J OHN M. S CHMOLESKY, T EXAS P RACTICE: C RIMINAL

P RACTICE AND P ROCEDURE § 55:137 (3d ed. 2011)).

The State agrees with Appellant that, once he appealed his conviction, state law is

clear that an appellant’s punishment, including community supervision, is stayed “while

the case is on appeal.” See Ross, 523 S.W.2d at 402. However, the State argues that the

cases cited by Appellant are distinguishable because in those cases “there was a jury or

judge verdict, or no waiver by appellant. The State is unaware of any Texas cases where

the [d]efendant pled guilty with a valid appellate waiver and subsequently appealed.” To

support its waiver argument, the State cites a number of cases from this Court. See

Monreal v. State, 99 S.W.3d 615, 617 (Tex. Crim. App. 2003); Ex parte Tabor, 565

S.W.2d 945, 946 (Tex. Crim. App. 1978); Ex parte Hogan, 556 S.W.2d 352, 353 (Tex.

Crim. App. 1977).

D ISCUSSION

A. Appellant’s notice of appeal did not toll the commencement of his community
supervision because his notice of appeal was ineffective.

We have addressed the finality of judgments in a number of lines of cases,4 and, in

4
See, e.g., Milburn v. State, 201 S.W.3d 749, 750 (Tex. Crim. App. 2006) (whether
previous felony conviction was final such that the appellant was not entitled to an instruction on
community supervision for a subsequent offense); Jones v. State, 711 S.W.2d 634, 636 (Tex.
Crim. App. 1986) (whether a previous conviction is final such that it can be used to enhance a
subsequent offense); Delorme, 488 S.W.2d at 810 (holding that, when an appeal is taken, the
terms of community supervision do not commence until the appellate mandate has issued and the
judgment is final); McConathy, 544 S.W.2d at 668 (holding that, if no notice of appeal is filed,
 Lundgren–8

the context of convictions on appeal, we have repeatedly held that a judgment of

conviction is not final while the conviction is on appeal. Milburn v. State, 201 S.W.3d

749, 752 (Tex. Crim. App. 2006). This is because of the possibility that the trial court’s

judgment “could be retroactively vitiated by the mere filing of a . . . notice of appeal.” Id.

at 753–54. Following this same rule, if a defendant files a timely and effective notice of

appeal, that filing stays the commencement of the community-supervision term imposed

until appellate mandate has issued affirming the judgment of conviction.5 See Delorme,

488 S.W.2d at 810; McConathy, 544 S.W.2d at 668 (applying the same nonfinality rule to

motions for new trial). However, the filing of an ineffective notice of appeal is treated

differently. See Tabor, 565 S.W.2d at 946 (enforcing a waiver of appeal and agreeing that

the filed notice of appeal was ineffective because the waiver of appeal was binding). If an

appellate court dismisses an appeal because the notice of appeal, though timely, was

ineffective to initiate the appellate process, then the judgment was “deemed to be final on

the date of sentencing.” Id.; Jones, 77 S.W.3d 819, 820 (Tex. Crim. App. 2002).

In this case, the record reflects that Appellant pled guilty pursuant to a plea-

bargain agreement that the State would recommend 18 months’ community supervision.

Appellant executed two different appellate waivers, and the trial court imposed an 18-

the terms of community supervision commence when a motion for new trial is overruled and the
trial-court judgment becomes final).
5
It is, of course, also possible that an appellate court could reverse the judgment of
conviction for which Appellant was placed on community supervision, which would vitiate the
conviction. See Milburn, 201 S.W.3d at 753–54.
 Lundgren–9

month term of community supervision pursuant to the plea-bargain agreement. After

Appellant was arrested again, he filed a notice of appeal in his first case, and the State

filed a motion to revoke Appellant’s community supervision. Appellant’s appeal was

dismissed for a lack of jurisdiction, and the court issued its mandate on May 12, 2011. On

February 2, 2012, the trial court revoked Appellant’s community supervision resulting

from his first DWI.

Appellant is correct that a timely and effective notice of appeal tolls the

commencement of a community-supervision term while the case is on appeal. But

Appellant’s timely notice of appeal was not effective in this case because he had entered

into a binding appellate waiver, as the court of appeals held. Thus, Appellant’s notice of

appeal failed to initiate the appellate process, and as a result, his community supervision

should have begun “on the date of sentencing.” Jones, 77 S.W.3d at 820; Tabor, 565

S.W.2d at 946.

However, the resolution of when Appellant’s community-supervision term

commenced is more complex because Appellant also filed a timely and effective motion

for new trial, and the State argues that a binding waiver of appeal applies to the filing of

notices of appeal and the filing of motions for new trial. We now turn to those questions.

B. A valid, express waiver of the right to appeal does not waive a defendant’s ability to
file a motion for new trial.

The authority for a defendant to appeal can be found in Article 44.02 of the Texas

Code of Criminal Procedure and Rule 25.2(a)(2) of the Texas Rules of Appellate
 Lundgren–10

Procedure. T EX. C ODE C RIM. P ROC. art. 44.02; T EX. R. A PP. P. 25.2(a)(2). Motions for

new trial are addressed in Rule 21 of the Texas Rules of Appellate Procedure. T EX. R.

A PP. P. 21. And while it is true that appeals and motions for new trial are both

organizationally located in the section “Appeals from Trial Court Judgments and Orders”

of the Texas Rules of Appellate Procedure, the topics are addressed in separate rules and

are handled differently.

For example, in some cases, Rule 21.2 specifically contemplates that a motion for

new trial is a prerequisite to presenting an issue on appeal. T EX. R. A PP. P. 21.2 (“A

motion for new trial is a prerequisite to presenting a point of error on appeal only when

necessary to adduce facts in the record.”). In addition, although motions for new trial and

notices of appeals are both filed at the trial-court level,6 only a trial court can grant or

overrule a motion for new trial (unless the motion is overruled by operation of law) and

only an appellate court can render judgment on appeal. See T EX. R. A PP. P. 21.1 (defining

new trial as the “rehearing of a criminal action after the trial court has . . . set aside a

finding or verdict of guilt”), 43.2 (delineating the types of judgments a court of appeals

may enter when considering an appeal from a trial court judgment). Moreover, when a

motion for new trial is filed, the trial court has the opportunity to reconsider the

proceedings and to correct any errors it may agree occurred in the defendant’s trial by

6
See Ex parte De Los Reyes, 392 S.W.3d 675, 677 (Tex. Crim. App. 2013) (noting that a
defendant must file a motion for new trial in the trial court); TEX . R. APP . P. 21.1; 25.2(c)(1)
(requiring that notices of appeal must be given in writing and filed with the trial court clerk).
 Lundgren–11

setting aside the defendant’s finding or verdict of guilt or sentencing. See T EX. R. A PP. P.

21.1, 21.9(a). In contrast, an appeal is an opportunity for a defendant to argue to a

different tribunal that his conviction was flawed despite the trial judge’s or jury’s

conclusion to the contrary. See B LACK’S L AW D ICTIONARY 118 (10th ed. 2014) (defining

“appeal” as “[t]o seek review (from a lower court’s decision) by a higher court . . . .”).

In sum, although the word “appeal” could be used colloquially to refer to a motion

for new trial or a notice of appeal in the sense that both procedural mechanisms serve a

review function, we hold that motions for new trial and appeals are sufficiently different

that an appellate waiver will not waive a defendant’s right to file a motion for new trial.

C. The trial court erred in revoking Appellant’s community supervision because it did
not commence until his motion for new trial was overruled by operation of law.

We now turn to the question of whether Appellant’s filing of a motion for new trial

retroactively stayed the commencement of his community-supervision term such that the

trial judge erred in overruling Appellant’s motion to quash.

Appellant filed a timely and effective motion for new trial.7 And we have held that

when a timely and effective motion for new trial is filed, and no notice of appeal was

given, or in this case an ineffective notice of appeal was filed and disposed of, the terms

of community supervision commence on the day the motion for new trial is overruled by

operation of law. See McConathy, 544 S.W.2d at 668.

7
The State makes no additional arguments regarding whether Appellant’s motion for new
trial was timely or effective.
 Lundgren–12

We hold that Appellant’s timely and effective filing of a motion for new trial tolled

the commencement of his community supervision, unlike his ineffective notice of appeal.

In this case, Appellant had taken action to suspend the finality of the judgment by filing

an effective and timely motion for new trial. Because Appellant’s motion for new trial

was timely and effective, the mere filing of it did retroactively render the judgment

placing him on community supervision nonfinal. As a result, the commencement of his

community-supervision term was also stayed until the motion for new trial was overruled.

Thus, the judgment placing Appellant on community supervision for his first DWI

became final on March 23, 2011, when his motion for new trial was overruled by

operation of law. See McConathy, 544 S.W.2d at 668. The court of appeals erred when it

affirmed the ruling of the trial court denying Appellant’s motion to quash. See id.

In light of the disposition of this case, we need not reach the question of whether

the trial court’s post-mandate enforcement judgment altered the commencement date of

Appellant’s community supervision. We reverse the judgment of the court of appeals and

remand this case to the court of appeals for further proceedings not inconsistent with this

opinion.

Hervey, J.

Delivered: June 25, 2014

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