Opinion issued December 13, 2012.
In The
Court of Appeals
For The
First District of Texas
NO. 01-12-00018-CR
____________
IN RE JOSÉ ARMANDO CASAS, Relator
Original Proceeding on Petition for Writ of Mandamus
MEMORANDUM OPINION
Relator José Armando Casas requests mandamus relief from the trial court’s
October 20, 2011 order. In that order, the trial court extended the period of
community supervision to one additional year—the maximum allowed under the
circumstances—in place of a two-year extension it had erroneously imposed by an
October 7, 2011 order. Casas contends that the trial court lacked jurisdiction to
enter the October 20 order because the October 7 order was legally incorrect, and
Casas’s term of community service had otherwise expired before the trial court
signed the October 20 order. Casas claims that the October 20 order operates as an
illegal restraint on his liberty.1 For the reasons that follow, we disagree and deny
the requested relief.
Background
In October 2009, Casas pleaded guilty to the misdemeanor offense of
indecent exposure.2 See TEX. PENAL CODE ANN. § 21.08 (West 2011). In
accordance with Casas’s agreement with the State, the trial court deferred
adjudication, placed Casas on one year of community supervision, and assessed a
$2000 fine, of which $1600 was probated. On September 15, 2010, the trial court
signed an order extending the period of community supervision by another year.
On October 7, 2011, four days before Casas’s term of community supervision was
due to expire, the trial court signed a “3rd Amended Conditions of Community
Supervision, and noted that it was “[a]mended to extend probation two [2] years
1
We dismissed Casas’s separate appeal from this order for want of jurisdiction. See
Casas v. State, No. 01-11-010550-CR, 2012 WL 1893748 (Tex. App.—Houston
[1st Dist.] May 24, 2012, no pet.).
2
Original proceeding from the County Criminal Court at Law No. 8, Harris County,
Texas, Trial Court Case No. 1589399, The Honorable Jay Karahan, presiding.
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due to Defendant’s lack of progress in Sex Offender Treatment.” As he had with
the prior orders setting forth the conditions and amended conditions for community
supervision, Casas appeared before the trial court and signed the October 7 order.
On October 20, 2011, Casas moved to set aside the October 7 modification
of community supervision order and discharge him from community supervision.
Citing article 42.12, section 22 of the Texas Code of Criminal Procedure, Casas
contended that the trial court lacked the authority to extend the community
supervision for two more years and, because the valid term of community
supervision had already expired, the trial court lacked jurisdiction over his person.
The trial court denied Casas’s motion in part and ordered that “[t]he modification
is to extend to a maximum [of] 3 (three) years, community supervision—extend
only 1 year from Oct. 10, 2011.”
Discussion
Standard for Entitlement to Mandamus Relief
To be entitled to mandamus relief in a criminal case, a relator must show
that he has no adequate remedy at law to redress his alleged harm, and that what he
seeks to compel is a ministerial act, not involving a discretionary or judicial
decision. State ex rel. Young v. Sixth Judicial Dist. Ct. App., 236 S.W.3d 207, 210
(Tex. Crim. App. 2007) (orig. proceeding).
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Deferred Adjudication
Article 42, section 5 of the Texas Code of Criminal Procedure addresses
community supervision in cases where the trial court has deferred adjudication.
TEX. CODE CRIM. PROC. ANN. ART. 42.12, § 5(a). It provides that, in a
misdemeanor case like this one, the initial period of community supervision may
not exceed two years, “but the trial court may increase the maximum period of
supervision in the manner provided by Section 22(c) or 22A of this article.” Id.
Section 22 allows the trial court to continue or modify community supervision if,
after a hearing, the trial court determines that the defendant violated a condition of
community supervision. TEX. CODE CRIM. PROC. ANN. § 22(a). Subsection (c)
provides that “[t]he judge may extend a period of community supervision under
this section as often as the judge determines is necessary, but . . . except as
otherwise provided by this subsection, the period of community supervision in a
misdemeanor case may not exceed three years.” Id. § 22(c).
Analysis
Casas relies on the Court of Criminal Appeals’ decisions in Ex parte
McCain, 67 S.W.3d 204 (Tex. Crim. App. 2002), and Ex parte Seidel, 39 S.W.3d
221 (Tex. Crim. App. 2001), in contending that, because the trial court lacked any
authority to extend his community supervision by two years, the trial court’s
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October 7 order is void. McCain and Seidel, however, are inapposite; they concern
a conviction and a judgment of dismissal, respectively—not community
supervision orders. See McCain, 67 S.W.3d at 210 n.16; Seidel, 39 S.W.3d at 224.
“[I]mposition of a sentence is profoundly different from the granting of community
supervision.” Speth v. State, 6 S.W.3d 530, 532–33 (Tex. Crim. App. 1999); see
Harris v. State, 185 S.W.3d 524, 525 (Tex. App.—Amarillo 2006, no pet.) (noting
that, when law does not authorize punishment, sentence imposing that punishment
is void, but community supervision “is separate and distinct from the sentence, and
therefore, an unlawful grant of community supervision is not subject to the rules
that govern unlawful sentences”). The law constrains the assessment of
punishment; “[a]n award of community supervision,” on the other hand, is not a
right, but a contractual privilege, and conditions thereof are terms of the contract
entered into between the trial court and the defendant.” Speth, 6 S.W.3d at 534.
“[C]onditions not objected to are affirmatively accepted as terms of the contract,”
so that a defendant waives the objectionable condition by failing to raise it first in
the trial court. See id.
Casas did not waive his complaint, but he failed to alert the trial court to his
objection when he signed the “Third Amended Conditions of Community
Supervision.” Casas’s delay in moving to correct the probation term set by the
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October 7 order until after the prior community supervision order expired did not
deprive the court of jurisdiction to correct the objectionable condition. Cf. Ex
parte Williams, 65 S.W.3d 656, 657–58 (Tex. Crim. App. 2001) (holding that trial
court’s order granting community supervision where defendant was statutorily
ineligible for community supervision was not void or illegal). That order extends
Casas’s community supervision for an additional year, making a total of three
years’ community supervision—a length of time permitted under the statute.3 See
Basaldua v. State, 558 S.W.2d 2, 5 (Tex. Crim. App. 1977).
Conclusion
We hold that he trial court continued to have jurisdiction over Casas when it
signed the October 20 modification order. We further hold that the trial court did
not subject Casas to an illegal restraint by signing the October 20 order. We deny
Casas’s request for mandamus relief.
Jane Bland
Justice
Panel consists of Chief Justice Radack and Justices Bland and Huddle.
Do not publish. TEX. R. APP. P. 47.2(b).
3
A trial court’s order extending community supervision for an additional year
constitutes a “modification of the conditions of community supervision.” TEX.
CODE CRIM. PROC. ANN. art. 42.12, § 22(a)(2) (West Supp. 2012).
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