PD-0597-15
PD-0597-15 COURT OF CRIMINAL APPEALS
AUSTIN, TEXAS
Transmitted 5/18/2015 12:00:00 AM
Accepted 5/19/2015 3:41:27 PM
ABEL ACOSTA
COURT OF CRIMINAL APPEALS CLERK
PD-_______-15
Bernard Winfield Shortt, Appellant
v.
State of Texas, Appellee.
On Discretionary Review from
No. 05-13-01639-CR
Fifth Court of Appeals
On Appeal from No. F07-00193
194th Judicial District Court
Dallas County
Motion to Extend Time to File
Petition for Discretionary Review
Michael Mowla
445 E. FM 1382 No. 3-718
Cedar Hill, Texas 75104
Phone: 972-795-2401
Fax: 972-692-6636
michael@mowlalaw.com
Texas Bar No. 24048680
Attorney for Appellant May 19, 2015
To the Honorable Judges of the Court of Criminal Appeals:
Appellant Bernard Winfield Shortt moves for an extension of time of 30
days to file a petition for discretionary review:
1. On May 12, 2015, in Shortt v. State, 05-13-01639-CR (Tex. App.
Dallas, May 12, 2015), the Court of Appeals dismissed Appellant’s appeal,
claiming lack of jurisdiction. See attached.
2. The petition for discretionary review is due on June 11, 2015.
3. For good cause, Appellant asks for an extension of 30 days until July
11, 2015 to file the petition for discretionary review.
4. No previous extension to file the petition for discretionary review has
been filed.
5. Appellant relies on the following facts as good cause for the requested
extension: undersigned counsel Michael Mowla just completed a brief in a large
federal tax fraud case in USA v. Perez, 15-10026, which was filed in the Fifth
Circuit on May 15, 2015.
6. Further, Mowla has the following briefs, petitions for discretionary
review, or other pleadings due soon:
Motion and Brief under 28 U.S.C. § 2255 in USA v. Boutte, 4-12-CR-
00249, to be filed in the Eastern District of Texas.
Appellant’s Brief due in USA v. Wafer, 15-10089, Fifth Circuit, due
May 27, 2015.
Page 2 of 4
Petition for Rehearing En Banc in USA v. Trevino, 13-50849, Fifth
Circuit, due June 4, 2015, 2015.
Reply Brief in a proceeding 28 U.S.C. § 2254 in Esparza v. Director,
4-14-CV-00694, Eastern District of Texas, due June 19, 2015.
Two applications for writs of habeas corpus under Article 11.072 and
11.09 expected to be filed in the next few weeks in Denton and
Tarrant Counties.
7. In addition, Mowla was recently appointed in a death penalty case
under Article 11.071 in Ex parte Kenneth Thomas, F86-85539.
8. Mowla also continues to work on a federal habeas corpus death
penalty case, Jones v. Stephens, 4:05-CV-638, Northern District of Texas.
9. Finally, Mowla also continues to work on several habeas cases
involving the underlying issue in Miller v. Alabama, 132 S.Ct. 2455 (2012).
10. This Motion is not filed for purposes of delay, but so that justice may
be served.
Prayer
Appellant prays that this Court grant this motion for an extension of time to
file a petition for discretionary review.
Respectfully submitted,
Page 3 of 4
Michael Mowla
445 E. FM 1382 No. 3-718
Cedar Hill, Texas 75104
Phone: 972-795-2401
Fax: 972-692-6636
michael@mowlalaw.com
Texas Bar No. 24048680
Attorney for Appellant
/s/ Michael Mowla
By: Michael Mowla
Certificate of Service
I certify that on May 16, 2015, a true and correct copy of this document was
served by email on the District Attorney’s Office, Dallas County, Appellate
Division to Lori Ordiway at lori.ordiway@dallascounty.org, Lisa Smith at
lisa.smith@dallascounty.org, and on Marissa Elmore at
Marisa.Elmore@dallascounty.org; and by email on the State Prosecuting Attorney
to Lisa McMinn at Lisa.McMinn@spa.texas.gov, and John Messinger at
john.messinger@spa.state.tx.us. See Tex. Rule App. Proc. 9.5 (2015) and 68.11
(2015).
/s/ Michael Mowla
By: Michael Mowla
Page 4 of 4
DISMISS; Opinion Filed May 12, 2015.
S In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-13-01639-CR
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
MEMORANDUM OPINION
Before Justices Francis, Evans, and Stoddart
Opinion by Justice Evans
Appellant Bernard Winfield Shortt appeals from an order granting him shock probation
which imposed restitution as a condition of probation. Appellant contends the order violates his
Fifth Amendment right against double jeopardy and requests that this court delete the restitution
order. The State did not agree there was a constitutional infirmity, but agreed for statutory
reasons that the trial court erred by ordering appellant to pay restitution and requested that this
Court modify the order to delete the condition requiring restitution. After a review of the issue
before us, we dismiss the appeal for want of jurisdiction.
BACKGROUND
In January 2007, appellant was indicted for burglary of a habitation. On October 12,
2007, appellant signed a judicial confession and a plea agreement which recommended that he
receive seven years’ deferred community supervision as his sentence. Appellant waived trial by
jury and entered a guilty plea. The court accepted appellant’s plea but did not make a finding of
guilt and passed the case to a later date. On December 7, 2007, the court held a hearing and
placed appellant on seven years’ deferred adjudication and ordered payment of $9,085 in
restitution. The conditions for appellant’s community supervision required, among others things,
that he make monthly payments toward his restitution, complete 800 hours of community
service, and report to a supervision officer.
On May 17, 2013, the State filed a motion to revoke probation or proceed with an
adjudication of guilt after appellant violated numerous conditions of his probation including
failure to pay restitution. At the subsequent revocation hearing, appellant entered a plea of
“true” to the State’s allegations. Appellant also signed a plea agreement in which he admitted to
violating the conditions of his community supervision including the failure to pay restitution.
The trial court concluded that appellant had violated the terms of his probation and entered a
Judgment Adjudicating Guilt. This judgment sentenced appellant to ten years’ confinement.
The trial court did not orally pronounce a fine or restitution, and the section in the judgment
referring to restitution reads: “Restitution: $N/A.”
Appellant began his incarceration on May 31, 2013 and remained incarcerated until
October 25, 2013 when he returned to court for a shock probation hearing. At the hearing, the
trial court asked appellant if he owed restitution and appellant’s counsel objected. Counsel
argued that because the trial court did not pronounce restitution during sentencing at the
revocation hearing, the trial court could not include it among the conditions of appellant’s shock
probation. At the conclusion of the hearing, the court granted the request for shock probation,
suspended the ten-year sentence of imprisonment, placed appellant on five years’ community
supervision and ordered, over counsel’s objection, appellant to pay restitution. The trial court
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required payment of restitution as a condition of community supervision. Condition (q) of
appellant’s conditions of community supervision addressed the issue of restitution:
Make restitution in the amount of $6,178.00 for the loss sustained by the injured
party. Payments are to be paid through the community supervision officer of this
court at the rate of $110.00 per month. First payment is due on or before
11/30/2013 and a like payment is due on or before the first day of each month
thereafter until paid in full[.]
Appellant then filed a notice of appeal regarding the restitution provision in the order.
ANALYSIS
In his sole point of error, appellant asserts 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 did not concede that a violation of appellant’s Fifth Amendment rights had
occurred, but did concede that the court lacked statutory authority to include the restitution in the
order granting shock probation. 1 We do not reach these arguments because of the jurisdictional
impediment in this case.
The trial court certified appellant could appeal this case and, as noted above, both
appellant and the State filed briefs treating the case as appealable. But the parties cannot confer
jurisdiction on this court even if they agreed to do so. See State v. Roberts, 940 S.W.2d 655, 657
(Tex. Crim. App. 1996) (“subject matter jurisdiction cannot be conferred by agreement of the
parties; jurisdiction must be vested in a court by constitution or statute”), overruled on other
1
The trial court sentenced appellant to ten years’ confinement in the order adjudicating guilt but did not
mention restitution. The Texas Court of Criminal Appeals has twice concluded that restitution is punitive in
nature. Weir v. State, 278 S.W.3d 364, 366 (Tex. Crim. App. 2009) (citing Ex parte Cavazos, 203 S.W.3d 333, 338
(Tex. Crim. App. 2006)). The court has held that if restitution is ordered, judgments are required to state the amount
of restitution. Bailey v. State, 160 S.W.3d 11, 15 (Tex. Crim. App. 2004) (citing TEX. CODE CRIM. PROC. ANN. art.
42.01(25)). The court of criminal appeals has further concluded that where neither the parties nor the trial court
mention restitution during the sentencing hearing or as part of the oral pronouncement of sentence yet restitution
appears in the written judgment, the defendant is entitled to have the order of restitution deleted from the judgment.
Burt v. State, 445 S.W.3d 752, 757-58 (Tex. Crim. App. 2014) (citing numerous authorities). Here, we understand
the State to argue that because the trial court did not include restitution as part of its pronouncement of its
adjudication of guilt, no provision of article 42.12 authorized the court to impose restitution later as a term of
probation in the trial court’s shock probation order. The court of criminal appeals has not reached this issue.
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grounds by State v. Madrano, 67 S.W.3d 892 (Tex. Crim. App. 2002); see also Zepeda v. State,
993 S.W.2d 167 (Tex. App.—1999, pet. ref’d) (declining to construe appeal for denial of shock
probation as a writ of habeas corpus because appellate court lacks original habeas corpus
jurisdiction in criminal matters). As other Texas courts have previously held, we hold that there
is no statutory authority which confers jurisdiction upon an appellate court jurisdiction to
consider an appeal from an order imposing shock probation pursuant to article 42.12 of the Texas
Code of Criminal Procedure. See TEX. CODE CRIM. PROC. ANN. art. 42.12, § 6 (West Supp.
2014); Perez v. State, 938 S.W.2d 761, 762-63 (Tex. App.—Austin 1997, pet. ref’d) (dismissing
appeal for lack of jurisdiction because defendant cannot appeal an order granting shock
probation); Pippin v. State, 271 S.W.3d 861 (Tex. App.—Amarillo 2008, no pet.) (same); see
also Houlihan v. State, 579 S.W.2d 213 (Tex. Crim. App. 1979) (dismissing appeal of order
denying motion for shock probation); Basaldua v. State, 558 S.W.2d 2, 5 (Tex. Crim. App. 1977)
(dismissing appeal of order denying modification of conditions of shock probation); see also
Roberts v. State, No. 04-10-00558-CR, 2010 WL 4523788 (Tex. App.—San Antonio Nov. 10,
2010, pet. ref’d) (mem. op., not designated for publication) (dismissing appeal of shock
probation); Thursby v. State, 05-94-01772-CR, 1997 WL 472310, at *3 (Tex. App.—Dallas Aug.
20, 1997, pet. ref’d) (mem. op., not designated for publication) (same). The statute currently
permits appeals of an order revoking probation. See TEX. CODE CRIM. PROC. ANN. art. 42.12,
§ 23(b) (defendant “may appeal the revocation”). Because appellant appeals from an order
granting shock probation, we do not have jurisdiction to consider his appeal.
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CONCLUSION
We dismiss this appeal for lack of jurisdiction.
/ David Evans/
DAVID EVANS
JUSTICE
Do Not Publish
TEX. R. APP. P. 47
131639F.U05
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S
Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
BERNARD WINFIELD SHORTT, On Appeal from the 194th Judicial District
Appellant Court, Dallas County, Texas
Trial Court Cause No. F07-00193-M.
No. 05-13-01639-CR V. Opinion delivered by Justice Evans.
Justices Francis and Stoddart participating.
THE STATE OF TEXAS, Appellee
Based on the Court’s opinion of this date, the appeal is dismissed for want of jurisdiction.
Judgment entered this 12th day of May, 2015.
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