Shortt, Bernard Winfield

PD-0597-15
COURT OF CRIMINAL APPEALS
AUSTIN, TEXAS
Transmitted 12/10/2015 1:18:05 PM
December 10, 2015
No. PD-0597-15 Accepted 12/10/2015 1:37:05 PM
ABEL ACOSTA
CLERK

IN THE
COURT OF CRIMINAL APPEALS
OF TEXAS

BERNARD WINFIELD SHORTT, Appellant/Petitioner

vs.

THE STATE OF TEXAS, Appellee/Respondent

On discretionary review of a decision by the
Court of Appeals, Fifth District of Texas at Dallas,
in Cause No. 05-13-01639-CR

On appeal from the 194th Judicial District Court of Dallas County, Texas
in Trial Court Cause No. F07-00193-M

STATE’S BRIEF

Counsel of Record:
Susan Hawk Marisa Elmore
Criminal District Attorney Assistant District Attorney
Dallas County, Texas State Bar No. 24037304
Frank Crowley Courts Building
133 N. Riverfront Boulevard, LB-19
Dallas, Texas 75207-4399
(214) 653-3625
(214) 653-3643 fax
marisa.elmore@dallascounty.org

Attorneys for the State of Texas
 TABLE OF CONTENTS

INDEX OF AUTHORITIES ...................................................................... iii

STATEMENT OF THE CASE .................................................................... 1

STATEMENT OF FACTS .......................................................................... 2

SUMMARY OF ARGUMENT ................................................................... 6

ARGUMENT ............................................................................................. 7

RESPONSE TO APPELLANT'S ISSUE ONE: The Fifth Court
of Appeals correctly applied Texas case law and dismissed
Appellant’s direct appeal from the order of shock probation for
lack of jurisdiction. ................................................................... 7

RESPONSE TO APPELLANT'S ISSUE TWO: This Court
should decline to treat Appellant’s appeal as a writ of habeas
corpus because Code of Criminal Procedure article 11.072
provides the exclusive avenue for defendants seeking a remedy
when they have a complaint about the constitutionality of a
condition of community supervision. Appellant also fails the
test for entitlement to a writ of mandamus, and the facts here do
not provide an exceptional case calling on this Court to treat
Appellant’s appeal as a writ of habeas corpus or mandamus. .. 19
PRAYER .................................................................................................. 30

CERTIFICATE OF WORD-COUNT COMPLIANCE .............................. 30

CERTIFICATE OF SERVICE .................................................................. 30

ii
 INDEX OF AUTHORITIES

Cases

Abbott v. State,
271 S.W.3d 694 (Tex. Crim. App. 2008) ...................................... 11, 12, 13

Bailey v. State,
160 S.W.3d 11 (Tex. Crim. App. 2004) .................................................... 24

Basaldua v. State,
558 S.W.2d 2 (Tex. Crim. App. 1977)............................................. 9, 18, 23

Bautsch v. Galveston,
27 Tex. Ct. App. 342, 11 S.W. 414 (1889) ........................................... 13, 15

Blanton v. State,
369 S.W.3d 894 (Tex. Crim. App. 2012) .................................. 11, 16, 18, 19

Burt v. State,
445 S.W.3d 752 (Tex. Crim. App. 2014) .................................................. 20

Cain v. State,
947 S.W.2d 262 (Tex. Crim. App. 1997) .................................................. 10

Celani v. State,
940 S.W.2d 327 (Tex. App.—San Antonio 1997, pet. ref’d) ................. 12, 18

Duran v. State,
844 S.W.2d 745 (Tex. Crim. App. 1992) ....................................... 13, 14, 15

Ex parte Fitzpatrick,
320 S.W.2d 683 (1959) ............................................................................ 24

Ex parte Garcia,
353 S.W.3d 785 (Tex. Crim. App. 2011) .................................................. 25

Ex parte Green,
457 S.W.3d 90 (Tex. Crim. App. 2015) .................................................... 28

iii
Ex parte Roberts,
409 S.W.3d 759 (Tex. App.—San Antonio 2013, no pet.) .................... 22, 24

Ex parte Rodriguez,
169 Tex. Crim. 367, 334 S.W.2d 294 (1960) ............................................. 24

Ex parte Thomas,
906 S.W.2d 22 (Tex. Crim. App. 1995) .................................................... 25

Houlihan v. State,
579 S.W.2d 213 (Tex. Crim. App. 1979) .............................................. 9, 23

In re Bonilla,
424 S.W.3d 528 (Tex. Crim. App. 2014) (orig. proceeding)....................... 20

King v. State,
942 S.W.2d 667 (Tex. App.—Eastland 1997, pet. ref’d) ............................ 14

Marin v. State,
851 S.W.2d 275 (Tex. Crim. App. 1993) ............................................. 10, 17

Olowosuko v. State,
826 S.W.2d 940 (Tex. Crim. App. 1992) ............................................. 11, 17

Perez v. State,
938 S.W.2d 761 (Tex. App.—Austin 1997, pet. ref’d) ............. 8, 9, 10, 18, 28

Phynes v. State,
828 S.W.2d 1 (Tex. Crim. App. 1992)...................................................... 10

Pippin v. State,
271 S.W.3d 861 (Tex. App.—Amarillo 2008, no pet.) ................................ 9

Sanchez v. State,
340 S.W.3d 848 (Tex. App.—San Antonio 2011, no pet.) .................... 11, 12

Shortt v. State,
No. 05-13-01639-CR, 2015 Tex. App. LEXIS 4808 (Tex. App.—Dallas
May 12, 2015, pet. granted) (mem. op., not designated for publication) ....... 2
iv
Smith v. Sohmert,
962 S.W.2d 590 (Tex. Crim. App. 1998) .................................................. 20

Tamez v. State,
620 S.W.2d 586 (Tex. Crim. App. 1981) .................................................. 14

Taylor v. State,
131 S.W.3d 497 (Tex. Crim. App. 2004) .............................................. 4, 21

Tilton v. Marshall,
925 S.W.2d 672 (Tex. 1996) .................................................................... 20

Villanueva v. State,
252 S.W.3d 391 (Tex. Crim. App. 2008) .................................. 20, 21, 23, 28

Weir v. State,
278 S.W.3d 364 (Tex. Crim. App. 2009) .................................................. 21

Wiltz v. State,
863 S.W.2d 463 (Tex. Crim. App. 1993) ............................................. 14, 15

Statutes

Tex. Code Crim. Proc. Ann. art. 11.05 (West 2015)..................................... 24

Tex. Code Crim. Proc. Ann. art. 11.072 (West 2015) ........ 19, 21, 22, 24, 26, 28

Tex. Code Crim. Proc. Ann. art. 42.037 (West Supp. 2014) ......................... 20

Tex. Code Crim. Proc. Ann. art. 42.12 (West Supp. 2014) ..... 11, 14, 15, 16, 21

Tex. Code Crim. Proc. Ann. art. 44.02 (West 2006)................................ 12, 13

Tex. Code Crim. Proc. Ann. art. 44.42 (West 2006)..................................... 17

Tex. Code Crim. Proc. Ann. art. 64.05 (West 2006)..................................... 17

Tex. Gov’t Code Ann. § 22.221 (West Supp. 2014) ...................................... 27

v
Rules

Tex. R. App. P. 2 ....................................................................................... 18

Tex. R. App. P. 25.2 ............................................................................. 12, 17

Tex. R. App. P. 52.1−52.3 .......................................................................... 29

Tex. R. App. P. 72.1 .................................................................................. 29

Constitutional Authority

Tex. Const. art. V....................................................................... 11, 23, 24, 27

Other Authority

Act of May 23, 2008, 80 th Leg., R.S., ch. 1308, § 5, 2007 Tex. Gen.
Laws 4395, 4397 ..................................................................................... 16

vi
TO THE HONORABLE COURT OF CRIMINAL APPEALS:

The State of Texas submits this brief in response to the brief of

Appellant, Bernard Winfield Shortt.

STATEMENT OF THE CASE

A grand jury indicted Appellant for the second-degree felony of burglary

of a habitation. (CR: 11). The trial court placed Appellant on deferred-

adjudication probation and later revoked his probation, adjudicated his guilt,

and sentenced him to ten years’ confinement in the Texas Department of

Criminal Justice. (CR: 25, 51). After being incarcerated for five months, the

trial court granted Appellant’s motion for shock probation and placed him on

five years’ probation. (CR: 60-61; RR5: 10).

The trial court certified Appellant’s right to appeal from the order

granting shock probation. (CR: 79). Appellant filed notice of appeal,

attempting to appeal the shock probation proceedings in the Fifth District

Court of Appeals at Dallas in Shortt v. State, No. 05-13-01639-CR. On direct

appeal, he complained that the trial court erred in ordering him to pay

restitution as a condition of community supervision. (CR: 72). After both

parties had already filed briefs on the merits, the Fifth Court of Appeals

questioned its jurisdiction over an order of shock probation and ordered the

parties to file letter briefs. After considering the letter briefs, the Fifth Court of

1
Appeals dismissed Appellant’s direct appeal for lack of jurisdiction. Shortt v.

State, No. 05-13-01639-CR, 2015 Tex. App. LEXIS 4808 (Tex. App.—Dallas

May 12, 2015, pet. granted) (mem. op., not designated for publication).

STATEMENT OF FACTS

In December 2006, Appellant broke into the victim’s house and stole

personal property and money. (RR3: 6, 8, 10). Appellant was arrested and

charged by indictment with burglary of a habitation. (CR: 11-12; RR2: 5).

In October 2007, Appellant signed a judicial confession and a plea

agreement and pled guilty to the offense. (CR: 17, 21-22, 25; RR2: 5-7; RR3:

4). The trial court held a restitution and sentencing hearing in December 2007.

(RR3: 4). The trial court heard testimony from the victim, who testified that

Appellant broke into his house and stole approximately $18,000 in cash from a

safe and $285 in change from a coffee container.1 (RR3: 6-7). The victim

estimated that he retrieved around $6,200 of the stolen money, and he

requested $12,285 in restitution. (RR3: 11).

At the conclusion of the restitution and sentencing hearing, and, in

accordance with the plea bargain agreement, the trial court found the evidence

1
The evidence was inconsistent as to how much money was taken from the safe. The
victim initially told police that $13,000 or $17,000 was taken from the safe, and $250 was
taken from the coffee container, then testified to these different amounts at the restitution
hearing. (RR3: 6, 9-10, 18-19).
2
substantiated a finding of guilt and placed Appellant on seven years’ deferred-

adjudication probation. (CR: 25; RR3: 34). Among other conditions of

community supervision, the trial court ordered Appellant to pay $9,085 in

restitution as a condition of community supervision. (CR: 27; RR3: 34-35).

The trial court specifically waived court costs and community supervision fees,

stating,

Let me make this perfectly clear. I expect this victim to be made
whole with the amount of restitution that I ordered. That’s the
only reason I waived the court cost[s], probation fees and all of
those issue[s]. But I expect this victim to be made whole. And you
need to take responsibility for that.

(RR3: 35).

Almost six years later in May 2013, the State filed an amended motion

to revoke community supervision or proceed with an adjudication of guilt.2

(CR: 44-45). Among other violations, the State alleged that Appellant violated

a condition of his community supervision by failing to pay restitution as

ordered and was delinquent in the amount of $6,178. (CR: 45; RR4: 5). At the

revocation hearing on May 31, 2013, Appellant entered an open plea of true to

the State’s allegations and admitted that he had violated the terms of his

community supervision. (CR: 49; RR4: 5-6). After hearing testimony from

2
The record reflects that the State also filed two earlier motions to revoke
community supervision or proceed with an adjudication of guilt, one on October 27, 2008,
and one on July 31, 2009. (CR: 35-38).
3
Appellant and two more witnesses, the trial court found that Appellant had

violated the conditions of his community supervision and sentenced him to ten

years’ confinement in the Texas Department of Criminal Justice with a

possibility of shock probation. (RR4: 6, 20-21, 24-26; CR: 51). The trial court

did not orally pronounce restitution. (RR4: 26). The section in the written

judgment adjudicating guilt referring to restitution reads, “Restitution: $N/A.”

(CR: 51).

Appellant was incarcerated until October 28, 2013, when he returned to

the trial court for a shock probation hearing. (RR4: 26; RR5: 4-5). The same

trial judge who presided over the restitution hearing in December 2007 and the

revocation hearing in May 2013 also presided over the shock probation

hearing. (RR3-5). When the trial judge asked Appellant if he had restitution in

the case, Appellant stated that he did, but trial counsel objected that, under

Taylor v. State, because the trial court did not pronounce restitution during

sentencing at the revocation hearing, the trial court could not include it in the

conditions of Appellant’s shock probation.3 (RR5: 8-11). The trial court

queried, “My reading of this case was that the issue in question was not

3
The record does not contain a citation to the case cited by trial counsel, but the
applicable citation appears to be Taylor v. State, 131 S.W.3d 497, 500 (Tex. Crim. App.
2004) (holding that, when the State files a motion to adjudicate and the trial court
adjudicates guilt, the trial court sets aside the underlying deferred adjudication order and
assesses punishment, and any fine must be orally pronounced at that time).

4
pronounced when the defendant was given probation; is that correct?” (RR5:

9).

The trial court then granted Appellant’s request for shock probation,

suspended his ten-year sentence, placed him on five years’ community

supervision, and, over trial counsel’s objection, ordered Appellant to pay

restitution. (CR: 63; RR5: 10). Condition (q) of Appellant’s conditions of

community supervision orders him as follows:

Make restitution in the amount of $6,178 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[.]4

(CR: 63). In its opinion dismissing Appellant’s direct appeal for lack of

jurisdiction, the Fifth Court of Appeals cited a number of Texas cases from

intermediate courts of appeals supporting its determination that no statutory

authority confers jurisdiction upon an appellate court to entertain a direct

appeal from an order granting shock probation. Shortt, 2015 Tex. App. LEXIS

4808, at *6.

4
$6,178 was the outstanding balance of the $9,085 restitution Appellant was ordered
to pay in the December 2007 deferred-adjudication order.
5
 SUMMARY OF ARGUMENT

Issue One: The Fifth Court of Appeals properly applied Texas case law

in determining that it did not have jurisdiction to entertain Appellant’s direct

appeal in which he alleged the trial court’s imposition of a condition of shock

probation requiring him to pay restitution unconstitutionally enlarged his

punishment. Regardless of whether a shock probation proceeding can be

labeled as a “criminal action,” or whether an appellant’s complaint concerns

the constitutionality of a condition of shock probation and not the granting or

denial of shock probation, no statute provides for appeal from a shock

probation order or a condition of shock probation, and years of intermediate

courts of appeals case law indicates that a defendant has no right to appeal in

such cases. Appellant’s attempt to carve out a right of direct appeal through

statutory authority and case law fails.

Issue Two: The ultimate question is, “What is Appellant’s remedy?”

The answer is not, as Appellant requests, for this Court to treat his brief as an

application for writ of habeas corpus or writ of mandamus. Other than the

extraordinary relief he requests, Appellant has three more appropriate avenues

to seek a remedy: (1) through a motion to modify the conditions of his

supervision under Code of Criminal Procedure article 42.12, section 11(a); (2)

through an application for writ of habeas corpus in the trial court where

6
jurisdiction lies under Code of Criminal Procedure article 11.072; or (3)

through a properly-filed writ of mandamus in the Fifth Court of Appeals,

which is the court where mandamus jurisdiction lies. Mandamus in this Court

is inappropriate because Appellant has three other avenues of attack, but has

taken none of them. Appellant should not be allowed to circumvent the

statutorily-available avenues for obtaining a remedy by merely asking this

Honorable Court to overturn the judgment dismissing his direct appeal for lack

of jurisdiction.

ARGUMENT

RESPONSE TO APPELLANT’S ISSUE ONE

The Fifth Court of Appeals correctly applied Texas case law and
dismissed Appellant’s direct appeal from the order of shock
probation for lack of jurisdiction.

In his first issue, Appellant contends that none of the cases cited by the

Fifth Court of Appeals support its determination that it had no jurisdiction to

entertain his direct appeal. (Appellant’s Brief, p. 38). He advances two main

arguments: 1) his issue on direct appeal challenges the constitutionality of one

of the conditions of his shock probation, not the actual order granting shock

probation, and none of the cases relied upon by the Fifth Court were applicable

because none had an underlying issue that challenged the constitutionality of a

condition of shock probation; and 2) regardless of established case law, a shock

7
probation proceeding is a “criminal action,” and although no statute directly

authorizes appeal from a shock probation proceeding, a network of statutory

authority and case law indirectly authorize direct appeal. (Appellant’s Brief,

pp. 21, 30). Appellant’s arguments have no merit.

1. The Fifth Court of Appeals correctly applied Texas case law in determining it
did not have jurisdiction to entertain a direct appeal from the trial court’s
order granting shock probation.
Appellant’s complaint is about the constitutionality of condition (q) of

the conditions of community supervision attached to the trial court’s October

28, 2013 order in which it granted him shock probation. (CR: 60, 63). Indeed,

while none of the cases cited by the Fifth Court of Appeals address the exact

issue as Appellant’s—whether the court had jurisdiction to review a complaint

on direct appeal about the imposition of allegedly unconstitutional restitution

in a shock probation order—one in particular, Perez v. State, had a similar

underlying complaint. See Perez, 938 S.W.2d 761, 762 (Tex. App.—Austin

1997, pet. ref’d).

Appellant states the underlying issue in Perez was a complaint about a

“condition of shock probation that required Perez to report to law enforcement

to complete paperwork for sex offender registration within seven days.”

(Appellant’s Brief, p. 38). More correctly, Perez’s issue on direct appeal was a

8
complaint about the constitutionality of one of his conditions of shock

probation.

Specifically, Perez complained that a condition of shock probation

requiring him to register as a sex offender was unconstitutional because it

retroactively applied the 1995 amendments to the sex offender registration act

when he pled guilty before the effective date of the amendments. Id. at 762.

The court in Perez, like the Fifth Court of Appeals in this case, relied on this

Court’s opinions in Basaldua v. State, 558 S.W.2d 2 (Tex. Crim. App. 1977)

(holding no constitutional or statutory authority permits a direct appeal from

an order modifying or refusing to modify probationary conditions), and

Houlihan v. State, 579 S.W.2d 213 (Tex. Crim. App. 1979) (holding no

appellate jurisdiction over Houlihan’s direct appeal from an order overruling a

motion to place him on shock probation because neither article 42.12 nor any

other statute authorizes such an appeal), and likewise determined it did not

have jurisdiction to consider the appellant’s shock probation condition issue.

Id. at 762-63; see also Pippin v. State, 271 S.W.3d 861 (Tex. App.—Amarillo

2008, no pet.) (holding no constitutional or statutory authority confers

jurisdiction on an appellate court to entertain an appeal regarding a condition

of a trial court’s order granting shock probation).

9
 The State can find no case from this Court that directly holds an

appellate court has no jurisdiction to entertain a direct appeal from an order or

condition of shock probation. Nevertheless, the cases the Fifth Court of

Appeals cites indeed support its determination that it has no jurisdiction, and

Appellant points to no case directly supporting his contention that the Fifth

Court improperly concluded it had no jurisdiction. Accordingly, the Fifth

Court of Appeals correctly applied the applicable case law in making its

determination that it had no jurisdiction to entertain Appellant’s direct-appeal

complaint about the constitutionality of one of his conditions of shock

probation. See Perez, 938 S.W.2d at 762.

2. A shock probation hearing is not a “criminal action.”

There is no constitutional right to appellate review of criminal

convictions. Phynes v. State, 828 S.W.2d 1, 2 (Tex. Crim. App. 1992). The right

to appeal is conferred by the Legislature, and generally, a party may appeal

only those cases for which the Legislature has authorized appeal. Marin v.

State, 851 S.W.2d 275, 278 (Tex. Crim. App. 1993), overruled on other grounds by

Cain v. State, 947 S.W.2d 262, 264 (Tex. Crim. App. 1997); Olowosuko v. State,

10
826 S.W.2d 940, 941 (Tex. Crim. App. 1992) (“It is axiomatic that a party may

appeal only that which the Legislature has authorized.”).5

An intermediate appellate court’s jurisdiction is derived from the

Constitution of the State of Texas, which provides that the courts of appeals

have appellate jurisdiction “under such restrictions and regulations as may be

prescribed by law.” Sanchez v. State, 340 S.W.3d 848, 849 (Tex. App.—San

Antonio 2011, no pet.); see Tex. Const. art. V, § 6(a). The standard for

determining whether an appellate court has jurisdiction to hear and determine

a case “is not whether the appeal is precluded by law, but whether the appeal is

authorized by law.” Blanton v. State, 369 S.W.3d 894, 902 (Tex. Crim. App.

2012) (quoting Abbott v. State, 271 S.W.3d 694, 696-97 (Tex. Crim. App. 2008)).

Article 42.12 of the Code of Criminal Procedure governs community

supervision. See Tex. Code Crim. Proc. Ann. art. 42.12 (West Supp. 2014). In

particular, article 42.12, section 6 governs shock probation. Id., § 6. Appellant

admits that article 42.12, section 6 does not grant him the right to appeal from

an order of shock probation or a condition of shock probation. (Appellant’s

5
Appellant urges this Court to overrule Olowosuko, a case in which the Court held
that, under former article 42.12, section 5(b), a defendant could not appeal a trial court’s
determination to proceed with an adjudication of guilt. (Appellant’s Brief, p. 22). He urges
that, since the Legislature amended the statute in 2007 to provide a defendant with a right of
appeal from the determination to proceed with an adjudication of guilt, this Court should
“overrule the sweeping holding” in that case. (Appellant’s Brief, p. 23). Although
superseded in part by statute, this language in Olowosuko is unaffected, and indeed still holds
true, and this Court should decline to sweepingly overrule this opinion.
11
Brief, p. 21). He does not point to any constitutional or statutory provision that

specifically grants him the right to appeal from his post-conviction shock

probation order, and the State is unaware of any such provision. Hence, he is

not entitled to a direct appeal. See Abbott, 271 S.W.3d at 696-97.

Appellant argues, however, that article 42.12, section 6 does not prohibit

direct appeal. He argues that, under Texas case law, a shock probation

proceeding is an appealable “criminal action” and attempts to carve out a right

of appeal relying on Code of Criminal Procedure article 44.02 and Texas Rule

of Appellate Procedure 25.2. (Appellant’s Brief, pp. 21, 25-26). His argument

fails.

Article 44.02 of the Texas Code of Criminal Procedure provides: “A

defendant in any criminal action has the right of appeal under the rules

hereinafter prescribed … .” Tex. Code Crim. Proc. Ann. art. 44.02 (West

2006). Texas Rule of Appellate Procedure 25.2 states that a defendant “has the

right of appeal under Code of Criminal Procedure article 44.02 and these

rules” in every case in which a trial court “enters a judgment of guilt or other

appealable order.” Tex. R. App. P. 25.2(a)(2). Thus, where no statute

authorizes appeal, the right of appeal has generally been “restricted to persons

convicted of offenses and those denied release under the writ of habeas

corpus.” Sanchez, 340 S.W.3d at 849 (quoting Celani v. State, 940 S.W.2d 327,

12
329 (Tex. App.—San Antonio 1997, pet. ref’d); see Abbott, 271 S.W.3d at 697

n.8 (noting this Court’s prior recognition of “the long-established rule that a

defendant’s general right to appeal under Article 44.02 ‘has always been

limited to appeal’ from a ‘final judgment.’”).

Appellant argues that a shock probation hearing is a “criminal action” as

contemplated by article 44.02. See Tex. Code Crim. Proc. Ann. art. 44.02.

Appellant relies on Bautsch v. Galveston, decided in 1889, which defines a

“criminal action” as a proceeding “prosecuted in the name of the State of

Texas against the person accused, and is conducted by some officer or person

acting under the authority of the State, in accordance with its laws.” Bautsch,

27 Tex. Ct. App. 342, 346, 11 S.W. 414, 415 (1889).

Appellant acknowledges that, in Duran v. State, Judge Baird in his

concurring opinion defined a “criminal action” as a “proceeding by which [a]

person charged with a crime is brought to trial and either found guilty or guilty and

sentenced.” Duran, 844 S.W.2d 745, 746, 747 (Tex. Crim. App. 1992) (Baird, J.,

concurring) (looking to Black’s Law Dictionary to define a “criminal action” in a

case where the appellant was charged with two crimes, tried in a single trial,

and sentences were stacked) (emphasis added). Appellant states that, “in a

judgment of shock probation, a defendant is originally sentenced and sent to

prison … .” (Appellant’s Brief, p. 28). Appellant appears to be attempting to

13
characterize an order of shock probation as an appealable “judgment” under

the definition of a criminal action by labeling a shock probation order, an order

handed down by the trial court within 180 days after sentencing, as a

“judgment of shock probation.” See Tex. Code Crim. Proc. Ann. art. 42.12 §

6(a). (Appellant’s Brief, p. 28).

On the contrary, a shock probation order is not an original sentence or

final judgment that is part of a criminal action. Unlike “regular probation,”

which suspends the imposition of a sentence, “shock probation” suspends the

execution of a sentence that the defendant has already begun to serve. King v.

State, 942 S.W.2d 667, 669 (Tex. App.—Eastland 1997, pet. ref’d) (citing Wiltz

v. State, 863 S.W.2d 463, 465 (Tex. Crim. App. 1993), and Tamez v. State, 620

S.W.2d 586, 589-90 (Tex. Crim. App. 1981)).

The judgment in this case was final on May 31, 2013, when the trial

court adjudicated Appellant’s guilt and sentenced him. (CR: 51). The October

28, 2013 order granting shock probation was not a new judgment, but instead

was the trial court’s suspension of the execution of the sentence it imposed in

the May 31 judgment. Therefore, a shock probation proceeding is not a

“criminal action” under Judge Baird’s definition of “criminal action” in Duran.

See Duran, 844 S.W.2d at 747. A shock probation hearing is a post-conviction

proceeding that occurs after a defendant is found guilty and sentenced. The

14
merits of the defendant’s case are not being weighed, guilt has already been

determined, punishment has been set, and the criminal action is over. He has

already been “brought to justice.” See Bautsch, 11 S.W. at 415; Duran, 844

S.W.2d at 747.

Appellant also compares a hearing on a motion for shock probation to a

new trial or a new trial on punishment to attempt to classify it is a “criminal

action.” (Appellant’s Brief, p. 26). Those proceedings, however, are

distinguishable because they give a defendant a second chance at phases of the

proceeding by which a person charged with a crime is “brought to trial and

either found guilty or guilty and sentenced.” See Duran, 844 S.W.2d at 746,

747. Unlike a new trial, where a finding or verdict of guilt has been set aside

and the defendant receives a new trial, or a new punishment hearing, where an

assessment of punishment has been set aside and punishment is reassessed, a

hearing on a motion for shock probation is not a new trial on guilt or

punishment. A shock probation hearing is not a new part of the criminal action

where a defendant is “brought to trial and either found guilty or guilty and

sentenced”—it merely suspends the execution of the sentence already imposed

and which the defendant has already begun serving. See Tex. Code Crim. Proc.

Ann. art. 42.12; Wiltz, 863 S.W.2d at 465.

15
 3. Even if a shock probation hearing is a “criminal action,” direct appeal from
such a proceeding is not authorized by law.

Even assuming that a shock probation proceeding is a “criminal action,”

the answer to the question of, “Is an appeal from an order of shock probation

authorized by law?” is a resounding “no.” See Blanton, 369 S.W.3d at 894. The

Legislature has not created a law authorizing an appeal from a shock probation

proceeding, nor has the case law from this Court or this State’s intermediate

courts of appeals authorized such an appeal. Cf. Blanton, 369 S.W.3d at 903-04

(overruling State’s argument that a nunc pro tunc judgment is not an

appealable order where no statute provides for appeal because legislative

acceptance and decades of this Court’s case law prior to enactment of statutes

governing nunc pro tunc judgments consistently held that it is).

The Legislature could have provided defendants with the right to appeal

from shock probation proceedings, but it has not. The Legislature’s power to

grant a right of appeal is exemplified in its 2007 amendment of Article 42.12

where it granted defendants the right of appeal from proceedings to determine

adjudication of guilt. Prior to 2007, defendants had no right of appeal from

such proceedings. In 2007, the Legislature amended Article 42.12, § 5(b) to

provide for a right of appeal from the trial court’s decision to adjudicate. Act of

May 23, 2007, 80th Leg., R.S., ch. 1308, § 5, 2007 Tex. Gen. Laws 4395, 4397

(“After an adjudication of guilt, all proceedings, including assessment of
16
punishment, pronouncement of sentence, granting of community supervision,

and defendant’s appeal continue as if the adjudication of guilt had not been

deferred.”).

The Legislature has also provided the express right of appeal in other

criminal actions, for example the right to appeal from judgments in bail bond

proceedings and from a trial court’s denial of a motion for Chapter 64 DNA

testing. See Tex. Code Crim. Proc. Ann. arts. 44.42 (providing statutory

authority for defendants to appeal final judgments in bail bond forfeiture

proceedings), 64.05 (West 2006) (providing for appeals from denials of

motions for DNA testing). Unlike these express rights of appeal conferred by

statute, the Legislature has not enacted a statute providing for appeal from a

shock probation order or condition of shock probation; thus, Appellant has no

right of appeal. See Marin, 851 S.W.2d at 278; Olowosuko, 826 S.W.2d at 941.

Furthermore, Appellant’s reliance on Texas Rule of Appellate Procedure

25 as authorizing direct appeal in conjunction with article 44.02 is also

misplaced. That rule provides as follows:

[A] defendant in a criminal case has the right of appeal under
Code of Criminal Procedure article 44.02 and these rules. The trial
court shall enter a certification of the defendant’s right of appeal
each time it enters a judgment of guilt or other appealable order.

Tex. R. App. P. 25.2(a)(2). This rule does not grant a right of appeal in a shock

probation proceeding; instead, it merely provides trial courts with the
17
procedure to follow to certify a defendant’s right of appeal upon entering

judgments or appealable orders. The Texas Rules of Appellate Procedure do

not determine the jurisdiction of the courts of appeals; rather, they provide

procedures that litigants must follow to invoke the jurisdiction of the appellate

courts. Blanton, 369 S.W.3d at 902. Moreover, Texas Rule of Appellate

Procedure 2 expressly provides that the rules may not be construed to either

expand or limit jurisdiction. Tex. R. App. P. 2; Celani, 940 S.W.2d at 330. This

Court should not imbue procedural rule 25.2 with the power to confer

jurisdiction in this case. See Celani, 940 S.W.2d at 330.

Finally, and as discussed above, decades of case law from intermediate

Texas courts of appeals squarely holds that a defendant does not have a right

to appeal from an order granting or denying shock probation or an order

modifying or refusing to modify conditions of community supervision. See

Perez, 938 S.W.2d at 762; Basaldua, 558 S.W.2d at 5. This Court should decline

to overrule this line of established jurisprudence and to deliver a ruling that is

not supported by case law or statute. This Court should determine that,

regardless of whether a shock probation proceeding is a criminal action,

Appellant has no constitutional, statutory, or case law right to appeal from

such a proceeding and should overrule Appellant’s issue one.

18
 RESPONSE TO APPELLANT’S ISSUE TWO

This Court should decline to treat Appellant’s appeal as a writ
of habeas corpus because Code of Criminal Procedure article
11.072 provides the exclusive avenue for defendants seeking a
remedy when they have a complaint about the constitutionality
of a condition of community supervision. Appellant also fails
the test for entitlement to a writ of mandamus, and the facts
here do not provide an exceptional case calling on this Court to
treat Appellant’s appeal as a writ of habeas corpus or
mandamus.

If this Court determines the Fifth Court of Appeals correctly decided it

did not have jurisdiction to entertain his direct appeal, Appellant requests that

this Court treat his case as a writ of habeas corpus or mandamus and address

the merits of his direct-appeal issue through one of those remedies. Because

Appellant has multiple, more appropriate avenues to seek a remedy, none of

which he has pursued, this Court should decline his request.

1. Appellant is not entitled to habeas corpus or mandamus relief in this Court.

“Habeas corpus relief is an extraordinary remedy, and should be

reserved for cases in which no other remedy is available.” Blanton, 369 S.W.3d at

903. [Emphasis added.] Article 11.072 of the Code of Criminal Procedure

governs habeas corpus procedure where the applicant in a felony or

misdemeanor case “seeks relief from an order or a judgment of conviction

ordering community supervision.” Tex. Code Crim. Proc. Ann. art. 11.072, § 1

(West 2015). This Court has stated that the Legislature “intended Article

19
11.072 [enacted in 2003] to provide the exclusive means by which the district

courts may exercise their original habeas jurisdiction … in cases involving an

individual who is either serving a term of community supervision or who has

completed a term of community supervision.” Villanueva v. State, 252 S.W.3d

391, 396 (Tex. Crim. App. 2008).

A writ of mandamus commands a lower court to do some act. Tilton v.

Marshall, 925 S.W.2d 672, 676 n.4 (Tex. 1996). Mandamus is an extraordinary

remedy to be invoked only in extraordinary circumstances. Smith v. Sohmert,

962 S.W.2d 590, 593 (Tex. Crim. App. 1998). To be entitled to mandamus

relief in a criminal case, the relator must show two things: (1) that he has no

adequate remedy at law; and (2) that the act he seeks to compel is a purely

ministerial act as opposed to a discretionary one. In re Bonilla, 424 S.W.3d 528,

533 (Tex. Crim. App. 2014) (orig. proceeding).

Restitution is a victim’s statutory right. Tex. Code Crim. Proc. Ann. art.

42.037(a) (West Supp. 2014); Burt v. State, 445 S.W.3d 752, 756 (Tex. Crim.

App. 2014). Under article 42.037, in addition to a fine, the trial court “may

order the defendant to make restitution to any victim of the offense … .” Tex.

Code Crim. Proc. Ann. art. 42.037(a). Texas law favors restitution so greatly

that article 42.037 requires a trial judge to justify his decision not to order

restitution to a crime victim. Burt, 445 S.W.3d at 756. The State acknowledges

20
that restitution is a form of punishment and that, in most cases, the trial court

must pronounce restitution at adjudication and include it in the judgment for it

to be a valid condition of community supervision. See Weir v. State, 278 S.W.3d

364, 366 & n.6 (Tex. Crim. App. 2009); cf. Taylor, 131 S.W.3d at 500-02.

Appellant’s direct-appeal issue is one challenging the constitutionality of

condition (q). Article 11.072, the exclusive means for Appellant to attack

condition (q), sets out the proper procedure for Appellant to bring his

complaint that condition (q) is unconstitutional. See Tex. Code Crim. Proc.

Ann. art. 11.072, § 3(c) (“An applicant may challenge a condition of

community supervision under this article only on constitutional grounds.”);

Villanueva, 252 S.W.3d at 397 (discussing the Legislature’s clear intent for

article 11.072 to be the exclusive means for district courts to exercise original

jurisdiction over cases involving a defendant who is serving, or who has

served, a term of community supervision).

When an applicant on community supervision seeks to challenge a

condition of his community supervision, not the underlying conviction, he first

must attempt to gain relief by filing a motion to amend his conditions of

community supervision. See Tex. Code Crim. Proc. Ann. art. 11.072, § 3(b); see

also Tex. Code Crim. Proc. Ann. art. 42.12, § 11(a) (“The judge of the court

having jurisdiction of the case shall determine the conditions of community

21
supervision and may, at any time during the period of community supervision,

alter or modify the conditions.”). Thus, Appellant’s first line of attack is to file

a motion to modify the conditions of his probation, requesting to delete

condition (q). See Tex. Code Crim. Proc. Ann. art. 11.072, § 3(b).

If Appellant is unsuccessful in attacking condition (q) through a motion

to amend or modify, he may raise his constitutional issue in an application for

a writ of habeas corpus filed in the 194th Judicial District Court of Dallas

County, Texas, the trial court that placed him on shock probation, which is the

proper procedural vehicle for a complaint about the constitutionality of a

condition of shock probation. See Tex. Code Crim. Proc. Ann. art. 11.072, §

2(a)−(b)(2) (allowing an applicant to challenge the legal validity of the

conditions of community supervision in the court in which community

supervision was imposed); see also Ex parte Roberts, 409 S.W.3d 759, 761 (Tex.

App.—San Antonio 2013, no pet.) (in reviewing the trial court’s denial of the

applicant’s writ of habeas corpus, the Court noted how it had initially

dismissed her direct appeal of the trial court’s order modifying her conditions

of community supervision to include $70,000 restitution and had instructed her

that a writ of habeas corpus was the correct procedural vehicle to raise that

issue).

22
 The State acknowledges that this Court has, in rare instances, treated an

appellant’s appeal as a writ of mandamus or habeas corpus. See Houlihan, 579

S.W.2d at 216-17; Basaldua, 558 S.W.2d at 5. When Basaldua was decided in

1977 and Houlihan in 1979, Article V, § 8 of the Texas Constitution provided

the only avenue through which a person serving a term of community

supervision could pursue habeas relief.6 See Villanueva, 252 S.W.3d at 396. In

2003, however, the Legislature enacted article 11.072, thereby establishing a

means for defendants to attack post-conviction conditions of community

supervision, and providing defendants with complaints similar to that of

Appellant a remedy that they could seek. See Villanueva, 252 S.W.3d at 395.

The Court of Criminal Appeals has original jurisdiction to issue a writ of

habeas corpus. This Court exercises such jurisdiction, however, only in

exceptional cases and generally only after unsuccessful efforts in the trial court.

6
Article V, section 8 sets forth the jurisdiction of district courts as follows:

District Court jurisdiction consists of exclusive, appellate, and original
jurisdiction of all actions, proceedings, and remedies, except in cases where
exclusive, appellate, or original jurisdiction may be conferred by this
Constitution or other law on some other court, tribunal, or administrative
body. District Court judges shall have the power to issue writs necessary to
enforce their jurisdiction.

The District Court shall have appellate jurisdiction and general supervisory
control over the County Commissioners Court, with such exceptions and
under such regulations as may be prescribed by law.

Tex. Const. Art. V, § 8.
23
See Tex. Const. art. V, § 5(c); Tex. Code Crim. Proc. Ann. art. 11.05 (West

2015); Ex parte Fitzpatrick, 320 S.W.2d 683, 683 (1959) (this Court exercises its

original habeas jurisdiction only where the relator has been unsuccessful in

obtaining relief from the trial court having similar jurisdiction); see also Ex parte

Rodriguez, 169 Tex. Crim. 367, 334 S.W.2d 294 (1960).

The facts of Appellant’s case do not present an “exceptional case” for

this Court to exercise its original jurisdiction. See, e.g., Roberts, 409 S.W.3d at

761. A statute is in place—article 11.072—with a distinct procedure Appellant

must follow for seeking habeas relief in the trial court while he is on

community supervision; Appellant has had no unsuccessful efforts seeking a

remedy in the trial court, as he has made NO efforts to seek such a remedy. See

Tex. Code Crim. Proc. Ann. art. 11.072(a), (b); see also Bailey v. State, 160

S.W.3d 11, 21 (Tex. Crim. App. 2004) (Baird, J., dissenting) (noting that

Bailey “passed up several opportunities” for a remedy in the law, and, “Rather

than giving every probationer in Texas a ‘Get Out of Probation Free’ card just

to give this probationer an appeal in what the Court recognizes is a unique

case, I would affirm the court of appeals and give the appellant the opportunity

for habeas corpus.”). Hence, a writ of habeas corpus in the trial court is an

available, more appropriate avenue for Appellant’s attack, and he does not

require this Court’s exceptional interference.

24
 Further, the trial court is the court with jurisdiction over a writ of habeas

corpus and is the court suited for the required fact finding. At a habeas

proceeding, the applicant must prove facts supporting his requested relief by a

preponderance of the evidence. See Ex parte Thomas, 906 S.W.2d 22, 24 (Tex.

Crim. App. 1995). The habeas court makes written findings and conclusions in

support of its order, and an appellate court reviews the court’s order for an

abuse of discretion. Ex parte Garcia, 353 S.W.3d 785, 787-88 (Tex. Crim. App.

2011). The habeas court is the sole finder of fact in an Article 11.072

proceeding, and an appellate court affords almost total deference to its

determinations of historical fact that are supported by the record. Id. The trial

court, not the appellate court, has jurisdiction to be the finder of fact in an

11.072 habeas proceeding.

The trial court should be afforded the opportunity to examine the merits

of Appellant’s constitutional challenge to condition (q). Although the trial

judge was adamant at the December 2007 restitution and sentencing hearing

about Appellant paying restitution to the victim, at the May 2013 adjudication

hearing, he inexplicably did not state on the record his reason for not making a

restitution finding. Indeed, at the October 2013 shock probation hearing, the

judge seemed confused by the law regarding pronouncing and entering

restitution in the judgment at adjudication proceedings. (RR5: 8-9).

25
 The trial court should have the opportunity to develop facts supporting

its omission in orally pronouncing restitution or including it in the judgment

and to determine the constitutionality of the restitution condition of the shock

probation order. The trial court, not the appellate court, is in a position to

determine those facts. Requiring Appellant to file a writ of habeas corpus with

the trial court would not be a “useless thing,” and this Court should decline to

treat Appellant’s appeal as an application for a writ of habeas corpus. Cf. Ex

parte Huffman, 9 S.W.3d 302, 304 (Tex. App.—San Antonio 1999, no pet.)

(declining to treat Huffman’s appeal from a modification of her conditions of

community supervision as a writ of habeas corpus, agreeing with the State

that, although the trial court had confronted Huffman numerous times about

repayment of restitution in her misdemeanor case, requiring Huffman to

properly apply for relief through a writ of habeas of corpus in the district court

would not be “a useless act,” and the court of appeals had no jurisdiction to

entertain the appeal because the trial court did not have an opportunity to

consider the issue in a proper habeas proceeding).7

Moreover, this Court should decline to treat Appellant’s appeal as a writ

of mandamus because his case is not appropriate for mandamus. He urges that

7
The State notes that this 1999 case was decided before article 11.072, which as
discussed above provides defendants with an avenue for attacking conditions of community
supervision, was enacted. See Tex. Code Crim. Proc. Ann. art. 11.072.
26
“the order imposing restitution in the shock probation order violates the

Double Jeopardy Clause and is so void, so mandamus lies.” (Appellant’s Brief,

p. 43). Because Appellant has several avenues of attacking the constitutionality

of condition (q), as discussed above, he has an adequate remedy at law and

fails to meet the two-prong test for mandamus. See Bonilla, 424 S.W.3d at 523.

Until he has filed a motion to modify his conditions of community

supervision, filed an application for a writ of habeas corpus, and been denied

both those remedies, Appellant fails to demonstrate the first prong of the test

for mandamus because he has not shown he has no adequate remedy at law.

In addition, original jurisdiction over any petition for writ of mandamus

Appellant may file on this issue lies with the Fifth Court of Appeals at Dallas.

See Tex. Const. Art. V, § 6; Tex. Gov’t Code Ann. § 22.221(b) (West Supp.

2014). Under section 22.221, a court of appeals has the authority to issue a writ

of mandamus against a judge of a district or county court in the court of

appeals’ district and all writs necessary to enforce its jurisdiction. Tex. Gov’t

Code Ann. § 22.221(b). . The Fifth Court of Appeals, not this Court, would

have jurisdiction over any mandamus in this case. See id.

2. Any “appellate orbit” Appellant perceives is highly speculative, self-created,
and avoidable.

Finally, Appellant’s argument that declining his request to treat his

appeal as a writ of habeas corpus or mandamus will “launch” him into
27
“appellate orbit,” as alluded to by the dissent in Ex parte Green, is unfounded.

See Ex parte Green, 457 S.W.3d 90, 90 (Tex. Crim. App. 2015) (Yeary, J.,

dissenting). (Appellant’s Brief, p. 47). Appellant’s statement that any potential

writ of habeas corpus he may file “will likely be denied by the trial court” is

mere speculation as to what may occur.8 Moreover, unlike the pro se

applicant’s circumstances in Green, any perceived or potential “appellate orbit”

here has been created at Appellant’s own hand. Appellant is represented by

counsel who presumably has an understanding of the Code of Criminal

Procedure, the rules of appellate procedure, and Texas case law. Instead of first

filing a motion to amend his conditions of probation under article 42.12,

section 11, as required by article 11.072 section, 3(b), the statute providing the

exclusive means of attacking an allegedly unconstitutional condition of

probation and which could have produced a speedy remedy, counsel instead

filed a direct appeal, which, as discussed above, years of case law indicates the

court of appeals lacked jurisdiction to entertain. See Perez, 938 S.W.2d at 762;

Villanueva, 252 S.W.2d at 397.

Further, unlike the uncertainty of the future of the pro se applicant in

Green, here Appellant has counsel who admits he may seek a remedy through

8
Appellant does not mention first filing a motion to modify his conditions of
community supervision, which should be his first avenue of attacking condition (q). See Tex.
Code Crim. Proc. Ann. art. 11.072, § 3(b).
28
article 11.072. (Appellant’s Brief, p. 47). Appellant should be treated no

differently than other similarly-situated appellants. Instead of following the

proper avenue to obtain an efficient remedy, Appellant himself has created any

perceived “appellate orbit,” and should not be allowed to shirk the procedural

rules, come to this Court, and say, “Here is my brief. I do not want to follow

the rules as everyone else is required to do. Give me some relief.” The Texas

Code of Criminal Procedure and the Texas Rules of Appellate Procedure set

forth detailed specific requirements for persons filing applications for writs of

habeas corpus and writs of mandamus, none of which are met in the present

case. See Tex. R. App. P. 52.1−52.3, 72.1. Appellant has multiple remedies at

law and, therefore, does not justify this Court providing him with

extraordinary relief. Accordingly, this Court should decline to treat Appellant’s

appeal as a writ of habeas corpus or a writ of mandamus and should overrule

his issue two.

29
 PRAYER

The State prays that this Honorable Court will affirm the judgment of

the Fifth Court of Appeals.

Respectfully submitted,

/s/ Marisa Elmore
Susan Hawk Marisa Elmore
Criminal District Attorney Assistant District Attorney
Dallas County, Texas State Bar No. 24037304
Frank Crowley Courts Building
133 N. Riverfront Blvd., LB-19
Dallas, Texas 75207-4399
(214) 653-3625
(214) 653-3643 fax

CERTIFICATE OF WORD-COUNT COMPLIANCE

I hereby certify that the foregoing brief, including all contents except for
the sections of the brief permitted to be excluded by Rule 9.4(i)(1) of the Texas
Rules of Appellate Procedure, is 6,199 words in length according to Microsoft
Word 2010, which was used to prepare the brief, and complies with the word-
count limit in the Texas Rules of Appellate Procedure. See Tex. R. App. P.
9.4(i).

/s/ Marisa Elmore
Marisa Elmore

CERTIFICATE OF SERVICE

I hereby certify that a true copy of the foregoing brief was served on
Michael Mowla, counsel for Appellant, by electronic communication through
eFileTexas.gov to Michael@mowlalaw.com, on December 10, 2015.

/s/ Marisa Elmore
Marisa Elmore

30