STATE v. TEDFORD (2025)

Petition for Discretionary Review Refused.

DISSENTING OPINION

This case is a mess. Appellee was given four stacked sentences totaling 14 years. After the trial court's plenary power expired but before the time for granting shock probation expired, the trial court granted shock probation but ran all of the suspended sentences concurrently. Then the State appealed, and the court of appeals held that the sentences had to be run consecutively and that it was premature to grant shock probation on sentences two through four, because they had not yet begun to run. Under the combined effect of the trial-court and court-of-appeals decisions, Appellee has been placed on probation for 10 years (for the first sentence), followed by three consecutive sentences of incarceration totaling 9 years. This sentencing posture could violate one or all of three different statutes: (1) that prohibits stacking a sentence on top of probation, (2) that prohibits granting probation if the term of imprisonment exceeds 10 years, and (3) that prohibits granting a series of stacked probations that total more than 10 years.¹ Moreover, under the current posture of Appellee's cases, he could be sent back to prison even if he successfully completes his probation, or he could possibly end up serving 30 years on probation. The posture of the current case is almost certainly wrong, and, regardless of what happens, one of the parties will likely protest eventually. This case is a ticking time bomb that will go off if we do not step in and fix this. And there are interesting issues regarding the interaction between shock probation and stacked sentences.

I. FACTS

On October 13, 2023, Appellee entered an open plea of guilty, and the trial court deferred sentencing for a later date. On December 7, 2023, the trial court sentenced him to a series of four consecutive sentences—5 years, 5 years, 2 years, and 2 years—for a consecutive total of 14 years.² The trial court suggested at the time of sentencing that it might give Appellee shock probation, but when it later pronounced judgment, it specifically said how the consecutive sentences would run.

On May 30, 2024, after the trial court's plenary power had expired (for granting a new trial) but before the trial court's power to impose shock probation had expired, the trial court said it would grant shock probation for ten years.

On June 3, 2024, the trial court held a hearing on the State's motion to vacate part of the shock-probation judgment. The State argued that the trial court was without power—yet—to grant shock probation as to the second, third, and fourth sentences in the consecutive series because those sentences had not yet begun to run. Defense counsel agreed that imposing shock probation on sentences that had not yet begun to run was improper. But the defense contended that the trial judge had modified its judgment on the day of sentencing and that the written judgment did not reflect what the trial court had intended. The defense also suggested that imposing shock probation for only the first sentence could violate Art. 42.08(c) and started to say he wouldn't oppose the granting of a new trial but then said never mind.

The trial court agreed with the defense that it had “reformed” the judgment on the day of sentencing. The trial court said, “My intent in saying that I would consider shock probation was I believed all of these were subject to shock probation. I did not know the consequence of stacking some sentences over others would prevent me from granting shock probation across the board.” The trial court acknowledged that it wasn't sure how to make this work. The trial court also acknowledged, “I think that's a substantive change that I can't do in a nunc pro tunc.” That same day (June 3), the trial court entered orders that ordered 10 years’ probation for the 5-year sentences and 5 years’ probation for the 2-year sentences, all apparently running concurrently. The State appealed.

The court of appeals held that the trial court had not reformed the judgment on the day of original sentencing, so there were four consecutive terms of sentences.³ And the court of appeals held that it was premature to give shock probation to consecutive sentences that had not started to run yet.⁴ So the court of appeals overturned the shock probation on the second, third, and fourth consecutive sentences, but left the shock probation in place for the first sentence.⁵

II. ANALYSIS

The court of appeals's holding in this case means that Appellee is on shock probation for the first sentence and has stacked sentences of incarceration on top of that. That holding suggests that the trial court could keep giving him shock probation on each sentence in the series when it starts, but it wouldn't have to, which means Appellee could eventually be sent back to prison even if he did nothing to be revoked. Code of Criminal Procedure article 42.08(c) says:

If a defendant has been convicted in two or more cases and the court suspends the imposition of the sentence in one of the cases, the court may not order a sentence of confinement to commence on the completion of a suspended sentence.6

By creating a situation in which the first sentence in the stacked series is suspended, but the later sentences are not suspended, the court of appeals appears to have effectively ordered a sentence of incarceration to follow a suspended sentence. Art. 42.08(c) appears to be designed to stop that sort of possibility.

The shock probation statute provides that the defendant can get shock probation only if “the defendant is otherwise eligible for community supervision under this chapter [42A].”⁷ Art. 42.08(c) is not in Chapter 42A, so that might mean that its prohibition against stacking a sentence on a probation doesn't apply. But at least arguably, Art. 42.08(c) does apply, because its prohibition would make a defendant ineligible for community supervision under Chapter 42A.

Another issue in this case is that Appellee's stacked sentences exceed 10 years. The judge-ordered-probation statute in Chapter 42A says:

A defendant is not eligible for community supervision under this article if the defendant is sentenced to serve ․ a term of imprisonment that exceeds 10 years.8

Does that just apply to an individual sentence? Or is it the entire period of incarceration? Art. 42.08(a) says, among other things:

․ provided, however, that the cumulative total of suspended sentences in felony cases shall not exceed 10 years.9

As with Article 42.08(c), this provision in Article 42.08(a) is outside of Chapter 42A, but this provision might provide support for a conclusion that there is a hard rule of no probation if the combined sentences exceed 10 years, and if that is the rule, then that would seem to mean that Appellee was not eligible for shock probation because the sum of his sentences was 14 years. Even if the sum of his consecutive sentences did not make him ineligible for probation, if Art. 42.08(a) applies, it would at least mean that consecutive probations would have to be structured in such a way as to not exceed 10 years in total—which would require the trial court to assess probationary periods of less than the assessed sentences so as not to exceed 10 years. As it is, the probationary periods assessed by the trial court, if stacked, would equal 30 years (10 + 10 + 5 + 5).

Given these problems, I can think of several grounds for review that we could grant on our own motion:

1. Can a court grant shock probation for an entire series of consecutive sentences?

2. Can a court grant shock probation only as to the first sentence in a consecutive series?

3. Can a court grant shock probation if the sum of the sentences in a consecutive series exceeds 10 years?

4. If so, must it ensure that the period of probation cannot exceed 10 years?

There is also the issue of preservation. Depending on how the four questions are answered, the State might obtain more relief than it asked for at trial or on appeal. The State has taken issue only with imposing shock probation for sentences that have not started yet. The State has never suggested that shock probation could not be imposed at all. So, if the State had to preserve whether Appellee was entitled to shock probation at all, it didn't. But, the trial court's plenary power had expired at the time it was considering shock probation, so if it couldn't impose shock probation at all, then that would seem to be a jurisdictional defect,¹⁰ which this Court could raise on its own.¹¹

And if the trial court can impose shock probation for consecutive sentences, it still messed that up, because it turned those consecutive sentences into concurrent sentences in violation of its own pronouncement of judgment. The trial court even acknowledged that there was no basis for a nunc pro tunc order because it at best made a judicial error, not a clerical error.¹² If it turns out that the trial court can impose consecutive shock probations even though the subsequent consecutive sentences have not run yet, then Appellee, as the prevailing party, would not have had to present that issue on appeal.¹³

And if we leave the court of appeals's opinion in place, then bizarre consequences could occur. Appellee could conceivably serve 10 years of probation without incident and then be forced to serve his other consecutive sentences in prison—9 years of incarceration on top of a probation. But let's say the trial court is inclined to keep giving the defendant probation. Even if it wants to, could it decide it can't because the defendant has already reached his 10-year maximum? Or if it does place the defendant on shock probation again, could the State then appeal and end up forcing the defendant back to prison? Or if the trial court imposes probation and the State doesn't challenge it, then the trial court could conceivably order another 10 years on the second sentence and later order five years probation for each remaining sentence when it starts. So, Appellee could get 30 years probation in total.

If we decide that the trial court can do serial shock probations at once, and is not prohibited by the total sentences exceeding 10 years, then this case will have to be remanded for the trial court to do it correctly—to assess consecutive probations, and probably with a ceiling of 10 years on the total amount. If we decide that the trial court could not assess shock probation at all, then we would vacate the probation orders. At that point, Appellee could file an Article 11.07 habeas application and claim ineffective assistance of counsel for failing to point out the problem with what the trial court was doing at trial or for failing to file a motion for new trial. That would afford him a remedy that would enable the trial court to reset the sentences to give him shock probation.

And while it might be possible to eventually fix this case through habeas avenues, the current posture of Appellee's convictions would require pursuit on two tracks: (1) via Article 11.072 for the first set of sentences, and (2) via Article 11.07 for the second, third, and fourth sentences in the consecutive series. Article 11.072 “establishes the procedure for an application for a writ of habeas corpus in a felony or misdemeanor case in which the applicant seeks relief from an order or a judgment of conviction ordering community supervision.”¹⁴ The original judgment imposing consecutive sentences did not order community supervision.¹⁵ And under the court of appeals's reasoning, that original judgment remains intact as to the second, third, and fourth sentences in the consecutive series, with only the first set of sentences being modified by a shock-probation order. If we wait for this case to be sorted out on habeas, it could be a mess for years to come. We should grant review, decide the important issues, and fix this case now. Because the Court does not, I respectfully dissent.

FOOTNOTES

1.   See Tex. Code Crim. Proc. arts. 42.08(c), 42A.053(c)(1), 42.08(a), respectively.

2.   Several sentences run concurrently in the first five years of this series. The concurrent sentences have no affect on the issues before us.

3.   State v. Tedford, No. 02-24-00190-CR, 2025 WL 494646, *4-5 (Tex. App.—Fort Worth Feb. 13, 2025) (not designated for publication).

4.   Id. at *5-6.

5.   Id. at *6.

6.   Tex. Code Crim. Proc. art. 42.08(c).

7.   Id. art. 42A.202(b)(2).

8.   Id. art. 42A.053(c)(1).

9.   Id. art. 42.08(a).

10.   See In re Texas Dep't of Criminal Justice, 710 S.W.3d 731, 735-36 (Tex. Crim. App. 2025) (“A trial court has no ‘general’ jurisdiction after a conviction becomes final. Any jurisdiction a trial court obtains post-finality must be conferred by the Texas Constitution or by statute, and any provision bestowing post-finality jurisdiction defines the scope of that jurisdiction.”).

11.   See Skinner v. State, 484 S.W.3d 434, 437 (Tex. Crim. App. 2016) (“[J]urisdiction is a systemic requirement that appellate courts must review regardless of whether the issue is raised by the parties.”).

12.   See Williams v. State, 603 S.W.3d 439, 443 (Tex. Crim. App. 2020) (“A trial court may correct only clerical errors in a nunc pro tunc order or judgment precisely because it lost plenary power and, thus, jurisdiction to correct judicial errors.”).

13.   See Volosen v. State, 227 S.W.3d 77, 80 (Tex. Crim. App. 2007) (“An appellee's failure to make a particular argument is a factor that may be considered when this Court decides whether to exercise its discretion to grant review, but it does not bar this Court from granting review to address the issue if the Court, in its discretion, decides that review is warranted.”).

14.   Tex. Code Crim. Proc. art. 11.072, § 1.

15.   See id. art. 11.07, § 1 (establishing the procedures for seeking relief from “a felony judgment imposing a sentence other than death.”).