KIMBERLY SHERVON GARRETT v. THE STATE OF TEXAS

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Court of Appeals of Texas, Dallas.

KIMBERLY SHERVON GARRETT, Appellant v. THE STATE OF TEXAS, Appellee

No. 05-08-01288-CR

Decided: March 28, 2011

Before Justices O'Neill, Richter, and Lang-Miers

OPINION

Opinion By Justice Lang-Miers

Appellant Kimberly Shervon Garrett appeals following the trial court's adjudication of her guilt for possession of less than one gram of cocaine.   In a single issue appellant essentially argues that the trial court's judgment is void because she was not lawfully on community supervision at the time the trial court adjudicated her guilt.   We affirm.

Background

Appellant waived a jury and pleaded guilty to possession of less than one gram of cocaine, a state jail felony.   See Tex. Health & Safety Code Ann. §§ 481.102(3)(D), 481.115(a)-(b) (West 2010).   In July 2002, pursuant to a plea agreement, the trial court deferred adjudicating guilt, placed appellant on five years' community supervision, and assessed a $500 fine.   In April 2007, the trial court signed a modification order extending appellant's community supervision until July 2009.   In 2008, the State filed a motion to revoke appellant's probation and proceed with an adjudication of guilt, alleging that appellant violated conditions of her community supervision.   After appellant signed a judicial confession and pleaded true to violating conditions of her community supervision, the trial court granted the State's motion, adjudicated appellant guilty, and assessed punishment at 18 months in the state jail.

Analysis

Appellant argues that the trial court did not have statutory authority to extend her community supervision in 2007, and as a result, the trial court's subsequent decision in 2008 to revoke appellant's community supervision “was invalid” and appellant's conviction “must be set aside.”   To support her argument, appellant relies on Texas Code of Criminal Procedure article 42.12, section 22(c), which allows judges to extend community supervision on a showing of good cause as often as the judge determines necessary, but limits community supervision in first, second, and third degree felony cases to ten years.   See Tex.Code Crim. Proc. Ann. art. 42.12 § 22(c) (West Supp.2010).   Appellant argues that because article 42.12 section 22(c) does not set a limit for community supervision in a state jail felony case, the statute is ambiguous and “there is no statutory authority for a two-year extension.”   We disagree.

In state jail felony cases the trial court may defer adjudication and place the defendant on community supervision for up to ten years.   See Tex.Code Crim. Proc. Ann. art. 42.12 § 5(a).   In this case, the trial court initially placed appellant on deferred adjudication community supervision for five years, and later extended her community supervision for two more years.   We conclude that the trial court had statutory authority to extend appellant's community supervision for two more years.   See Tex.Code Crim. Proc. Ann. art. 42.12 §§ 5(a), 22(c);  cf.  Davidson v. State, No. 05-96-00947-CR, 1997 WL 392731, at *2 (Tex.App.-Dallas July 14, 1997, no pet.) (not designated for publication) (trial court did not err in placing defendant on deferred adjudication community supervision for six years because it was within the ten-year limit under article 42.12, section 5(a)).   As a result, appellant was lawfully on community supervision at the time the trial court adjudicated her guilt.   We resolve appellant's sole issue against her.

Conclusion

We resolve appellant's sole issue against her and affirm the trial court's judgment.

ELIZABETH LANG-MIERS JUSTICE

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