CAUSE NO CR THE COURT OF APPEALS FOR THE FIFTH JUDICIAL DISTRICT AT DALLAS, TEXAS KIMBERLY SHERVON GARRETT, APPELLANT,

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1 ORAL ARGUMENT REQUESTED CAUSE NO CR THE COURT OF APPEALS FOR THE FIFTH JUDICIAL DISTRICT AT DALLAS, TEXAS KIMBERLY SHERVON GARRETT, APPELLANT, V. THE STATE OF TEXAS, APPELLEE. CRIMINAL DISTRICT COURT NUMBER FOUR DALLAS COUNTY, TEXAS NO. F HK APPELLANT S BRIEF BRUCE ANTON STATE BAR OF TEXAS NO Cedar Springs Road, Suite 400 Dallas, Texas / / fax

2 TABLE OF CONTENTS TABLE OF CONTENTS ii IDENTITY OF PARTIES iii INDEX OF AUTHORITIES iv PROCEDURAL STATEMENT OF THE CASE (CHRONOLOGY) v STATEMENT OF FACTS SUMMARY OF ARGUMENT POINT OF ERROR NUMBER ONE APPELLANT S PROBATION WAS REVOKED AFTER IT HAD LAWFULLY EXPIRED, IN THAT THE TRIAL COURT LACKED AUTHORITY TO EXTEND THE PROBATIONARY PERIOD UNDER TEX. CODE CRIM. PROC., ART ( C). Relevant Facts Statutory Authority Rule of Lenity Statutory Ambiguity PRAYER CERTIFICATE OF SERVICE ii

3 IDENTITIES OF PARTIES APPELLANT APPELLANT S COUNSEL AT TRIAL APPELLANT S ATTORNEY ON APPEAL STATE S ATTORNEYS AT TRIAL STATE S ATTORNEY ON APPEAL JUDGE Kimberly Shervon Garrett Jennifer Balido Paul Blocker Office of the Public Defender of Dallas County 133 N. Riverfront Blvd., LB19 Dallas, Texas Bruce Anton 2301 Cedar Springs Road, Suite 400 Dallas, Texas Michael Lowe Jamie Young Assistant District Attorneys Office of the District Attorney of Dallas County Appellate Section 133 N. Riverfront Blvd., LB19 Dallas, Texas not designated yet Hon. John Creuzot Criminal District Court Number Four 133 N. Riverfront Blvd. Dallas, Texas iii

4 INDEX OF AUTHORITIES CASES PAGE Bell v. United States, 349 U.S. 81(1955) Boykin v. State, 818 S.W.2d 782 (Tex.Crim.App.1991) Cuellar v. State, 70 S.W.3d 815 (Tex.Crim.App.2002) Ex parte Forward 258 S.W.3d 151 (Tex.Crim.App.,2008) Fielding v. State 266 S.W.3d 627(Tex.App.-El Paso,2008) Wiggins v. State 2009 WL (Tex.App.-Houston [1 Dist.],2009) STATUTES AND OTHER CITES Tex. Pen.Code 1.05(a) Tex. Code Crim. Proc art ( c) iv

5 PROCEDURAL STATEMENT OF THE CASE CHARGE PLEA JURY WAIVED PLEA BARGAIN JUDGMENT AND SENTENCE MOTION TO REVOKE PROBATION PLEA PLEA BARGAIN VERDICT VERDICT ON PUNISHMENT JUDGMENT AND SENTENCE NOTICE OF APPEAL Possession of Cocaine, less than one gram Enhanced by one prior conviction Offense date: September 4, 2001 Arrest date: September 4, 2001 Indictment Date: April 25, 2002 (CR.2-3) Guilty (CR.7-9) June 17, 2005 (CR.7-9) Five years deferred probation and a $1, fine (CR.8-9) July 25, 2002 (CR.13-15) Filed: September 23, 2008 (CR.24-25) True (CR.26-27) None (CR.26-27) True (RR3.16) Eighteen months state jail confinement (RR1.11) September 23, 2008 (CR.28-29) September 23, 2008 (CR.32) v

6 STATEMENT OF FACTS The Appellant, Kimberly Garrett (Garrett), was charged with possession of cocaine less than one gram alleged to have occurred on September 4, Pursuant to a plea agreement, Garrett entered a plea of guilty to the offense on June 17, In return, Garrett received a deferred probation for a period of five years. On September 23, 2008, the State filed allegations that Garrett had violated the supervision order by failing to report, failing to successfully complete her treatment program, and testing positive for drug use. A hearing was held on the motions on September 23, At the hearing, Garrett entered a plea of true to the allegations. On this evidence, the Court assessed an eighteen-month state jail sentence on the delivery charge. This appeal is taken therefrom. ARGUMENT SUMMARY OF ARGUMENT However, that revocation was invalid, as the court had no authority to extend a state jail felony probation period. The pertinent provision, Tex. Code Crim. Proc., art ( c), does not provide for such an extension. POINT OF ERROR NUMBER ONE APPELLANT S PROBATION WAS REVOKED AFTER IT HAD LAWFULLY EXPIRED, IN THAT THE TRIAL COURT LACKED AUTHORITY TO EXTEND THE PROBATIONARY PERIOD UNDER TEX. CODE CRIM. PROC., ART ( C). -1-

7 Relevant Facts Garrett was placed on probation in July 2002, for a period of five years for a state jail felony. (CR.13-15) Garrett was to have completed that probation in July However, in April 2007, the court extended that probation for two years (CR.22). Subsequently, in September 2008, the court issued a probation violation warrant. (CR.24-25) Garrett was subsequently arrested and revoked. (CR.28-29) Statutory Authority Tex. Code Crim. Proc. Art ( c) provides, in part, as follows: (c) The judge may extend a period of community supervision on a showing of good cause under this section as often as the judge determines is necessary, but the period of community supervision in a first, second, or third degree felony case may not exceed 10 years and, except as otherwise provided by this subsection, the period of community supervision in a misdemeanor case may not exceed three years. The judge may extend the period of community supervision in a misdemeanor case for any period the judge determines is necessary, not to exceed an additional two years beyond the three-year limit, if the defendant fails to pay a previously assessed fine, costs, or restitution and the judge determines that extending the period of supervision increases the likelihood that the defendant will fully pay the fine, costs, or restitution. A court may extend a period of community supervision under this section at any time during the period of supervision or, if a motion for revocation of community supervision is filed before the period of supervision ends, before the first anniversary of the date on which the period of supervision expires. Rule of Lenity Courts should not, except in the most extraordinary circumstances, presume to alter the language provided by the Legislature. Boykin v. State, 818 S.W.2d 782, 785 (Tex.Crim.App.1991)..Fielding v. State, 266 S.W.3d 627, 630 (Tex.App. - El Paso 2008). The provisions of the Code [of Criminal Procedure] shall be construed according to the fair import of their terms: to promote justice and effect the objectives of the code. Tex. Pen.Code 1.05(a). -2-

8 The rule of lenity requires that ambiguous criminal statutes be interpreted in favor of a defendant. Wiggins v. State, 2009 WL , 6 (Tex.App. - Houston [1st Dist.] 2009). The rule of lenity applies to the construction of the Code of Criminal Procedure, when both alternative choices or definitions are more-or-less equally reasonable. [Citing Cuellar v. State, 70 S.W.3d 815, 823 (Tex.Crim.App. 2002) n. 8 (Cochran, J., concurring) ]; Fielding v. State, 266 S.W.3d 627, 635 (Tex.App. - El Paso 2008). The rule, as supplied by the U.S. Supreme Court, embodies a presupposition in law to resolve doubts in the enforcement of a penal code against the imposition of a harsher punishment. Bell v. United States, 349 U.S. 81, 83 (1955). The rule of lenity is, in essence, another extra-textual factor for a court to consider if, and only if, a statute is ambiguous. Fielding v. State, 266 S.W.3d 627, 635 (Tex.App. - El Paso 2008). Ex parte Forward, 258 S.W.3d 151, 154 (Tex.Crim.App. 2008). Statutory Ambiguity 22( c) sets limits for extensions on all grades of felonies, and even for misdemeanors-- except for state jail felonies. For first, second and third degree felonies, the limit is not to exceed ten years, and for misdemeanors, the limit is not to exceed three years. What about state jail felonies? Is ten too much? Is six too much? The legislature clearly intended extensions for the more serious felonies, but the intent concerning state jail felonies cannot be ascertained. Certainly, there is no statutory authority for a two-year extension. In this case, the rule of lenity requires that the court-ordered extension in this case be considered void as ambiguous. Since Garrett s probation expired in 2007, before the violations alleged in 2008, occurred, these violations became moot. The conviction must be set aside. -3-

9 PRAYER WHEREFORE, PREMISES CONSIDERED, Appellant prays that this Court reverse the judgment of conviction and order the conviction set aside. Respectfully submitted, BRUCE ANTON STATE BAR OF TEXAS NO Cedar Springs Road, Suite 400 Dallas, Texas / / fax CERTIFICATE OF SERVICE This is to certify that a true and correct copy of Appellant s brief was served on the Dallas County Assistant District Attorney, Appellate Division, 133 N. Riverfront Blvd., LB19, Dallas, Texas 75207, on this the 3rd day of May 2010, by United States Mail, proper postage affixed. Bruce Anton -4-