NO. 12-08-00252-CR

IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT

TYLER, TEXAS

LISA TYLER OVERSTREET, § APPEAL FROM THE SECOND

APPELLANT

V. § JUDICIAL DISTRICT COURT OF

THE STATE OF TEXAS,

APPELLEE § CHEROKEE COUNTY, TEXAS

 

MEMORANDUM OPINION

Appellant Lisa Tyler Overstreet contends that the trial court was without jurisdiction to

render an order adjudicating her guilty of the offense of forgery and assessing a two year sentence.

Appellant brings two issues, the first of which is dispositive. In her first issue, she claims that the

trial court was without jurisdiction to adjudicate her guilt after the expiration of her period of

community supervision, because no capias for her arrest had been issued before the term of

community supervision imposed had expired. We sustain Appellant’s first issue, reverse the order

adjudicating her guilt, and order her discharged.

BACKGROUND

Appellant pleaded guilty to forgery, and the trial court deferred adjudication of guilt and

placed her on community supervision for a term of three years. Later, Appellant approved the

modification of the terms and conditions of her community supervision. Pursuant to the agreement,

the trial court ordered Appellant to make additional payments and further ordered her period of

community supervision extended to expire on March 14, 2008. After the trial court ordered the

extension, Appellant was convicted of marijuana possession and also failed to make various

payments ordered by the trial court. Before her term of community supervision expired, the State

filed its application to revoke Appellant’s community supervision and to proceed to an adjudication
2

of guilt. However, a capias for her arrest did not issue until March 20, 2008, six days after the

expiration of the period of community supervision. The trial court conducted a hearing on the

State’s application to adjudicate guilt on May 6, 2008. The trial court found the allegations of

Appellant’s marijuana use true, adjudicated Appellant guilty, and assessed her punishment at

confinement for two years.

JURISDICTION

In her first issue, Appellant contends that the trial court was without jurisdiction to adjudicate

her guilt, because her period of community supervision had expired before the issuance of a capias

for her arrest.

Applicable Law

Texas Code of Criminal Procedure article 42.12 governs community supervision. See TEX.

CODE CRIM. PROC. ANN. art. 42.12 (Vernon Supp. 2008);In re Cherry, 258 S.W.3d 328, 332 (Tex.

App.–Austin 2008, orig. proceeding). Section 5 of the same article contains the provisions

specifically related to deferred adjudication. TEX. CODE CRIM. PROC. ANN. art. 42.12 § 5 (Vernon

Supp. 2008). When the trial court defers adjudication of a defendant’s guilt and places the defendant

on community supervision, the trial court retains jurisdiction over the probationer for the duration

of community service imposed, and may revoke, terminate, or modify the probation. See id. art.

42.12 §§ 5(a), 5(b), 20, 22 (Vernon Supp. 2008). At the expiration of the period of community

service imposed, the trial court, if it has not proceeded to an adjudication of guilt, must “dismiss the

proceedings against the defendant and discharge him.” Id. art. 42.12 § 5(c) (Vernon Supp. 2008).

The trial court, however, retainsjurisdiction to proceed with an adjudication of guilt, despite

the expiration of the term of community service imposed, “if before the expiration the attorney

representing the state files a motion to proceed with the adjudication and a capias is issued for the

arrest of the defendant.” Id. art. 42.12 § 5(h) (Vernon Supp. 2008) (emphasis added). The identical

jurisdictional limitations are found in section 21(e), which provides that the trial court retains

jurisdiction to revoke, continue, or modify community service after the probationary period has

expired, if, before the term of community service expires, the attorney representing the state “files

a motion to revoke, continue, or modify community supervision and a capias is issued for the arrest

of the defendant.” Id. art. 42.12 § 21(e) (Vernon Supp. 2008).
3

Judicial action taken after the court’s jurisdiction over a cause has expired is a nullity. State

ex rel. Latty v. Owens, 907 S.W.2d 484, 486 (Tex. 1995); In re Hancock, 212 S.W.3d 922, 929

(Tex. App.–Fort Worth 2007, orig. proceeding). A court has no authority to act outside the periods

permitted by statute. Houlihan v. State, 579 S.W.2d 213, 219 (Tex. Crim. App. 1979). A review

of the authorities reveals a long, unchallenged line of cases wherein the courts have consistently held

that the trial court has no jurisdiction to revoke probation after the term of probation expires unless

the motion to revoke is filed and the capias issued prior to the end of the probationary period.

In Pollard v. State, 172 Tex. Crim. 39, 353 S.W.2d 449 (1962), the State filed a motion to

revoke probation six days before the term of probation expired, but the orderrevoking probation was

reversed because no warrant issued before the end of the probationary period. Id., 172 Tex. at 40,

353 S.W.2d at 449-50. In Coffey v. State, 500 S.W.2d 515 (Tex. Crim. App. 1973), the court held

a conviction void for lack of jurisdiction, because the application to revoke was filed after the

probationary period had expired although the capias had been timely filed. Id. at 516-17. In Lynch

v. State, 502 S.W.2d 740 (Tex. Crim. App. 1973), the court of criminal appeals determined that,

absent a showing that a capias had issued during the term of probation, the trial court lacked

authority to revoke Lynch’s probation. Id. at 741.

In the more recent case of In re Hancock, cited by Appellant, the trial court on

September 10, 1999, placed Hancock on community supervision for ten years. On January 28, 2005,

the State and the defense agreed to various modifications of the conditions of community supervision

and extended his period of community service for one year from the date of the hearing, effectively

abbreviating the original term imposed by over four years. Six months after the end of the shortened

term provided in its January 28, 2005 order, the trial court attempted to restore by judgment nunc

pro tunc Hancock’s original ten year probationary term. The State moved to revoke his probation

on August 1, 2006. In re Hancock, 212 S.W.3d at 924-25. The Fort Worth Court of Appeals

decided the trial court’s error, if any, in shortening his probationary term was judicial, not clerical,

and could not be corrected by judgment nunc pro tunc. Id. at 927-28. The court of appeals held that

the trial court was without jurisdiction to revoke Hancock’s probation, because no motion to revoke

had been filed and no capias issued until oversix months after the term set out in the amended order

had expired. Id. at 929.

Absent these two statutory requirements, the trial court also lacks jurisdiction to proceed to
4

an adjudication of guilt once the probationary period expires. In re Cherry, 258 S.W.3d at 332. In

Garza v. State, 695 S.W.2d 726 (Tex. App.–Dallas 1985), aff’d, 725 S.W.2d 256 (Tex. Crim. App.

1987), the court of appeals recognized that a trial court has jurisdiction to hear a motion and revoke

probation after the expiration of the probationary period if the motion to revoke was filed and the

capias for arrest issued prior to the expiration of the period. The court found, however, that the

record did not show compliance with either condition. The State’s amended motion to proceed with

an adjudication of guilt was not file stamped, and no capias appeared in the record. The court

reversed Garza’s conviction and remanded the cause for entry of an acquittal. Id. at 729.

In Pino v. State, 189 S.W.3d 911 (Tex. App.–Texarkana 2006, pet. ref’d), the State filed its

motion and capias issued on the fifth anniversary of the trial court’s order deferring adjudication of

Pino’s guilt and placing him on community supervision for five years. The court of appeals held that

the term of his community supervision expired on the day before the anniversary date of the trial

court’s order. Id. at 912. Therefore, the State was one day late in filing its motion and obtaining the

issuance of a capias. Consequently, the court of appeals held the trial court lacked jurisdiction to

proceed with an adjudication of guilt. Id. at 915.

We conclude that since no capias for Appellant’s arrest issued before her term of community

service had expired, the trial court lacked jurisdiction to proceed with an adjudication of her guilt.

Appellant’s first issue is sustained. Because we conclude that Appellant’s first issue is dispositive,

we will not address Appellant’s second issue. See TEX. R. APP. P. 47.1.

DISPOSITION

The order adjudicating Appellant’s guilt is reversed and Appellant is ordered discharged.

 BILL BASS 

Justice

Opinion delivered April 30, 2009.

Panel consisted of Worthen, C J., Hoyle, J., and Bass, Retired Justice,

Twelfth Court of Appeals, Tyler, sitting by assignment.

(DO NOT PUBLISH)