## I N T H E C O U R T O F C R I M I N A L A P P E A L S O F T E X A S

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A P R I L H O P E W H I T S O N , A p p e l l a n t

v . T H E S T A T E O F T E X A S
O N A P P E L L A N T ’ S P E T I T I O N F O R D I S C R E T I O N A R Y R E V I E W

F R O M T H E S E C O N D C O U R T O F A P P E A L S

Y O U N G C O U N T Y

J O H N S O N , J . , d e l i v e r e d t h e o p i n i o n o f t h e C o u r t i n w h i c h M E Y E R S , P R IC E , W O M A C K , H E R V E Y , C O C H R A N , a n d A L C A L Á , J J . , j o i n e d . K E L L E R , P . J . , f i l e d a c o n c u r r i n g o p i n i o n . K E A S L E R , J . , c o n c u r r e d i n t h e j u d g m e n t . O P I N I O N
On April 5, 2002, appellant pleade d g uilty to the offe nse of burg lary of a habitation. The trial
court defe rre d a finding of g uilt and place d her on community supervision for a period of five y ear s, which beg an that day

. The trial court twice extended her term of community supervision and, upon the state’s third motion to adjudicate he r g uilt, assessed punishment at eig ht y ear s’ conf inement.
On direc t appea l, appellant asser ted that the trial court lac k ed j urisdiction to revoke her community supervision beca use the state filed its th ird motion to adjudicate afte r her community2

supervision had expired. The court of appea ls ove rruled these issues and aff irmed the trial court’s judgme nt. W

hitson v. State , No. 02-11-00156- CR, 2013 WL 978945, at *1 (Tex. App.—For t Worth, delivere d Marc h 14, 2013).
We g rante d revie w of two of the three g rounds t h at ap p el l ant raised in her petition for discretionar

y revie w: “Whether the trial court lacke d jurisdiction to revoke appellant’ s community supervision bec ause the motion to proc eed to a djudicate was filed one da y afte r the seve n and one half y ear period of probation ended” and “When the trial court pronounce s the period of community supervision as being so many y ear s and/or so many months and then the d at e is not corr ectly calc ulated so that the amount of y ear s and/or months and the ending cale ndar date are [not ] the same, which preva ils, the announce ment of the y ear and/or months or the cale ndar date, the longe r period
reg ardle ss of the conf

lict, the court’s intent, or some other method of r esolving the conf lict? ”
We conclude that this Court’s holding in Nesbit v. State set s out the require d end-da te 1
calc ulation and controls in the event of a con fl i ct with a specified end-date. We there fore sustain these g rounds and r ever se the c ourt of appe als’s judg ment.
I. F acts On April 5, 2002, appellant plead g uilty to the offe nse of burg lary of a habitation. The trial
court defe rre d adjudication and place d her on community supervision for a term of five y ear s. Under Nesbit , appellant’ s supervision would end on April 4, 2007, barr ing extension or ear ly termination.
On J anuar y 21, 2005, the state filed a motion to adjudicate appellant’ s g uilt. Four teen months later,

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. D u e t o t h i s r u l e a g a i n s t d o u b l e c o u n t i n g d a y s , w e a c c e p t e d N e s b i t ’ s c l a i m t h a t , “ i n e s s e n c e , . . . h i s p r o b a t i o n t u r n e d i n t o a p u m p k i n a t t h e s t r o k e o f m i d n i g h t ” t h e d a y b e f o r e t h e a n n i v e r s a r y o f h i s s t a r t d a t e
. ” I d

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on Marc h 28, 2006, the tr i al court extended appellant’ s supervision by one y ear , specify ing a termination date of April 6, 2008. The state filed a second motion to adjudicate on Marc h 31, 2008, 2 and, on J uly 18, 2008, the court ag ain extended appellant’ s community supervision. T h i s second order stated an e nd-date of Oc tober 6, 2009, but listed conflicting durations for the extension. The court, having hear d the evidence submi tted, is of t he opini on and so finds that the Def endant’ s conditions of supervision should be amende d and ext en ded for a period of 18 months, with said community supervision to hence forth terminate on the 6th day of Oc tober 2009. [additi onal condition requiring appellant to par ticipate in SAFP]
I t is there fore ORD ERED, ADJUDGED, AND DECREED by the Court that the order placing the Defen d an t on community supervision, here tofore enter ed in this ca u s e, i s here by continued in full forc e and eff ect, that the period of Def endant’ s community

supervision be, and the s ame is here by extended for a period of 1 y ear , with said period of community supervision to hence forth terminate on the 6th day of October 2009. The state filed a third motion to adjudicate on October 5, 2009, and on J anuar y 31, 2011, the trial court a djudicated a

ppellant g uilty

and sente nced he r to eig ht y ear s’ conf inement. Appell an t filed a challeng e to the trial court’s jurisdiction and a motion to vacate the judgme nt and sentenc e, arg uing that her defe rre d adjudication expired on October 4, 2009, one day 3
befor e the state filed its third motion to adjudicate

. Appellant asser ted in a hear ing befor e the trial

co u rt that, pursuant to Nesbit v. State , October 4 was the corr ect end-da te and that the court h ad there fore lost jurisdiction ove r the matter by the time the state moved to a djudicate on October 5.

B y i t s o w n l a n g u a g e , t h e a m e n d e d c o n d i t i o n w a s i n t e r n a l l y i n c o n s i s t e n t ; e v e n d o u b l e c o u n t i n g t h e 2

a n n i v e r s a r y , o n e y e a r w o u l d h a v e b e e n n o l a t e r t h a t A p r i l 5

.

T h e i n t e r n a l i n c o n s i s t e n c y m a y h a v e b e e n a r e s u l t o f u s i n g a b o i l e r - p l a t e o r d e r a n d m i s s i n g a c h a n g e
. 3 A p p e l l a n t c o n c e d e s t h a t t h e i n t e n d e d e x t e n s i o n p e r i o d w a s e i g h t e e n m o n t h s , r a t h e r t h a n o n e y e a r , a s i n d i c a t e d b y t h e t r i a l c o u r t ’ s “ i n c o r r e c t t e r m i n a t i o n l a n g u a g e ” o f O c t o b e r 6 , 2 0 0 9

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T h e s t ate counter ed that the s pecif ied t ermination date in the orders controlled, and the t rial cou rt
ag ree d, deny ing a

ppellant’s motion and sustaining the judgme nt.

II. Court of App eals Opin ion
On direc t appea l, appellant contende d that, under Nesbit , the state filed its motion “one day afte r the seven and one half y ear period of probation ended” and alterna tively that the state filed its motion “over six months afte r the seven y ear period of probation ended.” W hitson v. State , 2013 WL
978945 at *3. Appellant explained the se alterna tive g rounds by noting the contra dictory lang uag e of the trial c ourt’s sec ond extension order. The court of appea ls, howeve r, ag ree d with the state that Nesbit did no t ap p l y to case s in which the trial court has specifie d a termination date beca use there is no need for the calc ulation that

was require d in Nesbit

. I t held that, wher e there is a specific termination date set forth in the order , this date controls over the Nesbit computation. The court also cited State v. Crecy , an unpublished 4 opinion from the Second Court of Appea ls that resolved this issue by deter mining that the intent of

t h e t rial court controls in the event of conflicting dates. I n the instant case , the court o f ap p ea l s

rea soned that the trial court must have intended to extend the supervision period to the termination date l i s t ed i n the order , as it exercised jurisdiction over appellant’ s case in response to the state’s motion filed one day

befor e the spe cified e nd-date

.

III. Argum ents of the P artie s We g rante d two of appellant’ s g rounds for revie w, in which she asks this court to deter mine which date co n t ro l s when a period of y ear s and months and a specifie d cale ndar termination date

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provided in an or der pr oduce conflicting end-da tes, and whether the trial court lacked jurisdi ction
to revoke her community supervision, whe n t h e s t ate moved to adjudicate one day befor e the specifie d end-da te, y et one da y afte r the da te ca lculated unde r Nesbit

. The state asser

ts that the court of appea ls corr ectly found that Nesbit is not applicable beca use the cale ndar date specifie d for termination of appellant’ s defe rre d adjudication “wa s unrela ted to the issue of the ‘annive rsar

y date’ of the period of community supervision.” The only limit ation to the trial court’s extension of community supervision, it adds, is the statutorily m an d at ed ten-y ear maxi mum term for felony offe nses. The state further urg es this Court to declare that, in the event of a conflict betwee n the provision of a term of community supervision and an expli cit termination date, the spe cified da

te should control. Appellant contends that the confusion surrounding the prec ise end-da te of a defe ndant’s community supervision was resolved with this Court’s decision in Nesbit v. State : the term of supervision includes the day of sentenc ing and excludes the anniver sary date in the computation of a def endant’ s last day

of supervision and shoul d control over a calendar date specified by the trial
court. Such a calc ulation would have terminated appellant’ s community supervision on October 4, 2009, one day before the state filed its final motion to adjudicate

. Appellant posits that the discrepa ncy betwee n the Nesbit calc ulation and that of the trial court was likely a cler ical err or made d u r in g th e p r e -

Ne s b it c o n f usion reg arding exact community -super vision end-da tes. Sh e f

u r th e r u r g e s this Court to reje ct the Crecy inquiry into trial-cour t intent as a method of resolving the discrepa ncies cited by the court of appea ls. Appellant notes the lack of a Texas statute providing that a trial court
may specify an end-da

te to confine ment or community supervision; instead, the statutes provide for

a term of y ear s and months, and the Orde r of Def err ed Adjudication form simil arly elicits the6

presc ription of such a time pe riod. The state counter s that the trial court reta ined jurisdiction to revoke appellant’ s community supervision beca

use the state’s motion to adju d i cate was filed one day befor e the term expired. Reasoning that N

es b i t applies only to case s that presc ribe the community -super vision period as a
term of y ear s and months, the state asser ts that a specifie d cale ndar end-da te, wher e provided, should
preva il beca

use it rende rs a Nesbit calc ulation unnece ssary
. The state notes that the only limit ation

on a trial court’s setting and extension of community super v i s i o n i s that the total term for felony offe n s es m ay n ot exceed ten y ear s and posits that Texas statutory lang uag e ref ere ncing these 5
durations as “per iods” and “ter ms” does not prec lude the provision of and adher ence to definite enddates. The state also dis tinguishes an orig inal probation order and the ex tension of such a period,
arg uing tha t appellant’s c itation to the Order of Def err ed Adjudication does not resolve whether a
term or period, or a specifie d end-da te, is require d for an amendment. Finally , the state cites Section
311.026 of the Code Construction Act, which provides that, wher e a g ene ra l an d s p ecial or local provision irrec oncilably

conflict, the special or loc al provision preva ils and urg es us to apply this 6 principle to the issue at hand so that the specific cale ndar date controls in all community -super vision

case s. V. Analysis When in the j udg e’s opinion t he best interests of society and the defe ndant wil l be served,

t h e t ri al j u d ge, upon rec eiving a plea of g uilty or plea of nolo contende re and finding that the evidenc e prese nted s u b s t anti ates the defe ndant' s g uilt, may place the defe ndant on community

T E X
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supervision without enter ing an adjudication of guilt. T E X
. C O D E C R I M
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. art. 42.12, § 5(a)

. The judge may extend the defe ndant’s term of community supervision upon a showing of g ood

cause as often as he or she deter mines is nece ssary , except that the total period may not e x cee d ten
y ear s for felony case s. Id. art. 42.12, § 22(c)

. When this term has expired, the trial court ordinarily
must “di s m i s s t h e proce eding s ag ainst the defe ndant and discharg e him.” Id. art. 42.12, § 5(c)

. Howeve r, the trial court reta ins jurisdiction to proce ed to adjudicate g uilt if, befor e the term expires, the state files a motion to adjudicate and a capia s is issued for the defe ndant’s arr est. Id. art. 42.12, § 5(h); see also Ex parte Donaldson , 86 S.W .3d 231, 232 (Tex. Crim. App. 2002) (“We have long held that a trial court has jurisdiction to hear a motion to revoke [probation afte r the period expires]

as long as the motion was filed, and a war rant o r capia s proper ly issued, during the probationar y period.” ); Guillot v. State , 543 S.W .2d 650, 652 (Tex. Crim. App. 1976) (obser ving that both motion
to revoke and capia s for arr est must be issued prior to expiration of community supervision for trial
court to re tain jurisdiction). “This Court has not alway s been clea r on the [precise] duration of a time period for purposes of a term of community supervision

. . . .” Nesbit v. State , 227 S. W

. 3 d 6 4 , 6 8 (Tex. Crim. App. 2007). Compare Donaldson , 86 S.W .3d at 232 (sug g esting in dicta that six -y ear probationar y period imposed on May 10, 1993, expired on May 10, 1999) and Guillot , 543 S.W .2d at 651 (noting in dicta that defe ndant’s probation, which beg an on Marc h 27, 1972, had expired on Marc h 27, 1975) with
Ex parte Fulce , 993 S.W .2d 6 6 0 , 6 6 2 (Tex. Crim. App. 1999) (stating that two-y ear community supervision beg inning on F ebrua ry 18, 1994, “wa s scheduled to e x pire on F ebrua ry 17, 1996”).
I n 2007, howeve r, we resolved these discre p an ci es in calc ulating community -super vision end-da tes in Nesbit v. State

. The trial court had adjudicate d Nesbit g uilty of indece ncy with a child8

on April 29, 1994, and place d him on “re g ular” community supervision for a term of ten y ear s that beg an that day

. Nesbit , 227 S.W .3d at 66. On April 29, 2004, the state filed a motion to revoke his community supervision, alleg ing that he had violated its terms by associating with persons or place s of disreputable char acte r. Id

. The trial court reje cted Ne s b i t ’s arg ument that his community supervision ended at midnight on April 28, g rante d the state’s motion, and sentenc ed Nesbit to ten
y ear s in prison. Id . The c ourt of appe als reve rsed, holding that the corr ect end-da te was April 28, 2004, and that the t ri al court lacke d jurisdiction to revoke his community supervision due to the principle now know n as the rule ag ainst double counting

. The opera tive rule is that the duration of a time period during which a person suffe rs specifie d restric tions upon his fre edom by virtue of either a sentenc e of imprisonment or community supervision includes the first day in which such restrictions upon fre edom opera te and excludes the anniver sary date. The same day cannot be double counted

. This r

ule is log ical, fair, and in a ccor d with pr ior prec edent construing the Code Construction Act. Id

. at 6 9 (empha sis added) (footnotes omitted). Thus the deter mination that Nesbit’s ten-y ea r community supervision lasted from April 29, 1994, throug h April 28, 2004, rested on this premise that the April 29 anniver sary date could no t b e included twice in the first and last y ear s of his community

supervision. This Court aff

irmed, stating that “[i] f the first day of the period is to be included,

. . . the last day of the pe riod should be excluded[; ot herw ise,] the period would be [the specifie d period] plus

one day .” Id

. at 68 (quoting McG aughy v. Richardson , 599 S.W .2d 113, 115 (Tex. Civ. App.–Dallas 1980, writ ref

’d n.r.e .)). As the state c orre ctly

observe s, the Nesbit

controve rsy

did not require this Court to choose betwee n a standard calc ulation and an end-da te s p ecified by a trial court. Today we are asked to9

deter mine what the r

ule will be in the eve nt of such a c onflict.
As the state and court of appea ls posit, a definite end-da te provided by the trial court could be used both to set the cor rec t termination date and control i n the event of a conflict with the date calc ulated pursuant to Nesbit

. The essenc e of this a rg ument is tha t Nesbit established the standard method of calc ulating the final day of community supervision when no other g uidance has been gi v en ex cept a period stated in y ear s and months and is unnece ssary and inapplicable when an y ambig uity has been resolved by the presc ription o f a d ef i n i t e cale ndar end-da te in the order

. A second approa ch to deter

mine the corr ect end-da te in the event of uncer tainty , relied on by State v.

7 Crecy and cited by the court of appea ls in this case , is to look to the trial court’s intent when it signe d the orde r of c ommunity

supervision. Although Nesbit did not square ly addre ss this inconsistency , we believe it s clea rly articula

ted rationale and concer

ns are dispositi ve of the i ssu e b ef o re u s. The underly ing conce rn i n that case consisted of advanc ing the twin g oals of protec ting defe ndants from serving punishments in excess of their presc ribed terms and ensuring their rig ht to understand the p re cise conditions of their punishments. That Nesbit did not involve an order s p ec i fy i ng a cale ndar end-da te does not nullify our expli cit ruling that the initial cale ndar date of community supervision period may not be counted in the final y ear
. I n that case , we decla red that, beca

use Nesbit’s community supervision beg an on the

A p p e l l a n t u r g e s t h a t w e c o u l d c o n s t r u e N e s b i t t o a p p l y t o a l l d e t e r m i n a t i o n s o f c o m m u n i t y - s u p e r v i s i o n 7 d u r a t i o n , a d h e r i n g t o i t s e x p r e s s p r o h i b i t i o n o f i n c l u d i n g t h e s t a r t d a t e i n t h e f i n a l y e a r
. A m o d i f

i c a t i o n n o t s u g g e s t e d b y a p p e l l a n t w o u l d b e t o a p p l y N e s b i t o n l y t o t h e e x t e n t t h a t d o i n g s o w o u l d p r e v e n t t h e d i s a l l o w e d d o u b l e c o u n t i n g
. F o r e x a m p l e , i f t h e t r i a l c o u r t o r d e r e d a d e f e n d a n t t o c o m p l e t e a f

i v e - y e a r c o m m u n i t y s u p e r v i s i o n t e r m b e g i n n i n g o n J a n u a r y 1 , 2 0 1 5 , a n d a l s o s e t a t e r m i n a t i o n d a t e o f D e c e m b e r 3 0 , 2 0 1 9 , i t c o u l d b e a r g u e d t h a t t h e N e s b i t c a l c u l a t i o n n e e d n o t a p p l y , a s a d h e r i n g t o t h e s p e c i f i e d d a t e w o u l d n o t r u n a f o u l o f N e s b i t ’ s r u l e a g a i n s t d o u b l e c o u n t i n g
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date of the order , he suffe red r estrictions on his free dom that very day

. Nesbit , 227 S.W .3d at 69.
Acc ording ly , we “nec essar ily reje ct[ed] the State’s arg ument that appellant is require d to serve ten
y ear s and a day when he was placed on community supervision for e x actly ten y ear s, no more, no less.” Id

. We declined to count the anniver sary date of Nesbit’s community supervision order in the final y ear of his te rm, as its inclusion would have restric ted his liber ty one day bey ond the deca delong term set forth in the court o rd er
. Her e, holding that appellant’ s seven- and-one -half- y ear defe rre d adjudication, which be g an im mediately upon entry of t he order on April 5, 2002, did not end until October 6, 2009, would result in the same impermissib l e d o uble counting we soug ht to

era dicate in Nesbit

. The adoption of a rule that would result in defe ndants s erving community

supervision terms longe r than their presc ribed terms would counter both Nesbit and, more critica lly , violate due pr ocess. Moreove r, if we wer e to uphold the court of appea ls’ endorse ment of State v. Crecy , further doubt would be injected into def endants’ a scer

tainment of the e x act length of their supervisions. Such an inquiry into the mind o f the trial court as to which date preva ils would leave many defe ndants unclea

r as to the prec ise end-da te of their community -super vision terms until they have alre ady been sentenc ed to jail and would also nece ssarily mean that the decision of the trial court to exercise jurisdiction in these ty pes of case s could not be challeng ed. As for apply ing Nesbit only to the extent of excluding double counting , the same notion of clar ity in sentenc ing applies. Although the state and court of appea ls urg e this Court to rea d Nesbit narr owly so as t o b ar o n l y ex cessive

c o mm u n it y - s u p e r v is io n te r ms , th is Court is compelled to require that order s constraining defe ndants ’ liberty unequivoca lly

state the duration of this li mitation. These considerations of a defe ndant’s rig ht to serve an appropr iate and rea dily asce rtainable11

sentenc e lead us to hold that the Nesbit calc ulation controls in all deter minations of community supervision duration. I t follows that, should a t ri al co u rt elec t to provide a specific end-da te in addition to the standard term of y ear s and months, this date must be corr ectly computed pursuant to Nesbit

. I n this case, the e rror

beg an with the first e x tension; the trial court orde red a n extension of

one y ear –to April 4, 2007–y et the order err oneously specifie d an end-da te two day s in excess of one
y ear
. The err or was repe ated in the subsequent extensions, eac h of which extended supervision for

a define d period of y ear s or months

. A c c o r d ing ly , we conclude that appellant’ s defe rre d adjudication ended on October 4, 2009, and the trial court, there fore , did not reta in jurisdiction to g rant the state’s motion to adjudicate filed on Oc tober 5 of tha t y ear
. VI. Conclusion We hold that Nesbit controls in all computations of community -super vision end-da tes and that the trial court did not have jurisdiction when the state’s third motion to adjudicate was not filed timely

. We reve rse the judgme nt of the court of appea ls and rema nd this cause to the trial court for further proce eding s consistent with this opi nion.

Deliver ed: May

7, 2014 Publis h