IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
NO. PD-0514-13
APRIL HOPE WHITSON, Appellant
v.
THE STATE OF TEXAS
ON APPELLANT’S PETITION FOR DISCRETIONARY REVIEW
FROM THE SECOND COURT OF APPEALS
YOUNG COUNTY
J OHNSON, J., delivered the opinion of the Court in which M EYERS, P RICE,
W OMACK , H ERVEY, C OCHRAN, and A LCALÁ, JJ., joined. K ELLER, P.J., filed a
concurring opinion. K EASLER, J., concurred in the judgment.
OPINION
On April 5, 2002, appellant pleaded guilty to the offense of burglary of a habitation. The trial
court deferred a finding of guilt and placed her on community supervision for a period of five years,
which began that day. The trial court twice extended her term of community supervision and, upon
the state’s third motion to adjudicate her guilt, assessed punishment at eight years’ confinement.
On direct appeal, appellant asserted that the trial court lacked jurisdiction to revoke her
community supervision because the state filed its third motion to adjudicate after her community
2
supervision had expired. The court of appeals overruled these issues and affirmed the trial court’s
judgment. Whitson v. State, No. 02-11-00156-CR, 2013 WL 978945, at *1 (Tex. App.—Fort Worth,
delivered March 14, 2013).
We granted review of two of the three grounds that appellant raised in her petition for
discretionary review: “Whether the trial court lacked jurisdiction to revoke appellant’s community
supervision because the motion to proceed to adjudicate was filed one day after the seven and one
half year period of probation ended” and “When the trial court pronounces the period of community
supervision as being so many years and/or so many months and then the date is not correctly
calculated so that the amount of years and/or months and the ending calendar date are [not] the same,
which prevails, the announcement of the year and/or months or the calendar date, the longer period
regardless of the conflict, the court’s intent, or some other method of resolving the conflict?”
We conclude that this Court’s holding in Nesbit v. State1 sets out the required end-date
calculation and controls in the event of a conflict with a specified end-date. We therefore sustain
these grounds and reverse the court of appeals’s judgment.
I. Facts
On April 5, 2002, appellant plead guilty to the offense of burglary of a habitation. The trial
court deferred adjudication and placed her on community supervision for a term of five years. Under
Nesbit, appellant’s supervision would end on April 4, 2007, barring extension or early termination.
On January 21, 2005, the state filed a motion to adjudicate appellant’s guilt. Fourteen months later,
1
Nesbit v. State, 227 S.W .3d 64 (Tex. Crim. App. 2007). In Nesbit, we held that, because an order for
community supervision takes effect on the date of its entry, the duration of this period includes this date and excludes
the anniversary date on the final year. Id. at 69. Due to this rule against double counting days, we accepted Nesbit’s
claim that, “in essence, . . . his probation turned into a pumpkin at the stroke of midnight” the day before the
anniversary of his start date.” Id. at 65.
3
on March 28, 2006, the trial court extended appellant’s supervision by one year, specifying a
termination date of April 6, 2008.2 The state filed a second motion to adjudicate on March 31, 2008,
and, on July 18, 2008, the court again extended appellant’s community supervision. This second
order stated an end-date of October 6, 2009, but listed conflicting durations for the extension.
The court, having heard the evidence submitted, is of the opinion and so finds that
the Defendant’s conditions of supervision should be amended and extended for a
period of 18 months, with said community supervision to henceforth terminate on the
6th day of October 2009.
[additional condition requiring appellant to participate in SAFP]
It is therefore ORDERED, ADJUDGED, AND DECREED by the Court that the
order placing the Defendant on community supervision, heretofore entered in this
cause, is hereby continued in full force and effect, that the period of Defendant’s
community supervision be, and the same is hereby extended for a period of 1 year,
with said period of community supervision to henceforth terminate on the 6th day of
October 2009.
The state filed a third motion to adjudicate on October 5, 2009, and on January 31, 2011, the
trial court adjudicated appellant guilty and sentenced her to eight years’ confinement.
Appellant filed a challenge to the trial court’s jurisdiction and a motion to vacate the
judgment and sentence, arguing that her deferred adjudication expired on October 4, 2009,3 one day
before the state filed its third motion to adjudicate. Appellant asserted in a hearing before the trial
court that, pursuant to Nesbit v. State, October 4 was the correct end-date and that the court had
therefore lost jurisdiction over the matter by the time the state moved to adjudicate on October 5.
2
By its own language, the amended condition was internally inconsistent; even double counting the
anniversary, one year would have been no later that April 5.
3
The internal inconsistency may have been a result of using a boiler-plate order and missing a change.
Appellant concedes that the intended extension period was eighteen months, rather than one year, as indicated by the
trial court’s “incorrect termination language” of October 6, 2009.
4
The state countered that the specified termination date in the orders controlled, and the trial court
agreed, denying appellant’s motion and sustaining the judgment.
II. Court of Appeals Opinion
On direct appeal, appellant contended that, under Nesbit, the state filed its motion “one day
after the seven and one half year period of probation ended” and alternatively that the state filed its
motion “over six months after the seven year period of probation ended.” Whitson v. State, 2013 WL
978945 at *3. Appellant explained these alternative grounds by noting the contradictory language
of the trial court’s second extension order.
The court of appeals, however, agreed with the state that Nesbit did not apply to cases in
which the trial court has specified a termination date because there is no need for the calculation that
was required in Nesbit. It held that, where 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,4 an unpublished
opinion from the Second Court of Appeals that resolved this issue by determining that the intent of
the trial court controls in the event of conflicting dates. In the instant case, the court of appeals
reasoned that the trial court must have intended to extend the supervision period to the termination
date listed in the order, as it exercised jurisdiction over appellant’s case in response to the state’s
motion filed one day before the specified end-date.
III. Arguments of the Parties
We granted two of appellant’s grounds for review, in which she asks this court to determine
which date controls when a period of years and months and a specified calendar termination date
4
State v. Crecy, No. 05-11-01003-CR, 2012 W L 2106534, at *2 (Tex. App.— Dallas June 12, 2012, pet.
ref’d).
5
provided in an order produce conflicting end-dates, and whether the trial court lacked jurisdiction
to revoke her community supervision, when the state moved to adjudicate one day before the
specified end-date, yet one day after the date calculated under Nesbit.
The state asserts that the court of appeals correctly found that Nesbit is not applicable because
the calendar date specified for termination of appellant’s deferred adjudication “was unrelated to the
issue of the ‘anniversary date’ of the period of community supervision.” The only limitation to the
trial court’s extension of community supervision, it adds, is the statutorily mandated ten-year
maximum term for felony offenses. The state further urges this Court to declare that, in the event
of a conflict between the provision of a term of community supervision and an explicit termination
date, the specified date should control.
Appellant contends that the confusion surrounding the precise end-date of a defendant’s
community supervision was resolved with this Court’s decision in Nesbit v. State: the term of
supervision includes the day of sentencing and excludes the anniversary date in the computation of
a defendant’s last day of supervision and should control over a calendar date specified by the trial
court. Such a calculation 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
discrepancy between the Nesbit calculation and that of the trial court was likely a clerical error made
during the pre-Nesbit confusion regarding exact community-supervision end-dates. She further urges
this Court to reject the Crecy inquiry into trial-court intent as a method of resolving the discrepancies
cited by the court of appeals. Appellant notes the lack of a Texas statute providing that a trial court
may specify an end-date to confinement or community supervision; instead, the statutes provide for
a term of years and months, and the Order of Deferred Adjudication form similarly elicits the
6
prescription of such a time period.
The state counters that the trial court retained jurisdiction to revoke appellant’s community
supervision because the state’s motion to adjudicate was filed one day before the term expired.
Reasoning that Nesbit applies only to cases that prescribe the community-supervision period as a
term of years and months, the state asserts that a specified calendar end-date, where provided, should
prevail because it renders a Nesbit calculation unnecessary. The state notes that the only limitation
on a trial court’s setting and extension of community supervision is that the total term for felony
offenses may not exceed ten years5 and posits that Texas statutory language referencing these
durations as “periods” and “terms” does not preclude the provision of and adherence to definite end-
dates. The state also distinguishes an original probation order and the extension of such a period,
arguing that appellant’s citation to the Order of Deferred Adjudication does not resolve whether a
term or period, or a specified end-date, is required for an amendment. Finally, the state cites Section
311.026 of the Code Construction Act, which provides that, where a general and special or local
provision irreconcilably conflict, the special or local provision prevails6 and urges us to apply this
principle to the issue at hand so that the specific calendar date controls in all community-supervision
cases.
V. Analysis
When in the judge’s opinion the best interests of society and the defendant will be served,
the trial judge, upon receiving a plea of guilty or plea of nolo contendere and finding that the
evidence presented substantiates the defendant's guilt, may place the defendant on community
5
T EX . C OD E C RIM . P RO C . art. 42.12(b)(1).
6
T EX . G O V ’T C O DE § 311.026(b).
7
supervision without entering an adjudication of guilt. TEX . CODE CRIM . PROC. ANN . art. 42.12, §
5(a). The judge may extend the defendant’s term of community supervision upon a showing of good
cause as often as he or she determines is necessary, except that the total period may not exceed ten
years for felony cases. Id. art. 42.12, § 22(c). When this term has expired, the trial court ordinarily
must “dismiss the proceedings against the defendant and discharge him.” Id. art. 42.12, § 5(c).
However, the trial court retains jurisdiction to proceed to adjudicate guilt if, before the term expires,
the state files a motion to adjudicate and a capias is issued for the defendant’s arrest. 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 after the period expires]
as long as the motion was filed, and a warrant or capias properly issued, during the probationary
period.”); Guillot v. State, 543 S.W.2d 650, 652 (Tex. Crim. App. 1976) (observing that both motion
to revoke and capias for arrest must be issued prior to expiration of community supervision for trial
court to retain jurisdiction).
“This Court has not always been clear on the [precise] duration of a time period for purposes
of a term of community supervision . . . .” Nesbit v. State, 227 S.W.3d 64, 68 (Tex. Crim. App.
2007). Compare Donaldson, 86 S.W.3d at 232 (suggesting in dicta that six-year probationary period
imposed on May 10, 1993, expired on May 10, 1999) and Guillot, 543 S.W.2d at 651 (noting in dicta
that defendant’s probation, which began on March 27, 1972, had expired on March 27, 1975) with
Ex parte Fulce, 993 S.W.2d 660, 662 (Tex. Crim. App. 1999) (stating that two-year community
supervision beginning on February 18, 1994, “was scheduled to expire on February 17, 1996”).
In 2007, however, we resolved these discrepancies in calculating community-supervision
end-dates in Nesbit v. State. The trial court had adjudicated Nesbit guilty of indecency with a child
8
on April 29, 1994, and placed him on “regular” community supervision for a term of ten years that
began that day. Nesbit, 227 S.W.3d at 66. On April 29, 2004, the state filed a motion to revoke his
community supervision, alleging that he had violated its terms by associating with persons or places
of disreputable character. Id. The trial court rejected Nesbit’s argument that his community
supervision ended at midnight on April 28, granted the state’s motion, and sentenced Nesbit to ten
years in prison. Id. The court of appeals reversed, holding that the correct end-date was April 28,
2004, and that the trial court lacked jurisdiction to revoke his community supervision due to the
principle now known as the rule against double counting.
The operative rule is that the duration of a time period during which a person suffers
specified restrictions upon his freedom by virtue of either a sentence of imprisonment
or community supervision includes the first day in which such restrictions upon
freedom operate and excludes the anniversary date. The same day cannot be double
counted. This rule is logical, fair, and in accord with prior precedent construing the
Code Construction Act.
Id. at 69 (emphasis added) (footnotes omitted). Thus the determination that Nesbit’s ten-year
community supervision lasted from April 29, 1994, through April 28, 2004, rested on this premise
that the April 29 anniversary date could not be included twice in the first and last years of his
community supervision.
This Court affirmed, stating that “[i]f the first day of the period is to be included, . . . the last
day of the period should be excluded[; otherwise,] the period would be [the specified period] plus
one day.” Id. at 68 (quoting McGaughy v. Richardson, 599 S.W.2d 113, 115 (Tex. Civ. App.–Dallas
1980, writ ref’d n.r.e.)).
As the state correctly observes, the Nesbit controversy did not require this Court to choose
between a standard calculation and an end-date specified by a trial court. Today we are asked to
9
determine what the rule will be in the event of such a conflict.
As the state and court of appeals posit, a definite end-date provided by the trial court could
be used both to set the correct termination date and control in the event of a conflict with the date
calculated pursuant to Nesbit. The essence of this argument is that Nesbit established the standard
method of calculating the final day of community supervision when no other guidance has been
given except a period stated in years and months and is unnecessary and inapplicable when any
ambiguity has been resolved by the prescription of a definite calendar end-date in the order. A
second approach to determine the correct end-date in the event of uncertainty,7 relied on by State v.
Crecy and cited by the court of appeals in this case, is to look to the trial court’s intent when it signed
the order of community supervision.
Although Nesbit did not squarely address this inconsistency, we believe its clearly articulated
rationale and concerns are dispositive of the issue before us. The underlying concern in that case
consisted of advancing the twin goals of protecting defendants from serving punishments in excess
of their prescribed terms and ensuring their right to understand the precise conditions of their
punishments.
That Nesbit did not involve an order specifying a calendar end-date does not nullify our
explicit ruling that the initial calendar date of community supervision period may not be counted in
the final year. In that case, we declared that, because Nesbit’s community supervision began on the
7
Appellant urges that we could construe Nesbit to apply to all determinations of community-supervision
duration, adhering to its express prohibition of including the start date in the final year. A modification not
suggested by appellant would be to apply Nesbit only to the extent that doing so would prevent the disallowed
double counting. For example, if the trial court ordered a defendant to complete a five-year community supervision
term beginning on January 1, 2015, and also set a termination date of December 30, 2019, it could be argued that the
Nesbit calculation need not apply, as adhering to the specified date would not run afoul of Nesbit’s rule against
double counting.
10
date of the order, he suffered restrictions on his freedom that very day. Nesbit, 227 S.W.3d at 69.
Accordingly, we “necessarily reject[ed] the State’s argument that appellant is required to serve ten
years and a day when he was placed on community supervision for exactly ten years, no more, no
less.” Id. We declined to count the anniversary date of Nesbit’s community supervision order in the
final year of his term, as its inclusion would have restricted his liberty one day beyond the decade-
long term set forth in the court order. Here, holding that appellant’s seven-and-one-half-year
deferred adjudication, which began immediately upon entry of the order on April 5, 2002, did not
end until October 6, 2009, would result in the same impermissible double counting we sought to
eradicate in Nesbit. The adoption of a rule that would result in defendants serving community-
supervision terms longer than their prescribed terms would counter both Nesbit and, more critically,
violate due process.
Moreover, if we were to uphold the court of appeals’ endorsement of State v. Crecy, further
doubt would be injected into defendants’ ascertainment of the exact length of their supervisions.
Such an inquiry into the mind of the trial court as to which date prevails would leave many
defendants unclear as to the precise end-date of their community-supervision terms until they have
already been sentenced to jail and would also necessarily mean that the decision of the trial court to
exercise jurisdiction in these types of cases could not be challenged. As for applying Nesbit only to
the extent of excluding double counting, the same notion of clarity in sentencing applies. Although
the state and court of appeals urge this Court to read Nesbit narrowly so as to bar only excessive
community-supervision terms, this Court is compelled to require that orders constraining defendants’
liberty unequivocally state the duration of this limitation.
These considerations of a defendant’s right to serve an appropriate and readily ascertainable
11
sentence lead us to hold that the Nesbit calculation controls in all determinations of community
supervision duration. It follows that, should a trial court elect to provide a specific end-date in
addition to the standard term of years and months, this date must be correctly computed pursuant to
Nesbit.
In this case, the error began with the first extension; the trial court ordered an extension of
one year–to April 4, 2007–yet the order erroneously specified an end-date two days in excess of one
year. The error was repeated in the subsequent extensions, each of which extended supervision for
a defined period of years or months. Accordingly, we conclude that appellant’s deferred adjudication
ended on October 4, 2009, and the trial court, therefore, did not retain jurisdiction to grant the state’s
motion to adjudicate filed on October 5 of that year.
VI. Conclusion
We hold that Nesbit controls in all computations of community-supervision end-dates and
that the trial court did not have jurisdiction when the state’s third motion to adjudicate was not filed
timely. We reverse the judgment of the court of appeals and remand this cause to the trial court for
further proceedings consistent with this opinion.
Delivered: May 7, 2014
Publish
Whitson, April Hope
Combined Opinion