Beason, Demetrius

In the Court of Criminal
Appeals of Texas
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No. WR-93,764-01
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EX PARTE DEMETRIUS BEASON,
Applicant

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On Application for Writ of Habeas Corpus
Cause No. W16-52471-M(A) in the 194th District Court
Dallas County
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YEARY, J., filed dissenting opinion.

Applicant’s claim in this Court does not challenge the validity of
his conviction or ultimate sentence—at all. So why does the Court afford
the drastic and unnecessary remedy of a whole new punishment
proceeding on the revocation trial of his deferred adjudication? A new
punishment proceeding is not called for by either Applicant’s claims, or
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by the evidence. The Court should act with greater restraint in
fashioning an appropriate remedy under these circumstances.
Indeed, in my view, Applicant may not even be entitled to any
relief at all, much less a new punishment hearing. So, I feel compelled
to say in these circumstances that, at the very least, the Court should
consider some less drastic remedy. At a minimum the Court should limit
the relief it affords to a remedy for the deprivation that Applicant
actually claims. Because the Court does not, and because it instead
pushes ahead to upset Applicant’s perfectly lawful and completely
unchallenged sentence, I dissent.
I. BACKGROUND
Applicant committed burglary of a habitation in 2016. He pled
guilty to that offense under a plea agreement in accordance with which
he received six years’ deferred adjudication community supervision.
Then, in 2020, the State filed a motion to revoke that probation and to
proceed to adjudication.
This time, in an open plea, Applicant pled true to the allegations
in the State’s motion, and the trial court assessed punishment at a ten-
year term of confinement in the penitentiary. At that time, the trial
court expressed a willingness to consider bringing Applicant back,
within the statutory timetable, and placing him on so-called “shock”
probation. See TEX. CODE CRIM. PROC. art. 42A.202 (providing discretion
in the trial court to suspend further execution of sentence and place
convict on community supervision, extending its jurisdiction for 180
days from the date sentence begins for this purpose). But nothing in the
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record indicates that the trial judge promised to conduct a hearing on
such a motion.
A hearing for the trial court to consider shock probation was
scheduled to occur on the 178th day after sentencing. For reasons not
well explained by the record, however, Applicant was removed from the
courtroom and returned to the jail before the shock probation hearing
could commence. Because Applicant’s adjudication-revocation attorney
had pressing time commitments in the interim, the hearing could not be
rescheduled until the 182nd day. At that time the parties realized that
the trial court’s jurisdiction had expired, and no hearing was held.
The parties now agree that Applicant has been deprived of the
opportunity to have the trial court consider whether to grant him shock
probation, and that he should obtain some form of “relief.” In its
recommended findings of fact and conclusions of law, the trial court
agrees that habeas corpus “relief” is appropriate. But neither the parties
nor the trial court have hinted at what form of relief would in fact be
appropriate. Regrettable as the circumstances might be, it is not entirely
clear to me that relief of any kind is appropriate. Whatever relief might
be called for, though, it would not be to grant Applicant a whole new
punishment hearing!
II. WHAT RELIEF?—IF ANY…
First, the record before us provides absolutely no justification for
overturning Applicant’s original guilty plea to the offense, entered back
in 2016. That plea was the product of a negotiation with the State
whereby Applicant received, insofar as this record reveals, the full
benefit of his bargain: six years’ deferred adjudication community
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supervision. There is no suggestion that Applicant’s plea on the question
of his guilt was rendered involuntary or otherwise invalid by reason of
the trial court’s inability, four years later, to impose shock probation
after adjudication. The Court therefore rightly declines to grant
Applicant an entirely new trial.
Nor is there any showing that Applicant’s plea of true to the
State’s motion to adjudicate was somehow invalid, such that there is any
cause to overturn it. Nothing in the pleadings or the record suggests that
Applicant’s open plea to the State’s motion was in any way contingent
on the trial court’s (apparently sua sponte) suggestion that it would be
open to considering shock probation in the case. So, his open plea was
not somehow rendered involuntary by the subsequent events. Granting
Applicant a new punishment hearing on his deferred-adjudication-
revocation proceeding also seems anomalous.
Should the Court nevertheless work around the trial court’s
statutorily limited “jurisdiction” to consider shock probation, 1 and
simply grant Applicant—out of time—a new opportunity for the hearing
that circumstances seem to have deprived him of? I even have my
concerns about that. The record reveals no reasonable expectation on
the part of Applicant to obtain shock probation, even if the trial court
did signal a willingness to consider it. Absent such an expectation, he
arguably lacks even a due process right to a hearing on the matter.
While the statute requires a hearing before shock probation may
be granted, it also expressly provides that shock probation may be

1 Under Article 42A.202(a), it is the “jurisdiction” of the trial court, not
just its authority, which “continues” for an extended period in order to make
shock probation possible. TEX. CODE CRIM. PROC. art. 42A.202(a).
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denied “without holding a hearing[.]” TEX. CODE CRIM. PROC. art.
42A.202(e). State law provides him no reasonable expectation of
obtaining shock probation, nor does it insulate him from being denied
shock probation without a hearing. It simply affords him the possibility
of shock probation, as a function of judicial discretion. And such an
attenuated interest is insufficient to trigger a procedural due process
right. See Ex parte Montgomery, 894 S.W.2d 324, 327 (Tex. Crim.
App.1995) (explaining that a defendant who asserts a violation of a due
process interest “must show an entitlement” to the interest he claims,
and that that interest must “amount to more than a ‘unilateral hope’”);
cf. Wolff v. McDonnell, 418 U.S. 539, 557 (1974) (recognizing, in the
prison setting, that “the State having created the right to good time itself
and recognizing that its deprivation is a sanction authorized for major
misconduct, the prisoner’s interest has real substance and is sufficiently
embraced within Fourteenth Amendment ‘liberty’ to entitle him to those
minimum procedures appropriate under the circumstances and required
by the Due Process Clause to insure that the state-created right is not
arbitrarily abrogated”). In short, it is not clear to me that Applicant has
a sufficient liberty interest in obtaining shock probation that even the
arbitrary deprivation of a hearing to inform the trial court’s discretion
will constitute a constitutional infraction. See, e.g., Lee v. State, 560
S.W.3d 768, 773 (Tex. App.—Eastland 2018, pet. ref’d) (“[A] defendant
placed on pretrial intervention does not have a liberty interest requiring
a hearing for due process purposes.”). The Court today grants relief
without ever addressing this threshold question.
The trial court has recommended that we conclude that depriving
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Applicant of a shock probation hearing constituted a violation of his due
process rights as recognized by this Court’s unpublished opinion in Ex
parte Balderas, No. AP-75,230, 2002 WL 2087015 (Tex. Crim. App. Aug.
31, 2005) (not designated for publication). There, on facts quite similar
to those before us today, the Court granted relief in the form of a whole
new trial (which mistake, thankfully, the Court does not repeat today).
One major difference between Balderas and Applicant’s case is that, in
Balderas, the convicting court indicated on the record that, given the
chance, it certainly would have granted the applicant shock probation.
We do not have that here. In any event, the Court did not explain its
rationale in granting relief in Balderas—any more than it explains itself
today. I afford the Court’s unpublished opinion in Balderas no
precedential value at all.
But, again, if the Court is determined to try to fix what
circumstances seem to have deprived Applicant of in this case, it should
not overturn his sentence. It should instead, at a minimum, endeavor to
fashion a remedy only to the specific deprivation Applicant has alleged
and proved. And if the Court deems that he has successfully established
his claim, perhaps the Court might rely instead on its precedents which
have suggested the authority to correct events that occur to the
detriment of a defendant because of a “breakdown in the system.” E.g.,
Ex parte Riley, 193 S.W.3d 900 (Tex. Crim. App. 2006). That, it seems to
me, is the only credible way to justify the Court acting, at all, to rescue
Applicant from the deprivation of a privilege that he has no right to. 2

2It also seems contrary to the evident boundaries established in the
statute the Applicant relies upon, which seems expressly to limit even the trial
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III. CONCLUSION
I am far from sure that Applicant has pled and proved facts which
entitle him to any relief at all. I am certain he has not pled or proved
facts entitling him to a whole new punishment hearing on the revocation
of his deferred adjudication. I respectfully dissent to the Court’s
disposition in this case.

FILED: June 28, 2023
PUBLISH

court’s discretion to act, unless such action is taken within “180 days from the
date the execution of the sentence actually begins.” TEX. CODE CRIM. PROC. art.
42A.202(a). Should we act to suspend the operation of provisions of the Code
of Criminal Procedure any old time a trial court expresses a desire not to be
cut off by a timeline that the legislature of our state has chosen to impose on
it? Rule 2 of our Texas Rules of Appellate Procedure seems to counsel a more
circumscribed approach. It provides: “On a party’s motion or on its own
initiative an appellate court may—to expedite a decision or for other good
cause—suspend a rule’s operation in a particular case and order a different
procedure; but a court must not construe this rule to suspend any provision in
the Code of Criminal Procedure.” TEX. R. APP. P. 2 (emphasis added).