How should Texas Constitution, Article I, Section 11b Be Read with Federal Due Process Standard?

Ex parte Heath Shires, No. 02-16-00348-CR, (Dec. 29, 2016), a ruling on a pre-trial writ of habeas corpus by Fort Worth's Second Court of Appeals, seems to me to be a good candidate to get to the Court of Criminal Appeals. The appellate panel is all-female: Justice Lee Ann Dauphinot, Justice Lee Gabriel, and Justice Bonnie Sudderth. Justice Sudderth writes the majority opinion. Justice Dauphinot dissented.
Shires is indicted on four sex offenses against a minor October 14, 2014. Two of his bail conditions are that he is not supposed to drink alcohol nor is he supposed to commit another offense. He is arrested for felony DWI September 4, 2016. Two of his bond conditions are that he is not supposed to drink alcohol and that he is not supposed to drive any vehicle that does not have an alcohol interlock. On September 6, 2016, State says Shires's bond for the four earlier offenses is too low. 
There was a hearing on raising the bond amount on the old charges Sept. 6, 2016. the parties stipulated that Shires had violated the bond conditions, but Shires argued that his bond should not be revoked, but that an alcohol monitor should have been attached to him. He also argued that Tex. Const. art. I, sec 11b, violated the 14th amendment of the U.S. Constitution. The trial court rejected the challenge and allowed the hearing on it to make a record for the habeas writ. 
Shires challenges sec 11b's federal constitutionality as applied to him. The majority rejects Shires's claim that federal precedent required that every trial court to apply a clear and convincing evidence standard, nor requires each trial court to consider
if additional bond conditions may adequately assure the safety of the community
or the victim. 
Justice Dauphinot submitted that 11b had to be applied in light of the federal due process standard, and that the appeals court should have reversed and remanded to the trial court with instructions as to what federal due process precisely required (She appeared to me, to think that Shires, at least in part, had the right idea.
The State has the burden of proving the allegations of its motion. The trial
court must be convinced by the evidence that the State has borne its burden.
The issue is not whether some appellate court can, by speculation and reading
between the lines, cobble together enough possibilities to support the State’s
allegations and to support a determination that the detainee must not be released
under any conditions because no conditions exist that will reasonably protect the
public. The record must reflect evidence from which the trial court can make the
legally mandated determinations, and the trial court must actually make the

necessary determinations.

Justice Dauphinot aged out of her position at the end of 2016 and has had to retire. I can't really imagine her getting that old; she always seemed to me to be younger in spirit than people many years her junior. For what it's worth, I liked her and am going to miss her.

Of Texas Community Supervision, a Motion for New Trial and Passing out in the Whataburger Drivethrough

Two of the things your humble correspondent loves are:

1. The Effect of a Motion for New Trial on the Finality of a Judgment; and
2. The food at Whataburger, which really is a Texas Treasure.

This case has both.

Jerry Paul Lundgren had been convicted of driving while intoxicated in 2009.  On January 7, 2011, his case was plea-bargained in a Wise County Court at Law at the county seat, Decatur. He was sentenced to 365 days confinement, suspended for 18 months while he was on community supervision (adult probation). Two conditions of the probation were that Lundgren was not to commit any new offenses nor to drink any alcohol. The court said Lundgren's probation was to start that day-- January 7, 2011-- and it was quite clear from what Lundgren was told from the bench and in his plea paperwork that he was giving up his right to appeal.

January 14, 2011, Lundgren, like many Texans, heard the siren song of Whataburger, and unfortunately for him, he passed out in a silver truck in the drivethrough lane, flunked a field sobriety test and found himself being escorted back to the jail for DWI.

On January 19, 2011, he filed a notice of appeal of the January 7 judgment. On January 28, 2011, he filed a motion for new trial, which, under Texas Rule of Appellate Procedure 21.8(c,) was overruled by operation of law on March 23, 2011. On February 18, 2011, the State filed a motion to revoke his probation because he had committed a new offense and had drunk alcohol. On March 3, 2011, the Second Court of Appeals in Fort Worth dismissed his appeal for lack of jurisdiction (Remember, on January 7, he had given up his right to appeal.). Fort Worth issued its mandate in the case May 2, 2011.

June 22, 2011 the trial court entered a “Post Mandate Enforcement of Prior Judgment of Conviction Sentence Suspended,” starting the sentence that same day. It correct the judgment two days later, to add a driver's license suspension that had been in the original January 7 judgment, but which had been left out of the June 22 judgment. It, too, said that the new sentence started June 22. On July 13, 2011, Lundgren filed a motion to quash the State's motion to revoke because the January 7 judgment had not been final on January 14. He also moved to suppress the evidence against him from the Whataburger incident (It is much easier to arrest a person and get evidence against such a person if the person is on community supervision. Such a person has given up privacy protections that ordinary people have not given up.). The trial court denied the motion to suppress, found that Lundgren had violated his community supervision conditions, revoked his community supervision, and sentenced him 300 days in jail. Lundgren appealed.

The panel in this case was Justices Lee Ann Dauphinot, Sue Walker, and Lee Gabriel. Gabriel wrote an opinion that Walker joined. Dauphinot dissented. The majority held that it was absurd that a motion for new trial could retroactively eliminate probation conditions, and, thereby, probation violations. Dauphinot argues that there are many good reasons why a person entering into a no-appeal plea bargain might want to file a motion for new trial, and that Milburn v. State, 201 S.W.3d 749 (Tex. Crim. App. 2006) stands for the proposition that a community supervision judgment could be vitiated by a motion for new trial. She also pointed out that the trial court could have made Lundgren waive his right to a motion for new trial or the judge could have put Lundgren on personal bond with the probation conditions being the bond conditions. That would have worked no matter what the new trial/appellate status of the case would have been.

I would hope that court of criminal appeals would take this case up, but if I had to bet, I don't think they will-- too much of a hot potato, being opposed by Mothers Against Drunk Drivers, etc.

Thanks to the estimable Jim Skelton for hipping me to this case.His Criminal Law Institute is a great source of learning for Texas criminal defense lawyers, and a great value.
Lundgren v. State, ___ S.W.3d ___ (No. 02-12-00085-CR, Aug 22, 2013) (Walker and Gabriel, JJ.) (no pet. h.) 
Lundgren v. State, ___ S.W.3d ___ (No. 02-12-00085-CR, Aug 22, 2013) (Dauphinot, J., dissenting) (no pet. h.)