518 S.W.3d 641
Tex. App.2017Background
- Fernando Smith pled guilty to Assault by Occlusion; the trial court deferred a finding of guilt and placed him on five years deferred-adjudication community supervision.
- The State later filed a Motion to Adjudicate; after a contested hearing the trial court adjudicated guilt and sentenced Smith to five years imprisonment on May 29, 2015.
- Smith filed a timely notice of appeal from the May 29, 2015 judgment and a motion for new trial; the appeal was docketed as case No. 10-15-00263-CR.
- While the appeal was pending, the trial court granted Smith’s motion for “shock probation,” probated the five-year sentence, and entered a new judgment on October 14, 2015 placing Smith on community supervision with conditions (including restitution).
- Smith did not file a new notice of appeal from the October 14, 2015 shock-probation judgment; his appellate briefs challenge the October 14 judgment’s restitution amount and typographical errors rather than the original May 29 judgment.
- The court concluded the May 29, 2015 appeal was moot once the October 14 judgment was entered and dismissed the appeal for lack of jurisdiction because there was no timely notice of appeal from the October 14 judgment.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether a notice of appeal from the original adjudication covers complaints about a subsequently rendered shock-probation judgment | Smith: original notice should be treated as timely/premature and sufficient to challenge the later shock-probation judgment | State: appeal from the original adjudication is moot once shock-probation judgment is entered; must file new notice from the new judgment | The court held the original appeal was moot after the new judgment; Smith’s failure to file a notice from the October 14 judgment deprives the court of jurisdiction |
| Whether courts have jurisdiction to hear appeals contesting an order granting shock probation or its conditions | Smith relied on cases suggesting appeals addressing shock probation timing may be untimely rather than jurisdictionally barred | State relied on precedent saying there is no statutory authority to appeal orders granting or denying shock probation or to challenge amendment of its conditions | The court distinguished prior holdings: while orders granting/denying shock probation are not independently appealable under the shock-probation statute, a later criminal judgment entered after granting shock probation is appealable—but only if appealed from that judgment. Here no such appeal was filed |
| Whether a prematurely filed notice of appeal (filed after conviction but before suspension) can be treated as effective for a later judgment suspending sentence | Smith: his notice was premature and should be effective as to later judgment | State: Rule 27.1(b) applies narrowly; premature notices effective only if filed after verdict and before sentencing | Court: refused Smith’s broad reading; a prematurely filed notice under Rule 27.1(b) does not cover the situation here |
| Whether the appellate court has subject-matter jurisdiction absent a timely notice of appeal from the operative judgment | Smith argued procedural doctrines might save his appeal | State argued lack of statutory authorization and failure to perfect appeal deprives the court of jurisdiction | Court: no jurisdiction over Smith’s challenges to the October 14 judgment because no timely notice of appeal was filed; appeal dismissed |
Key Cases Cited
- Perez v. State, 938 S.W.2d 761 (Tex. App.—Austin 1997) (holding appeal timing runs from imposition of sentence where shock probation follows sentence)
- Dodson v. State, 988 S.W.2d 833 (Tex. App.—San Antonio 1999) (following Perez on timeliness issues related to shock probation)
- Blanton v. State, 369 S.W.3d 894 (Tex. Crim. App. 2012) (jurisdictional inquiry focuses on whether appeal is authorized by law)
- Abbott v. State, 271 S.W.3d 694 (Tex. Crim. App. 2008) (same standard for appellate jurisdiction)
- Franks v. State, 219 S.W.3d 494 (Tex. App.—Austin 2007) (definition and scope of a prematurely filed notice of appeal under Rule 27.1(b))
- Houlihan v. State, 579 S.W.2d 213 (Tex. Crim. App. 1979) (dismissing appeal of denial of shock probation)