Shortt v. State, 539 S.W.3d 321

Background

Appellant pleaded guilty to burglary and received deferred-adjudication community supervision with restitution as a condition.
The State later moved to revoke; appellant pleaded true, the court adjudicated guilt and sentenced him to ten years without orally ordering restitution as part of the sentence.
Five months later the trial court suspended execution of the sentence and granted "shock" community supervision, again ordering restitution.
Appellant appealed only the later order granting shock community supervision, arguing re-imposition of restitution violated double jeopardy; the State agreed the restitution condition was unauthorized but contested double jeopardy.
The court of appeals dismissed the appeal for lack of jurisdiction; the Texas Court of Criminal Appeals granted review to decide whether appeals from orders granting shock community supervision are authorized under Art. 42.12, § 23(b).
The Court held that § 23(b) authorizes defendants to appeal orders granting shock community supervision and remanded for further proceedings; a dissent argued § 23(b) does not reach such orders and that appeals from orders are generally authorized only by specific statutes.

Issues

Issue	Appellant's Argument	State's Argument	Held
Whether Art. 42.12 § 23(b) authorizes an appeal from an order granting "shock" community supervision	§ 23(b) entitles a defendant to appeal the conditions imposed when placed on community supervision (including shock)	§ 23(b) was intended to allow appeal only when supervision is imposed at judgment; shock supervision occurs later and is not covered	The Court: § 23(b) authorizes appeals when a defendant is placed on community supervision whether at judgment or later by shock supervision
Whether an appeal from a shock-supervision order is independent of any earlier appeal from the original judgment	Appellant sought to challenge the shock order condition directly (restitution)	State argued double jeopardy not implicated but agreed restitution was unauthorized; procedural timing issues may limit challenges to earlier judgment	The Court: appeal from shock order is permissible; questions about interaction with earlier appeals and what issues may be raised (procedural default) are left for another day
Whether conditions of community supervision (including restitution) can be reviewed on appeal from shock orders	Appellant: re-imposition of restitution impermissibly punishes twice (double jeopardy)	State: restitution unauthorized under shock supervision statute but double jeopardy not necessarily implicated	The Court: appellate courts have jurisdiction to consider challenges to conditions imposed in a shock-supervision order; merits to be decided on remand
Whether allowing such appeals creates anomalous timing/timetable problems	Appellant: not raised as controlling here	State/dissent: allowing appeals may supersede prior notices and create conflicting appellate timetables; statute should be read narrowly	The Court: recognizes anomalies but opts for a consistent construction that treats placement on community supervision (imposition or execution suspended) as triggering § 23(b); procedural consequences reserved for future cases

Key Cases Cited

Green v. State, 706 S.W.2d 653 (Tex. Crim. App. 1986) (discussion whether probation is "punishment" and appeals of conditions of probation)
O'Hara v. State, 626 S.W.2d 32 (Tex. Crim. App. 1981) (distinguishing suspension of imposition from suspension of execution in shock probation)
State v. Robinson, 498 S.W.3d 914 (Tex. Crim. App. 2016) (State may appeal an order granting shock community supervision as an order that modifies a judgment)
Houlihan v. State, 579 S.W.2d 213 (Tex. Crim. App. 1979) (no right to appeal denial of shock community supervision)
Flores v. State, 513 S.W.2d 66 (Tex. Crim. App. 1974) (appeals from judgments imposing probation addressing conditions)
Morales v. State, 541 S.W.2d 443 (Tex. Crim. App. 1976) (review and relief for challenged probation conditions)
Cartwright v. State, 605 S.W.2d 287 (Tex. Crim. App. 1980) (addressing restitution assessment as condition of probation)
Ex parte Clore, 690 S.W.2d 899 (Tex. Crim. App. 1985) (habeas not proper remedy for challenging probation condition; appeal is appropriate)
Johnson v. State, 286 S.W.3d 346 (Tex. Crim. App. 2009) (entertaining merits of challenges to community supervision conditions on appeal)
Speth v. State, 6 S.W.3d 530 (Tex. Crim. App. 1999) (procedural requirement to object to probation condition in trial court to complain on appeal)
Blanton v. State, 369 S.W.3d 894 (Tex. Crim. App. 2012) (discussing appellate limitations on complaining about earlier proceedings in later appeals)
Basaldua v. State, 558 S.W.2d 2 (Tex. Crim. App. 1977) (holding no jurisdiction to hear appeal from order altering probationary conditions)