Case Information
*1 IN THE
TENTH COURT OF APPEALS
No. 10-15-00263-CR
FERNANDO SMITH,
Appellant v.
THE STATE OF TEXAS,
Appellee From the 52nd District Court Coryell County, Texas
Trial Court No. 20141 O P I N I O N
Fernando Smith pled guilty to the offense of Assault by Occlusion. ENAL . § 22.01(a)(1), (b)(2)(B) (West 2011). The trial court deferred a finding of guilt
and placed Smith on deferred adjudication community supervision for five years. Ultimately, the trial court adjudicated Smith guilty and sentenced him to prison for five
years. Five months later, the trial court granted Smith’s motion for “shock probation” and returned Smith to community supervision for two years. After reviewing the record and case law, we dismiss this appeal for want of jurisdiction.
B ACKGROUND
After several modifications to Smith’s community supervision, including an extension of supervision for an extra year, the State filed a Motion to Adjudicate Guilt and Revoke Community Supervision. A contested hearing was held over a period of several days, and on May 29, 2015, the trial court found Smith violated three terms of his community supervision, adjudicated Smith guilty, and sentenced Smith to five years in prison. Smith timely filed a motion for new trial and a notice of appeal to this judgment. We received this notice of appeal on July 28, 2015 and docketed it as case number 10-15- 00263-CR.
Five months after Smith was sentenced, and three months after the appeal was docketed, the trial court, on Smith’s motion, placed Smith on community supervision, probated his five year sentence for two years, and continued the pervious terms and conditions including any monetary amounts owed. A new judgment was prepared and signed by the trial court on October 14, 2015. No new notice of appeal from this judgment was filed.
This case has been pending for quite some time. Briefing was completed and the appeal was placed at issue in late May of 2016. We note that in his appellate brief, Smith *3 does not contest his conviction. Rather, he contests the amount of restitution ordered in the conditions of community supervision imposed by the trial court’s October 2015 shock probation judgment and two alleged typographical “errors” in that same judgment. This is not the judgment from which Smith appealed.
N OTICE OF PPEAL
We questioned our jurisdiction because no new notice of appeal of the “shock
probation” judgment was filed. In response, Smith argues that he was not required to
file a notice of appeal of the shock probation judgment citing
Perez v. State
and a later
case,
Dodson v. State
.
See Perez v. State
,
In
Perez
, Perez was convicted and sentenced to 10 years in prison. After the trial
court suspended the further imposition of the sentence and placed him on community
supervision, Perez attempted to appeal one of those terms of community supervision.
On appeal, the court of appeals held that if it were considering the appeal as one from
the judgment of conviction, it was untimely.
Perez
,
Smith further argues that his notice of appeal should be considered a premature
notice of appeal. EX R. A PP . P. 27.1(b). He contends that a prematurely filed notice
of appeal could be one that is filed between the conviction and the suspension of the
sentence. However, a prematurely filed notice of appeal has been held to be one that is
filed in the time period after the jury's verdict and before sentence is imposed.
Franks v.
State
,
The State argues that regardless of whether Smith’s notice of appeal is timely as to
the imposition of shock probation, we do not have subject-matter jurisdiction of this
appeal. The standard to determine whether an appellate court has jurisdiction to hear
and determine a case is not whether the appeal is precluded by law, but whether the
appeal is authorized by law.
Blanton v. State
,
The cases the State relies on to assert that no appeal may be taken from shock probation do not apply to the situation presented in this appeal. In those cases, it was the decision to grant or deny shock probation or the decision to amend the conditions of shock probation that was the subject of the appeal or an issue on appeal. Those actions of the trial court are not ones for which the statute authorizes an appeal. That does not mean, however, the actual judgment rendered by the trial court after granting a motion *6 for shock probation cannot be appealed. It is a criminal judgment; and like any other criminal judgment which finds the defendant guilty and imposes a sentence, it can be appealed. C C RIM ROC . art. 44.02 (West 2006); T EX . R. A PP . P. 26.2(a).
A defendant has no way to determine if a motion for shock probation will be granted. Thus, the defendant necessarily must be cautious and file a notice of appeal if the defendant has a complaint about the trial court’s first/original judgment. In this case, that is exactly what Smith did by filing a notice of appeal of the May 29, 2015 judgment.
If a defendant’s motion for shock probation is granted, as in this case, and it results in a new judgment and conditions of community supervision, the appeal of the first/original judgment is moot. Any complaint about the shock probation judgment will be the subject of an appeal about that judgment. But to complain about that judgment, a defendant must file a notice of appeal directed at the new judgment.
In this proceeding, Smith took the cautious route and filed a notice of appeal on the May 29, 2015 judgment. And when his motion for shock probation was granted and a new judgment was rendered on October 14, 2015, the appeal of the May 29, 2015 judgment was rendered moot. But Smith failed to file a notice of appeal to complain about the October 14, 2015 judgment. As is evident from the briefs already on file, it is the October 14, 2015 judgment about which Smith expressly complains—specifically the amount of restitution ordered and whether the judgment contains some typographical errors. ONCLUSION
Smith’s appeal of the May 29, 2015 judgment is dismissed because that judgment *7 was rendered moot by the October 14, 2015 judgment. We have no notice of appeal from the October 14, 2015 judgment, and the time to file a notice of appeal has long since passed. Accordingly, we have no jurisdiction of the complaints raised by Smith, and this appeal is dismissed. TOM GRAY
Chief Justice
Before Chief Justice Gray,
Justice Davis, and
Justice Scoggins
Appeal dismissed
Motion dismissed as moot
Opinion delivered and filed April 26, 2017
Publish
[CR25]
Notes
[1] This action is termed “shock probation” and is authorized by Article 42.12, sec. 6 of the Texas Code of
Criminal Procedure. This case is, however, the only case we have been able to find in which there was
effectively a new sentencing hearing and an entirely new and complete judgment signed by the trial court
rather than merely an order that suspended the sentence set out in the prior judgment and enunciated the
conditions of community supervision. This makes the issues cleaner and easier to address and very
different from the issue as addressed in
Shortt v. State,
No. 05-13-01639-CR,
[2] In conjunction with filing its brief, the State filed a motion to dismiss asserting we lack jurisdiction to consider Smith’s appeal, and Smith responded to the motion. We have considered both in resolving this appeal.
[3] Because we dismissed this appeal on grounds other than those raised by the State in its motion to dismiss, the State’s motion to dismiss is dismissed as moot .