OPINION
Aрpeal is taken from a probation revocation. Appellant was convicted of driving while intoxicаted in cause number 298,262 in the County Court at Law Number 2 of Bexar County on December 22, 1982. Imposition of sentence was susрended and appellant was placed on probation for two years. Among the conditions of prоbation was a requirement that appellant “commit no offense against the laws of this or any other Statе or the United States.”
A motion to revoke probation was filed by the Bexar County District Attorney on April 27, 1983, alleging that appellant had violated probationary condition number 1 in that on or about the 5th day of March, 1983, apрellant had operated a motor vehicle upon a public road while under the influence of intoxicating liquor in Live Oak County, Texas.
The revocation hearing was conducted on July 21,1983 and the State’s sole proоf was in the form of stipulated evidence. The evidence consisted of a certified copy of an order entered by the County Court of Live Oak County on May 24, 1983, in cause number 7992 indicating that appellant had been grantеd deferred adjudication in a proceeding arising from a driving while intoxicated violation.
Solely upon the stiрulated evidence the trial court revoked probation and sentenced appellant. Oral notiсe of appeal was given in open court.
On August 19, 1983, appellant filed both a motion for new trial and a writtеn notice *402 of appeal. The motion for new trial was overruled on August 26, 1983. No new notice of appеal was given.
Appellant urges that the trial court abused its discretion in revoking probation solely upon the stiрulated evidence introduced at the hearing. The State, in its brief, recognizes the validity of appellant’s сontention pointing out that an order granting deferred adjudication is not a final conviction such as will support an order revoking probation.
See Harris v. State,
The State also correctly recognizes that the order entered in cause number 7992 does not spell out when the offense forming the basis of the deferred adjudication was committеd. Therefore, it is impossible to ascertain that the offense was committed subsequent to the granting of probаtion in cause number 298,262. The State thus admits that the trial court abused its discretion in revoking probation based upon thе meager proof offered.
However, the State argues that this Court may not reach the merits of the aрpeal inasmuch as appellate jurisdiction of this Court never properly attached.
The State рoints out that both of the notices of appeal given by appellant were premature.
TEX.CODE CRIM.PROC.ANN. art. 44.-08 requirеs that notice of appeal be given within fifteen days after the defendant’s motion for new trial is overruled or within fifteen days after sentencing.
TEX.CODE CRIM.PROC.ANN. art. 40.-05 provides that a motion for new trial may be filed prior to or within thirty days after sеntence is imposed or suspended in open court.
Appellant’s motion for new trial was filed within thirty days after sеntence was imposed and was therefore timely filed. Since the written as well as the oral notice of appeal were given and filed prior to a ruling upon the motion for new trial, the State argues, the noticеs were premature.
Gordon v. State,
Following the enactment of the Texas Rules of Post-Trial and Appellate Procedure in criminal cases which became effective September 1, 1981, several courts of appeal have drawn upon TEX.R.CRIM. APP.P. 211 and TEX.R.CIV.P. 306c to construe a premature notice of appeal as being timely filed.
TEX.R.CRIM.APP.P. 211 provides:
Where not inconsistent with the Code of Criminal Procedure and these rules, as they now exist or may hereafter exist, thе Rules of Civil Procedure shall govern proceedings in the courts of appeals in criminal cases.
TEX.R.CIV.P. 306c provides:
[n]o nоtice of appeal ... shall be held ineffective because prematurely filed; and every such ... notiсe of appeal ... shall be deemed to have been filed on the date of but subsequent to ... the date of the overruling of motion for new trial, if such motion is filed.
We agree with the holdings of our brethren in
Johnson v. State,
We recognize that the question of premature notices of apрeal as affected by the new Rules of Post-Trial and Appellate Procedure has not been directly аddressed by the Court of Criminal Appeals and that our holding is contrary to past precedents of that Court. Nevertheless we read TEX.R. CRIM.APP.P. 211 to apply where not inconsistent with the Code of Criminal Procedure and the rules of pоst-trial and appel *403 late procedure and we find no conflict. We believe that rule 211 was intended to mаke appellate procedure uniform in the courts of appeal under their new expanded jurisdiсtion. When viewed from this perspective we are not persuaded that prior holdings of the Court of Criminal Appeals on the question now before us mandate continued application of reasoning rendered inappropriate by the very purpose of the rule.
We hold that the appeal is properly before us for review and in keeping with our expressed opinion on the merits of the appeal we reverse the judgment of the trial court and remand the cause.
Shaw v. State,