the 52nd District Court Coryell County, Texas Trial Court No.
Chief Justice Gray, Justice Davis, and Justice Scoggins.
GRAY Chief Justice.
Smith pled guilty to the offense of Assault by Occlusion.
See Tex. Penal Code Ann. § 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
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
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.
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 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.
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, 938 S.W.2d 761, 763
(Tex. App.-Austin 1997, pet. ref'd); see also Dodson
v. State, 988 S.W.2d 833, 834 (Tex. App.-San Antonio
1999, no pet.). In both cases, after determining the courts
did not have jurisdiction of an order granting or denying
shock probation, the courts determined the notices of appeal
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, 938
S.W.2d at 763. It reasoned that the conditions of community
supervision were not a necessary part of the judgment in the
case because section 6(a) of article 42.12 of the Texas Code
of Criminal Procedure (the shock probation statute) first
required the trial court to impose a sentence before it could
consider a motion to suspend the execution of the sentence.
Id. Thus, it concluded, the time to perfect the
appeal ran from the date the sentence was imposed, not from
the date the defendant was informed of the conditions of
community supervision. The court in Dodson followed
Perez. We have not found another case that has
followed either of these cases for this proposition.
further argues that his notice of appeal should be considered
a premature notice of appeal. See Tex. R. App. 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, 219 S.W.3d 494, 497
(Tex. App.-Austin 2007, pet. ref'd). This holding is
consistent with the Rules of Appellate Procedure.
Tex.R.App.P. 27.1(b) ("…a prematurely filed
notice of appeal is effective and deemed filed on the same
day, but after, sentence is imposed or suspended in open
court…."). We are not inclined to interpret the
rule as broadly as Smith argues.
of Shock Probation and Related Judgment
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,
369 S.W.3d 894, 902 (Tex. Crim. App. 2012); Abbott v.
State, 271 S.W.3d 694, 696-97 (Tex. Crim. App. 2008).
Thus, the State's argument is that because there is no
statutory authority which authorizes an appeal from the
imposition of shock probation pursuant to article 42.12,
section 6 of the Texas Code of Criminal Procedure, we must
dismiss the appeal. See Tex. Code Crim. Proc. Ann.
art. 42.12, § 6 (West 2006); Perez v. State,
938 S.W.2d 761, 762-63 (Tex. App.-Austin 1997, pet.
ref'd) (dismissing appeal for lack of jurisdiction
because defendant cannot appeal an order granting shock
probation); Pippin v. State, 271 S.W.3d 861 (Tex.
App.-Amarillo 2008, no pet.) (no jurisdiction to contest
conditions of order granting shock probation or denial of);
see also Houlihan v. State, 579 S.W.2d 213 (Tex.
Crim. App. 1979) (dismissing appeal of order denying motion
for shock probation); Roberts v. State, No.
04-10-00558-CR, 2010 Tex.App. LEXIS 8940 (Tex. App.-San
Antonio Nov. 10, 2010, pet. ref'd) (not ...