             IN THE COURT OF CRIMINAL APPEALS
                         OF TEXAS
                                         NO. PD-0597-15

                       BERNARD WINFIELD SHORTT, Appellant

                                                  v.

                                    THE STATE OF TEXAS

           ON APPELLANT’S PETITION FOR DISCRETIONARY REVIEW
                   FROM THE FIFTH COURT OF APPEALS
                            DALLAS COUNTY

      Y EARY, J., delivered the opinion of the Court A LCALA, R ICHARDSON, N EWELL,
and W ALKER, JJ., joined. K ELLER, P.J., filed a dissenting opinion in which K EASLER,
H ERVEY, and K EEL, JJ., joined.

                                           OPINION

       Appellant attempted to appeal from an order granting him so-called “shock”

community supervision under former Article 42.12, Section 6(a) of the Code of Criminal

Procedure.1 T EX. C ODE C RIM. P ROC. art. 42.12, § 6(a). In that attempted appeal, he sought


       1
         Under Section 6(a) of Article 42.12, a trial court’s jurisdiction “continues for 180 days from
the date the execution of the sentence actually begins[,]” so that it may consider the option of
suspending that already-begun sentence and belatedly placing the defendant on community
supervision—“or ‘shock probation,’ as it is commonly called.” George E. Dix & John M.
Schmolesky, 43A TEXAS PRACTICE : CRIMINAL PRACTICE AND PROCEDURE § 47:36, p. 314 (3d ed.
                                                                                 SHORTT — 2

to challenge a condition of community supervision imposed in the order that required him

to make restitution payments. Though the State agreed that the trial court’s order was

erroneous in this regard, the court of appeals dismissed the appeal for lack of jurisdiction. It

held, in an unpublished opinion, that “there is no statutory authority which confers

jurisdiction upon an appellate court to consider an appeal from an order imposing shock

probation[.]” Shortt v. State, No. 05-13-01639-CR, 2015 WL 2250152, at *2 (Tex.

App.—Dallas del. May 12, 2015) (mem. op., not designated for publication). We granted

Appellant’s petition for discretionary review in order to address whether an appellant may

appeal an order granting “shock” community supervision.

                                               I.

       Indicted for burglary of a habitation, Appellant pled guilty in exchange for a

recommendation of deferred adjudication. As a condition of his deferred adjudication

community supervision, he was ordered to pay restitution. Later, the State moved to revoke




2011). “The original idea of shock community supervision was that there are some defendants who
would be only marginal risks if placed on regular community supervision or deferred adjudication,
but who might be ‘shocked’ into becoming better risks if they experience the service of a jail or
penitentiary sentence because they would then know what the alternative was to successful service
of the community supervision term.” Id.

        We continue our convention of using the terms “community supervision” and “probation”
interchangeably. See Speth v. State, 6 S.W.3d 530, 532 n.3 (Tex. Crim. App. 1999) (“We use the
terms probation and community supervision interchangeably in this opinion.”). We also note that
Article 42.12 has been repealed and replaced by Chapter 42A of the Code of Criminal Procedure.
See Moore v. State, 520 S.W.3d 906, 908 n.3 (Tex. Crim. App. 2017) (noting that Article 42.12 was
repealed by Acts 2015, 84th Leg., ch. 770, p. 2321, eff. Jan. 1, 2017, but that the Legislature
expressly declared that no substantive change was intended by this re-codification).
                                                                                  SHORTT — 3

his deferred adjudication community supervision. Appellant pled true to the revocation

allegations. The trial court adjudicated his guilt and sentenced him to confinement for ten

years, but did not orally pronounce that he should pay restitution as part of the punishment

assessed. Five months later, the trial court entered an order suspending the execution of

Appellant’s sentence and placing him back on community supervision. As part of that order,

the trial court once again required Appellant to pay restitution. It is from that order that

Appellant attempted to appeal, arguing in a single point of error that the re-imposition of

restitution caused him to be twice punished for the same offense in violation of the

constitutional prohibition against double jeopardy. The State disagreed that double jeopardy

was implicated, but it did agree that the order was faulty in that the trial court lacked statutory

authority to impose restitution as a condition of Appellant’s “shock” community supervision.

The court of appeals did not address any of these contentions, but instead dismissed the

appeal for want of jurisdiction. Id.

       A majority of the Court has concluded, and we now hold, that the courts of appeals

do have the authority to entertain a defendant’s appeal from an order granting “shock”

community supervision, pursuant to Article 42.12, Section 23(b), of the Code of Criminal

Procedure. T EX. C ODE C RIM. P ROC. art. 42.12, § 23(b).

                                                II.

       The issue in this case boils down to whether Article 42.12, Section 23(b), authorizes

a defendant to appeal from an order granting so-called “shock” community supervision. T EX.
                                                                                  SHORTT — 4

C ODE C RIM. P ROC. art. 42.12, § 23(b). Section 23(b), which provides the authority for a

defendant to appeal from his conviction and sentence at the time he is placed on community

supervision, was contained in the 1965 Code of Criminal Procedure from its inception. As

originally enacted, that provision read: “The right of the probationer to appeal to the Court

of Criminal Appeals for a review of the trial and conviction, as provided by law, shall be

accorded the probationer at the time he is placed on probation.” Acts 1965, 59th Leg., vol.

2, ch. 722, § 1, p. 492, eff. Jan. 1, 1966. At that time, however, there was no such thing as

“shock” community supervision. The statute authorizing “shock” community supervision was

not enacted until twelve years later, with the adoption of what was Article 42.12, Section 3e

(later Section 6). Acts 1977, 65th Leg., ch. 306, § 1, p. 821, eff. Aug. 29, 1977.2

       In its entirety, the relevant sentence from Article 42.12, Section 23(b), now reads:

       “The right of the defendant to appeal for a review of the conviction and
       punishment, as provided by law, shall be accorded the defendant at the time he
       is placed on community supervision.”

T EX. C ODE C RIM. P ROC. art. 42.12, § 23(b). Notice that the provision no longer talks about

the right of “the probationer,” but the right of “the defendant.” Notice also that while the

provision formerly provided for appellate review of the “trial and conviction,” it now

provides for appellate review of “the conviction and punishment.” As originally worded,

therefore, it seems to have been intended to empower a defendant placed on community


       2
         Effective 2017, the Legislature has re-codified former Article 42.12. See Acts 2015, 84th
Leg., ch. 770, § 1.01, p. 2321, eff. January 1, 2017. The statutory authorization for “shock”
community supervision in felony cases is presently found in Article 42A.202 of the Code of Criminal
Procedure. TEX . CODE CRIM . PROC. art. 42A.202.
                                                                               SHORTT — 5

supervision to appeal his trial and conviction only, and to do so immediately rather than

having to wait until such time as his probation might be revoked (if ever). We have continued

to construe the provision in this way with respect to ordinary community supervision—of

course, allowing review under the amended version of the “punishment” as well.

       “Community supervision” is statutorily the same whether it is granted as a part of the

original judgment, under Sections 3 or 4 of Article 42.12 (ordinary community supervision),

or is granted only later, under Section 6, after the execution of sentence has already begun

(“shock” community supervision). T EX. C ODE C RIM. P ROC. art. 42.12, §§ 3, 4 & 6. Either

way, it is simply “the placement of a defendant by a court under a continuum of programs

and sanctions, with conditions imposed by the court for a specified period during which . .

. a sentence of imprisonment or confinement, imprisonment and fine, or confinement and

fine, is probated and the imposition of sentence is suspended in whole or in part.” T EX. C ODE

C RIM. P ROC. art. 42.12, § 2(2)(B). The Texas Constitution authorizes the judiciary “to

suspend the imposition or execution of sentence,” even “after conviction,” by virtue of

Article IV, Section 11A. T EX. C ONST. art. IV, § 11A. The difference is that, when community

supervision is granted as part of the original proceeding, under Sections 3(a) or 4(a), then it

is the “imposition” of sentence that is suspended. If community supervision is granted at this

time, it must be reflected in the written judgment. See T EX. C ODE C RIM. P ROC. art. 42.01, §

1(10) (“The judgment shall reflect: . . . [i]n the event of conviction where the imposition of

sentence is suspended and the defendant is placed on community supervision, setting forth
                                                                                    SHORTT — 6

the punishment assessed, the length of community supervision, and the conditions of

community supervision[.]”).

       On the other hand, “shock” community supervision, granted under the auspices of

Section 6 of Article 42.12, suspends the “execution” rather than the “imposition” of

sentence.3 Moreover, “shock” community supervision that is imposed at that later time will

not be reflected in the written judgment at all. Section 6 contemplates that “shock”

community supervision will be granted pursuant to an order on a motion, brought by either

party or by the trial court sua sponte, well after the written judgment has been entered. See

T EX. C ODE C RIM. P ROC. art. 42.12, § 6(c) (describing circumstances under which a trial court

may deny or grant the motion for suspension of further execution of sentence). The statutory

scheme does not contemplate that the trial court enter a new judgment, but simply that it

grant or deny the motion pursuant to its continuing jurisdiction to consider, and if

appropriate, grant, community supervision. The question thus becomes whether, pursuant to

Article 42.12, Section 23(b), a defendant may appeal a ruling that grants that motion.4

       3
          See O’Hara v. State, 626 S.W.2d 32, 34-35 (Tex. Crim. App. 1981) (distinguishing regular
probation, which suspends “imposition” of sentence, from shock probation, which suspends further
“execution” of sentence); State v. Robinson, 498 S.W.3d 914, 919 (Tex. Crim. App. 2016) (“When
a trial court grants shock probation under the provisions of Article 42.12 § 6(a), it suspends the
execution, rather than the imposition, of the sentence.”).
       4
         We have already held that a defendant may not appeal the denial of his motion for “shock”
community supervision. Houlihan v. State, 579 S.W.2d 213, 216 (Tex. Crim. App. 1979). Of course,
such a ruling does not “place[ the defendant] on community supervision[,]” so it does not fall under
the purview of Article 42.12, Section 23(b). But whether an order granting “shock” community
supervision is appealable is another matter. In State v. Robinson, 498 S.W.3d at 918, we
unanimously held that the State was entitled to appeal from an order that grants a motion for “shock”
community supervision. In so holding, we relied upon Article 44.01(a)(2) of the Code of Criminal
                                                                                     SHORTT — 7

       Although the language of Section 23(b) was not originally drafted to cover a “shock”

community supervision order (since such orders were not yet authorized by statute when

Section 23(b) was drafted), the language of Section 23(b) seems manifestly broad enough to

accommodate such an order. We have long entertained claims that the trial court imposed

illegal conditions of community supervision brought by defendants who have appealed from

a judgment placing them on regular community supervision prior to imposition of sentence

(presumably under the aegis of Section 23(b) and its predecessors).5 This is true even though

it must be conceded that Section 23(b) does not explicitly mention “probation” or

“community supervision” in its statement of what can be appealed (“the conviction and

punishment”), and even though we once said (albeit in dicta) that when Article 42.12 speaks

of “punishment” in general, it does not necessarily embrace “probation.” See Green v. State,


Procedure, which permits the State to appeal from “an order of a court in a criminal case if the order
. . . modifies a judgment[.]” TEX . CODE CRIM . PROC. art. 44.01(a)(2). We essentially held that an
order granting “shock” community supervision constitutes “an order” which “modifies a
judgment[,]” thus authorizing the State to appeal. Id. Whether a defendant may similarly appeal from
such an order seems to be a function of Article 42.12, Section 23(b).
       5
         See, e.g., Flores v. State, 513 S.W.2d 66 (Tex. Crim. App. 1974) (in an appeal from a
judgment imposing probation, several claims exclusively challenging conditions of probation were
rejected on the merits); Morales v. State, 541 S.W.2d 443 (Tex. Crim. App. 1976) (sustaining
probationer’s only claim, challenging certain conditions of probation, on the merits, and reforming
the judgment to delete those conditions); Cartwright v. State, 605 S.W.2d 287 (Tex. Crim. App.
1980) (abating the appeal and remanding for a proper assessment of restitution as a condition of
probation); Ex parte Clore, 690 S.W.2d 899, 900 (Tex. Crim. App. 1985) (refusing to entertain an
original habeas corpus application challenging a condition of probation because “Applicant’s
appropriate remedy to challenge the conditions of probation is by appeal”); Johnson v. State, 286
S.W.3d 346 (Tex. Crim. App. 2009) (entertaining the merits of a claim challenging a condition of
community supervision on appeal). Cf. Speth v. State, 6 S.W.3d 530 (Tex. Crim. App. 1999)
(holding that, in order for probationer to complain of a condition of community supervision on
appeal, he must have raised an objection to that condition in the trial court).
                                                                                     SHORTT — 8

706 S.W.2d 653, 656 (Tex. Crim. App. 1986) (“The Legislature [in Article 42.12] carefully

avoided defining ‘probation’ as a type of ‘punishment’ or ‘sentence.’”).6 Given our apparent

willingness to read Section 23(b) to embrace an appeal of the conditions of community

supervision from an original judgment that suspends imposition of sentence, thereby

“plac[ing the defendant] on community supervision[,]” there is no compelling reason we

should not also be willing to construe it to authorize an appeal of the conditions of


       6
          Of course, we also acknowledged in Green “that probation, substantively, is a type of
punishment.” 706 S.W.2d at 656 n.5 (citing Angelle v. State, 571 S.W.2d 301, 303 (Tex. Crim. App.
1978) (“Probation, as well as incarceration, is a form of punishment.”). There are good arguments
for contending that “community supervision” in Texas is not “punishment” at all, but is instead a
contractual arrangement whereby a person who has been found guilty of a crime avoids the
punishment called for by the law by agreeing to comply with certain conditions imposed by the trial
court. See Speth, 6 S.W.3d at 534 (“An award of community supervision is not a right, but a
contractual privilege, and conditions thereof are terms of the contract entered into between the trial
court and the defendant.”). There is a United States statute providing that, upon conviction for
certain federal offenses, a defendant may be “sentenced” to a term of probation. 18 U.S.C. § 3561(a).
Texas, on the other hand, does not define probation as a sentence that can be imposed. In addition,
Texas authorizes community supervision in certain cases where the determination of guilt has been
deferred. It could hardly be said that community supervision in that instance would constitute
punishment, since the defendant has yet even to be found guilty of a crime. Ex parte Hernandez, 705
S.W.2d 700, 702-03 (Tex. Crim. App. 1986). All that being said, the prevailing weight of decisional
authority in our state suggests that ordinary community supervision is punishment. In Green, for
example, this Court ultimately concluded, as we have noted, while “probation” was not
“punishment,” such that it could be cumulated under Article 42.08 of the Code of Criminal
Procedure, “probation, substantively, is a type of punishment.” 706 S.W.2d at 656-657 & n.5. In
addition, as we have also already noted, this Court has treated appeals occurring after defendants
have been placed on community supervision as an appropriate forum in which to raise complaints
about conditions of community supervision. See note 4, ante. Whether probation actually constitutes
punishment is incredibly consequential in cases like this one in which, if the Court were to determine
that community supervision is not punishment, then there would be no basis left upon which to argue
that the defendant is permitted to appeal. But the answer to that question having been decided in past
cases from this Court (whether correctly or not), and in the absence of argument from either party
that probation does not constitute punishment for purposes of Section 23(b), we accept that the
condition of community supervision challenged in this case constitutes at least a form of
“punishment” that can be challenged on appeal “at the time [the defendant] is placed on community
supervision.” TEX . CODE CRIM . PROC. art. 42.12, § 23(b).
                                                                                  SHORTT — 9

community supervision from a later order granting “shock” community supervision—an

order that suspends the execution of sentence, but just as assuredly “place[s the defendant]

on community supervision.” We construe Section 23(b) to authorize an appeal at either of

these junctions, if only for consistency’s sake. Whether the trial court suspends the

imposition or the execution of sentence, it “place[s]” the defendant “on community

supervision[,]” and that is the event that triggers the right to appeal pursuant to Article 42.12,

Section 23(b).

       Of course, construing it this way is not without its potential anomalies. For example,

what if the defendant has already filed a notice of appeal, and thereby set the appellate

timetable in motion, with respect to the original judgment that imposed an un-probated

sentence? Does the later order granting “shock” community supervision somehow supersede

the written judgment, so that a new notice of appeal must be filed which commences the

appellate timetable anew? This could present a problem. See Smith v. State, 518 S.W.3d 641,

645 (Tex. App.—Waco 2017, pet. granted) (dismissing an appeal from the original judgment

of conviction for want of jurisdiction because the appellant also filed a later notice of appeal

from an order granting “shock” community supervision; the later notice of appeal superseded

the first notice of appeal but came too late to challenge the original judgment of conviction).

To avoid this confusion, we could hold that the appeal from the order granting “shock”

community supervision is independent of the appeal from the original written judgment—a

separate appeal of the order suspending the execution of the sentence, with its own appellate
                                                                                     SHORTT — 10

timetable, but subject to being consolidated with the appeal from the original written

judgment.

        Alternatively, what if the defendant did not seek to appeal from the original written

judgment, but appealed for the first time only after the trial court had entered an order

granting “shock” community supervision? In that event, it might be appropriate to hold that

the defendant may not raise anything in his appeal of the “shock” community supervision

order that he could have raised in a timely appeal from the original written judgment. This

would be consistent with our often expressed policy to declare that the failure to timely raise

appellate issues constitutes a procedural impediment to raising them later.7 See, e.g., Manuel

v. State, 994 S.W.2d 658, 661 (Tex. Crim. App. 1999) (“We have long held that a defendant

placed on ‘regular’ community supervision may raise issues relating to the conviction, such

as evidentiary sufficiency, only in appeals taken when community supervision is originally

imposed.”); Wiley v. State, 410 S.W.3d 313, 321 (Tex. Crim. App. 2013) (citing Manuel for

the proposition that the appellant could not forego his right to appeal from the judgment

imposing community supervision, but then try to challenge a condition of that community


       7
            Presiding Judge Keller argues that this suggestion is inconsistent with the language of
Section 23(b) itself, which authorizes appeal of both the “conviction and punishment.” Dissenting
Opinion at 2-3. But the fact that Section 23(b) broadly authorizes an appeal of both conviction and
punishment does not necessarily mean that it is always appropriate to permit an appeal of both when
the appellant has already been afforded an opportunity to appeal his conviction. Presiding Judge
Keller reads this broad authorization as a reason not to construe the statute to reach shock probation
at all. In our view, however, it is more consistent with the apparent legislative intent to construe the
statute to extend to orders granting “shock” community supervision, and thereby allow an appeal to
the extent that an appeal has not already been authorized, but not to the extent that the appellant
obtains an unjustifiable second opportunity to appeal what he could have already appealed.
                                                                              SHORTT — 11

supervision as part of an appeal of the revocation of community supervision); Riles v. State,

452 S.W.3d 333, 338 (Tex. Crim. App. 2015) (“We made clear in Manuel and Wiley that

those issues that an appellant can raise in a direct appeal from the initial judgment must be

raised, and that failing to do so results in procedural default.”). Moreover, an appeal coming

after a trial court orders the suspension of the execution of a sentence would naturally be

understood to be an appeal of that order, not an appeal of the written judgment that would

have been entered as much as 180 days earlier. In any event, such a procedural limitation is

neither implicated nor raised in the instant case because Appellant is not attempting to appeal

from the original written judgment of conviction, but only from a condition imposed in the

new order granting “shock” community supervision. The answer to these questions are

therefore saved for another day.

                                             III.

       The judgment of the court of appeals dismissing Appellant’s appeal is vacated and the

cause is remanded to that court for further proceedings consistent with our holding that it had

jurisdiction to entertain Appellant’s appeal from the trial court’s order granting “shock”

community supervision.




DELIVERED:           February 14, 2018
PUBLISH
