                                  NO. 07-06-0057-CR

                             IN THE COURT OF APPEALS

                      FOR THE SEVENTH DISTRICT OF TEXAS

                                     AT AMARILLO

                                       PANEL A

                                     MAY 17, 2006

                         ______________________________

                       THADDEUS ALLAN DUKE, APPELLANT

                                           V.

                         THE STATE OF TEXAS, APPELLEE
                       _________________________________

             FROM THE 251ST DISTRICT COURT OF POTTER COUNTY;

                NO. 51197-C; HONORABLE PATRICK PIRTLE, JUDGE
                       _______________________________


Before REAVIS and CAMPBELL and HANCOCK, JJ.


                              MEMORANDUM OPINION


      Appellant, Thaddeus Allan Duke, appeals from a Supplemental Order Amending

Conditions of Probation. We dismiss for want of jurisdiction.


                                    BACKGROUND


      On January 25, 2006, the trial court amended appellant’s community supervision to

add, as a condition of his community supervision, that appellant participate in a Sex

Offender program. On February 16, 2006, appellant filed notice of appeal, seeking our
review of the trial court’s modification of his community supervision. This court, considering

its jurisdiction, abated further proceedings and allowed the parties to present any other

considerations as to why this court had jurisdiction to consider this matter. Neither

appellant nor the State filed any additional briefs.


                                             LAW


       A threshold question in any case is whether the court has jurisdiction over the

pending controversy. See State v. Roberts, 940 S.W.2d 655, 657 (Tex.Crim.App. 1996)

overruled on other grounds, State v. Medrano, 67 S.W.3d 982 (Tex.Crim.App.2002). A

court has jurisdiction to determine whether it has jurisdiction. Id. at 657; Olivo v. State, 918

S.W.2d 519, 523 (Tex.Crim.App. 1996). Courts will address the question of jurisdiction sua

sponte. Roberts, 940 S.W.2d at 657. For unless a court has jurisdiction over a matter, its

actions in the matter are without validity. Id. at 657 n.2. Jurisdiction is the power of the

court over the subject matter of the case, conveyed by statute or constitutional provision.

Id.


       If the jurisdiction of a court of appeals is not properly invoked, the power of the

appellate court to act is as absent as if it did not exist, Olivo, 918 S.W.2d at 523 (quoting Ex

parte Caldwell, 383 S.W.2d 587, 589 (Tex.Crim.App. 1964).               If an appellate court

determines that it has no jurisdiction to decide the merits of an appeal, the appropriate

action is to dismiss. See State v. Taft, 958 S.W.2d 842, 843 (Tex.Crim.App. 1998).




                                               2
                                         ANALYSIS


       Ordinarily, an order modifying probation is not subject to appeal. See Basaldua v.

State, 558 S.W.2d 2, 5 (Tex.Crim.App.1977). Case law has allowed complaints about a

modification order on appeal only when violation of the modified order forms the basis of

a subsequent revocation. See Elizondo v. State, 966 S.W.2d 671, 672 (Tex.App.–San

Antonio 1998, no pet.). Under Rules of Appellate Procedure 25.2 and 26.2,1 a defendant’s

appeal from a judgment or other appealable order is perfected by filing a notice of appeal

within 30 days after the date sentence is imposed or suspended in open court, or after the

day the trial court enters an appealable order.        Because this is an appeal from a

modification of the conditions of probation, and not from a revocation of probation, we find

that the order is not appealable and we have no jurisdiction.


                                      CONCLUSION


       Determining that we have no jurisdiction to entertain appellant’s appeal, we dismiss

for want of jurisdiction.




                                           Mackey K. Hancock
                                               Justice




       1
          The Rules of Appellate Procedure do not establish jurisdiction of courts of appeals,
but, rather, the Rules provide procedures which must be followed in order to invoke
jurisdiction over a particular appeal. See Olivo, 918 S.W.2d at 523.

                                              3
