                         NUMBER 13-13-00285-CR

                            COURT OF APPEALS

                  THIRTEENTH DISTRICT OF TEXAS

                     CORPUS CHRISTI - EDINBURG

CHARLES MANGOLD,                                                          Appellant,

                                          v.

THE STATE OF TEXAS,                                                       Appellee.


                   On appeal from the 148th District Court
                         of Nueces County, Texas.


                         MEMORANDUM OPINION
               Before Justices Rodriguez, Garza, and Perkes
                 Memorandum Opinion by Justice Perkes
      Pursuant to a plea-bargain agreement, appellant, Charles Mangold, pleaded “nolo

contendere” to possession of cocaine with intent to deliver, a second-degree felony. See

TEX. HEALTH & SAFETY CODE ANN. § 481.112 (a), (c) (West, Westlaw through 2013 3d

C.S.). The trial court sentenced appellant to ten years of confinement in the Texas

Department of Criminal Justice, Institutional Division, and imposed a $2,000 fine. The
trial court, however, suspended the imposition of the sentence and placed appellant on

community supervision for a term of five years. Several months later, the State moved

to revoke appellant’s community supervision. After a hearing on the motion to revoke,

the trial court entered its “Order Imposing Sanctions on Defendant and Continuing or

Modifying Probation,” by which it ordered appellant to participate in a residential

rehabilitation program called “Substance Abuse Felony Program.”

       By a single issue, appellant challenges that order, arguing that his modified

community-supervision conditions are disproportionate relative to the seriousness of the

offense that he committed, and are in violation of the Eighth and Fourteenth Amendments

to the United States Constitution. See U.S. CONST. amends. VIII, XIV. We dismiss the

appeal for lack of jurisdiction.

                          I. FACTUAL AND PROCEDURAL BACKGROUND

A. The Initial Offense

       Appellant judicially confessed to committing the offense of cocaine possession and

stipulated to the State’s evidence of the offense. Specifically, while Corpus Christi police

officers were investigating a traffic accident, they found that appellant had an active

warrant out of another county. As appellant stood up, he attempted to conceal a black

bag in a gap between the sidewalk and the grass. After handcuffing appellant and

placing him in a patrol car, the officers found that the bag contained fourteen individually-

wrapped plastic packages containing what the officers believed to be cocaine. The

contents field-tested positive for cocaine.      A Texas Department of Public Safety

laboratory later found the bags weighed a total of 3.05 grams and contained cocaine.


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B. The Revocation Proceedings

       At the outset of the hearing on the State’s motion to revoke, the trial court gave

appellant various written admonishments. Appellant told the trial court that his attorney

explained them to him and that he understood them. Appellant signed the document,

thereby acknowledging that he read and understood the admonishments. The written

admonishments explained that based on a finding of substance abuse, the trial court

could place appellant in an in-patient residential treatment facility, including “a substance

abuse felony punishment facility operated by the Texas Department of Criminal Justice.”

The written admonishments also explained that if the trial court found appellant violated

the terms of his community supervision, but thereafter continued appellant on community

supervision instead of revoking his community supervision, appellant would “have no right

to appeal an Order sanctioning [him] and continuing [him] on community supervision.”

       Appellant pleaded “not true” to the allegations that he violated the conditions of his

community supervision that prohibited the use of narcotics or controlled substances, and

partially denied that he admitted to his community supervision officer that he smoked

methamphetamine and marihuana laced with heroin on September 25, 2012.                   He

pleaded true, however, to an allegation that he violated a condition requiring that he

satisfactorily participate in a substance-abuse screening and that he submit to any

diversionary program deemed necessary by the community supervision department.

Appellant absconded from the court on September 28, 2012, before he could be taken

into custody for placement in a substance abuse felony punishment facility.




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       Based upon appellant’s plea of true to one allegation and the evidence presented,

the trial court found all of the allegations in the motion to revoke to be true. The trial

court, however, did not revoke appellant’s community supervision. Instead, the trial court

ordered that appellant be placed in a substance abuse felony punishment facility as a

sanction and as a condition of his community supervision. The court orally advised

appellant that because this was not a plea bargain case, he had the right to appeal. The

trial court’s written certification, executed the same day, also states that this “is not a plea

bargain case, and the Defendant has the right of appeal.”

                                  II. APPELLATE JURISDICTION

       The State argues that the trial court’s certification of appellant’s right to appeal is

defective and that our Court lacks jurisdiction over the instant appeal. We agree.

       When a trial court’s certification of defendant’s right to appeal is challenged as

defective, we review the record to determine (1) whether the trial court’s certification is

correct; and (2) our jurisdiction. Dears v. State, 154 S.W.3d 610, 614 (Tex. Crim. App.

2005); Pena v. State, 323 S.W.3d 522, 527 (Tex. App.—Corpus Christi 2010, no pet.).

A defective certification includes one which is correct in form, but which, when compared

with the record before the court, proves to be inaccurate. Dears, 154 S.W.3d at 614;

Pena, 323 S.W.3d at 527.

       In this case, the record shows that the order appellant attempts to appeal is an

order modifying the conditions of his community supervision. As the trial court correctly

stated in its written admonishments to appellant at the revocation hearing, an order

modifying conditions of community supervision is not appealable. See Davis v. State,


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195 S.W.3d 708, 710 (Tex. Crim. App. 2006) (“There is no legislative authority for

entertaining a direct appeal from an order modifying the conditions of community

supervision.”); Basaldua v. State, 558 S.W.2d 2, 5 (Tex. Crim. App. 1977) (same).

Where, as here, a review of the record can resolve the deficiency in the trial court’s

certification against a finding of jurisdiction, there is no need to delay disposition of the

appeal in order to direct the trial court to amend its certification of defendant’s right to

appeal. See Pena, 323 S.W.3d at 527; Morgon v. State, 135 S.W.3d 535, 538 (Tex.

App.—Corpus Christi 2006, pet. ref’d). Because the record affirmatively demonstrates

appellant does not have the right to appeal, we dismiss this appeal for lack of jurisdiction.

See Pena, 323 S.W.3d at 527; Morgon, 135 S.W.3d at 538.

                                       III. CONCLUSION

       This appeal is dismissed for want of jurisdiction.



                                                  GREGORY T. PERKES
                                                   Justice

Do not publish.
TEX. R. APP. P. 47.2(b).

Delivered and filed the
20th day of March, 2014.




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