             IN THE COURT OF CRIMINAL APPEALS
                         OF TEXAS

                          NO. PD-0514-17

                  FERNANDO SMITH, Appellant

                                   v.

                        THE STATE OF TEXAS

ON APPELLANT’S PETITION FOR DISCRETIONARY REVIEW
        FROM THE TENTH COURT OF APPEALS
                 CORYELL COUNTY

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

                             O P I N I O N

     Appellant, Fernando Smith, filed a notice of appeal after he was

adjudicated and sentenced in open court. While his appeal was pending

(and before he filed his brief), Smith filed a motion for shock probation

in the trial court.   When the trial court granted the motion, Smith

attempted to appeal that as well, relying upon the general notice of
                                                       Fernando Smith–2

appeal he had filed before he filed his motion for shock probation. The

court of appeals dismissed Smith’s appeal because he did not file a

separate notice of appeal after the order granting shock probation. As

discussed below, the appeal of an order granting shock probation is

independent of an appeal from adjudication and formal sentencing. In

other words, the general notice of appeal from adjudication and

sentencing does not act as a place holder notice for any appealable order

that comes from the trial court’s actions thereafter. In the absence of a

notice of appeal from the order granting shock probation, the court of

appeals properly dismissed the appeal. We will affirm.

                          Procedural History

     Smith pleaded guilty to family violence assault by choking, which is

a third degree felony. The trial court deferred adjudication and placed

Smith on community supervision for five years.        No restitution was

ordered.   His terms of supervision were modified multiple times, but

never included a restitution condition.   Later, Smith was adjudicated

guilty and sentenced to five years in prison. At that point sentencing was

complete. The trial court certified that the case “is not a plea-bargain

case, and the defendant has the right of appeal.” Smith timely filed a

notice of appeal of that judgment.
                                                        Fernando Smith–3

     The court of appeals received Smith’s notice and docketed the

appeal.    Five months after the appeal had been docketed but before

Smith had filed any appellate brief, he filed a motion for shock probation.

Smith was bench warranted from TDCJ back to the trial court for a

hearing. The trial court granted the motion.

     THE COURT: Well, what the Court is going to do, due to the
     fact that you were [on] probation for almost a period of five
     years previously, which was the period of your probation
     you're revoked, I'm going to continue to place you on
     probation. You were sentenced to five years. I am now going
     to probate that five year sentence for two years –

     THE DEFENDANT: Yes, sir.

     THE COURT: –from today's date. You will be under the terms
     and conditions of supervision that you were previously on.

     ***

     THE COURT: Everything will remain the same previously and
     any fines, court cost, or anything else previously assessed will
     be. If there's restitution–

     MS. SPEER [State]: I don't think there was any restitution.

     THE COURT: Anything that was previously ordered by the
     Court will be ordered. Now, do you agree that . . . Your
     attorney requested shock probation. You've been given shock
     probation. Do you have any objection to that?

     THE DEFENDANT: No, sir.

     THE COURT: All right. Good enough. Go with probation at this
     time.
                                                                    Fernando Smith–4

The judge signed a new “judgment adjudicating guilt” memorializing that

the five year sentence was now probated for two.                      Smith signed a

document listing the conditions of his probation. One condition ordered

restitution in the amount of $2,045.00. No certification of the right to

appeal this new “judgment” appears in the record. Smith did not file a

second notice of appeal. Instead, he filed a brief in the court of appeals

challenging the amount of the ordered restitution and pointing out some

inaccuracies in the new judgment. He asked that the appeal be abated

and the case be remanded to the trial court for a restitution hearing.

     The court of appeals asked Smith to address whether it had

jurisdiction to consider the appeal given that no new notice of appeal of

the shock probation “judgment” was filed. Smith argued, among other

things, that his notice of appeal could be treated as a premature notice

of appeal under Rule 27.1 of the Rules of Appellate Procedure, because

it was filed after the trial court made a finding of guilt but before his

sentence was suspended in open court. The court of appeals held that it

lacked jurisdiction over the appeal.1 It did so because, in this case, the

trial court issued a new judgment rather than an order, and no new notice




     1
         Sm ith v. State, 518 S.W .3d 641 (Tex. App.— Waco 2017).
                                                                     Fernando Smith–5

of appeal had been filed from that new judgment.2

       Elaborating, the court held that “there was effectively a new

sentencing hearing and an entirely new and complete judgment signed by

the trial court rather than merely an order that suspended the sentence

set out in the prior judgment and enunciated the conditions of community

supervision.”3           The appeal of the first/original judgment was therefore

moot.4 According to the court of appeals, “Any complaint about the shock

probation judgment will be the subject of an appeal about that judgment.

But to complain about that judgment, a defendant must file a notice of

appeal directed at the new judgment.” 5

       The court of appeals also rejected Smith’s Rule 27.1-based

argument because “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.”6 On discretionary review, Smith asks this Court,

“When a defendant files a timely notice of appeal from a judgment



       2
           Id. at 645.

       3
           Id. at 643 n.1.

       4
        Id. at 645 (“Sm ith’s appeal of the May 29, 2015 judgm ent is dism issed because that
judgm ent was rendered m oot by the October 14, 2015 judgm ent.”).

       5
           Id.

       6
           Id. at 644.
                                                                          Fernando Smith–6

adjudicating his guilt and is later placed on shock community supervision,

to complain on appeal about a condition of that community supervision

must he file a new notice of appeal?” Yes. He must.

                                           Perfecting Appeal

       The Texas Rules of Appellate Procedure govern the perfection of

appeal.          The Boykin plain language strictures do not apply to the

interpretation of court rules; appellate courts may consider extratextual

sources even absent ambiguity or absurd results.7 But the plain language

is a good place to begin.8 We turn to that language.

       To invoke the court of appeals’ jurisdiction, a defendant must timely

file a notice of appeal.9 According to Rule 26.2(a), a criminal defendant’s

notice of appeal must be filed:

       (1)        within 30 days after the day sentence is imposed or
                  suspended in open court, or after the day the trial court
                  enters an appealable order; or

       (2)        within 90 days after the day sentence is imposed or
                  suspended in open court if the defendant timely files a
                  motion for new trial.10


       7
           Donovan v. State, 68 S.W .3d 633, 635 (Tex. Crim . App. 2002).

       8
           Id.

       9
        T EX . R. A PP . P. 25.2(b). See also Olivo v. State, 918 S.W.2d 519, 522 (Tex. Crim . App.
1996) (“A tim ely notice of appeal is necessary to invoke a court of appeals’ jurisdiction.”).

       10
            T EX . R. A PP . P. 26.2(a).
                                                                     Fernando Smith–7


So Rule 26.2(a) contemplates two events that can start the appellate

clock running. The first is the imposition or suspension of sentence in

open court; that event sets the appellate timetable for an appeal of a

conviction and sentence in motion.11               The second is the entry of     “an

appealable order”; that event sets the appellate timetable for the appeal

of a specific, appealable order in motion.12

      While a late notice of appeal fails to invoke the jurisdiction of a

court of appeals, an early notice of appeal may be considered timely

under certain circumstances.              According to Rule 27.1(b), in criminal

cases,

      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, or the appealable order is signed by
      the trial court. But a notice of appeal is not effective if filed
      before the trial court makes a finding of guilt or receives a
      jury verdict.13

Premature notice rules ensure that a party will not be denied its appeal




      11
           Ex parte Madding, 70 S.W .3d 131, 135 (Tex. Crim . App. 2002).

      12
        Swearingen v. State, 189 S.W .3d 779, 781 (Tex. Crim . App. 2006); State v.
Rosenbaum , 818 S.W .2d 398, 402-03 (Tex. Crim . App. 1991).

      13
           T EX . R. A PP . P. 27.1(b).
                                                                             Fernando Smith–8

just because it mistakenly files its notice too quickly.14 Such rules are

often invoked in both civil and federal law, where deadlines run from

entry of order or judgment, rather than announcement.15 By comparison,

Texas Rule 27.1(b) rarely comes into play given that the appellate

timetable for an appeal from a conviction and sentence begins to run

from the pronouncement of sentence in open court. Of course, rarely

does not mean never. A few applications of Rule 27.1(b) have arisen in

Texas criminal cases.

        One court of appeals has held that a notice of appeal, filed after this

Court issues an opinion (granting an out-of-time appeal) but before it

issues its mandate, qualifies as a prematurely filed notice of appeal under

Rule 27.1(b); appellate deadlines were to be calculated “as if the

sentence had been imposed on the date on which the mandate of this




       14
             See, e.g., Panelli v. State, 709 S.W .2d 655, 656 (Tex. Crim . App. 1986) (applying T EX .
R. C IV . P. 306c to give effect to notice of appeal); Mayfield v. State, 627 S.W .2d 474, 475 (Tex.
App.— Corpus Christi 1981, no pet.) (per curiam ) (noting application of T EX . R. C IV . P. 306c “will
perm it an appellant who fully intended to appeal the right to appeal without being held
accountable to a ‘technicality’”).

       15
         See, e.g., T EX . R. A PP . P. 26.1 (notice of appeal m ust be filed within 30 days after the
judgm ent is signed); T EX . R. A PP . P. 27.1(a) (prem aturely filed notice of appeal is effective and
deem ed filed on the day of, but after, the event that begins the period for perfecting the
appeal); F ED . R. A PP . P. 4(b)(1)(A) (defendant's notice of appeal m ust be filed in the district
court within 14 days after the later of: (i) the entry of either the judgm ent or the order being
appealed; or (ii) the filing of the governm ent's notice of appeal); F ED . R. A PP . P. 4(b)(2) (notice
of appeal filed after the court announces a decision, sentence, or order–but before the entry of
the judgm ent or order–is treated as filed on the date of and after the entry).
                                                                          Fernando Smith–9

Court issues.”16 But another court of appeals has held, in an out-of-time

appeal case, that a notice of appeal filed before this Court issues an

opinion does not qualify as a prematurely filed notice of appeal under

Rule 27.1(b).17            And, Rule 27.1(b) has been applied to give effect to a

State’s notice of appeal after the trial court orally sustained a habeas

claim of double jeopardy but before the trial court signed the order

reflecting the oral grant of relief.18

          By the plain language of Rule 27.1(b), a notice filed after

adjudication but before sentencing is effective to perfect an appeal of

both. But, as courts of appeals have reasonably interpreted this rule, if

a party seeks to appeal an issue (requiring a separate appealable order

independent from the conviction and sentence) that the trial court has not

yet decided, then Rule 27.1(b) should not operate to vest the court of

appeals with jurisdiction over that appeal. With these rules and cases in

mind, we turn to the issue whether an appeal of the grant of shock

probation was perfected here.


          16
         Gipson v. State, 268 S.W.3d 862, 864 (Tex. App.— W aco 2008, no pet.) (quoting Ex
parte Gipson, No. AP-75,907, 2008 W L 1930672, at *1 (Tex. Crim . App. Apr. 30, 2008)).

          17
               Franks v. State, 219 S.W .3d 494, 496 (Tex. App.—Austin 2007, pet. ref'd).

          18
               Ex parte Crenshaw, 25 S.W .3d 761, 764 (Tex. App.—Houston [1st Dist.] 2000, pet.
ref'd).
                                                                        Fernando Smith–10

            Shock Probation Is Granted Through an “Order”

       When we recognized a defendant can appeal a grant of shock

probation, we noted what the parties recognize here: “shock” probation

will be granted pursuant to an order on a motion, usually well after the

written judgment has been entered.19 A shock probation hearing is not

a new trial on punishment. A trial judge has no authority to issue a new

judgment and sentence some five months after adjudication.20 The only

way in which the trial court’s subsequent “judgment” in this case may be

understood as being permitted by law is as a written order granting

Smith’s motion for shock probation by suspending execution of the

sentence. 21


       19
           Shortt v. State, 539 S.W.3d 321, 324 (Tex. Crim App. 2018) (statutory schem e does
not contem plate that the trial court enter a new judgm ent, but sim ply that it grant or deny the
m otion pursuant to its continuing jurisdiction to consider, and if appropriate, grant, com m unity
supervision); Appellant’s Br. 17-18 (“The fact that there are two separate proceedings resulting
in two separate judgm ents seem s to have troubled the lower court . . . . But it is unclear why
this distinction should m ake a difference when, whether by order or judgm ent, the result is the
sam e: the suspension of the earlier sentence and the placem ent of the defendant on shock
com m unity supervision. In either case, the original judgm ent and sentence were com plete,
subject to m odification . . . .”); State’s Br. 21 (“The Tenth Court characterized the Judgm ent
as an entirely new and com plete Judgm ent. But, when a trial court grants shock probation
under the provisions of Article 42.12 § 6(a), it suspends the execution, rather than the
im position, of the sentence. Rather than entering a new judgm ent, it m erely is suspending the
sentence of the existing Judgm ent.”).

       20
         T EX . R. A PP . P. 21.8 (court m ust rule on m otion for new trial within 75 days of
sentencing or m otion will be deem ed denied); State ex rel. Cobb v. Godfrey, 739 S.W .2d 47,
49 (Tex. Crim . App. 1987).

       21
          W e hinted as m uch in Shortt when we observed, “To avoid . . . confusion, we could
hold that the appeal from the order granting ‘shock’ com m unity supervision is independent of
                                                                      Fernando Smith–11

       As both parties acknowledge, when construing an order, we consider

the substance of it and not just the label attached to it.22 An appellate

court, in order to determine its jurisdiction, must look to the effect of any

orders concerning an indictment or information, not what the trial court

or the parties at trial have labeled such orders.23 And a grant of shock

probation is an order that suspends the execution of a previously-

pronounced sentence by placing the defendant on community supervision.

It is appealable by either party.24 Even though the order in this case was

labeled as a new judgment, it was nevertheless a court order granting

shock probation.

                       Rule 27.1(b) Does Not Apply Here

       It is undisputed that no notice of appeal was filed from the order

granting shock probation.             Smith asserts, however, that the notice of

appeal he filed after adjudication and sentencing–five months prior to



the appeal from the original written judgm ent–a separate appeal of the order suspending the
execution of the sentence, with its own appellate tim etable, but subject to being consolidated
with the appeal from the original written judgm ent.” 539 S.W .3d at 326.

       22
            Skinner v. State, 484 S.W .3d 434, 437 (Tex. Crim . App. 2016).

       23
            State v. Moreno, 807 S.W .2d 327, 332-33 (Tex. Crim . App. 1991).

       24
        State v. Hanson, ___ S.W.3d ___ , 2018 WL 3133690, at *2 (Tex. Crim . App. June
27, 2018); Shortt, 539 S.W .3d at 326; State v. Robinson, 498 S.W .3d 914, 919 (Tex. Crim .
App. 2016).
                                                                          Fernando Smith–12

being put on shock probation–can be treated as a prematurely filed notice

of appeal of the order granting shock probation. According to Smith, the

“notice of appeal was filed after his conviction but before his sentence

was suspended.”25                   And, as set out above, in criminal cases, “a

prematurely filed notice of appeal is effective and deemed filed on the

same day, but after, sentence is . . . suspended in open court” so long as

it is filed after the trial court makes a finding of guilt.26

       But Smith is not appealing his conviction and sentence.27                                He’s

appealing a stand-alone, appealable order.28 Just as the phrase “imposes

or suspends” in Rule                       21.4–the rule governing motions for new

trial–applies to formal sentencing, so too does the phrase “imposed or

suspended” in Rule 27.1.29 The use of the phrase in both rules indicates



       25
            Appellant’s Br. 22.

       26
            T EX . R. A PP . P. 27.1(b).

       27
         See Tex. Code Crim . Proc., art. 44.02 (setting out a defendant’s general right to
appeal a final judgm ent). See also Abbott v. State, 271 S.W .3d 694, 697 (Tex. Crim . App.
2008) (noting that a defendant has a right to appeal from a final judgm ent of guilt or other
appealable order).

       28
          See Shortt, 539 S.W.3d at 324-25 (recognizing that statutory provision regarding
appeal of placem ent on com m unity supervision is broad enough to accom m odate an appeal of
the conditions of probation im posed by an order granting shock probation).

       29
          T EX . R. A PP . P. 21.4(a) (“The defendant m ay file a m otion for new trial before, but no
later than 30 days after, the date when the trial court im poses or suspends sentence in open
court.”). See also Donovan, 68 S.W .3d at 636 (m otion for new trial does not lie absent an
adjudication because when adjudication is deferred, there is no conviction, and therefore, there
is nothing that can be set aside so as to create an occasion for im plem entation of Rule 21).
                                                                    Fernando Smith–13

an application to an appeal of a conviction and sentence, not to a

separate appealable order.                        In Rule 27.1(b) the phrase does not

encompass an appeal of a subsequent appealable order signed by the trial

court granting shock probation.                     We agree with the courts that have

rejected the concept that a premature notice of appeal could be used as

an appellate place holder for any appealable order that might be entered

later.

         For example, in Manrique v. United States, the Supreme Court

interpreted the federal premature notice rule and held that a single notice

of appeal from an initial judgment deferring the determination of the

restitution amount is not sufficient to invoke appellate review of a

later-determined restitution amount in an amended judgment.30                     The

Court rejected the argument that, under the premature notice rule, the

notice “springs forward” to become effective on the date the district court

entered the amended judgment imposing restitution.31 And, in Marshall

v. Commissioner Pennsylvania Department of Corrections, the Third

Circuit Court of Appeals recognized that the federal premature notice rule

does not permit the ripening of a notice of appeal filed before the district


         30
              137 S. Ct. 1266, 1273 (2017).

         31
              Id.; F ED . R. A PP . P. 4(b)(2).
                                                                     Fernando Smith–14

court announces the decision sought to be challenged.32 Rather, relying

upon the Supreme Court decision in FirsTier Mortgage Co. v. Investors

Mortgage Insurance Co., the court explained that the rule permits a

premature notice of appeal from a bench ruling to relate forward to

judgment and serve as an effective notice of appeal from the final

judgment.33 The rule is intended to protect an unskilled litigant who files

a notice of appeal from a decision that he reasonably but mistakenly

believes to be final.34

      Of course, the Texas rule allows a notice filed between conviction

and sentencing to perfect an appeal of both conviction and sentencing.

Still, we have made clear that in Texas, appeals from convictions, and

appeals from orders, are two different things. As we stated in Rodarte v.

State, addressing what is now Rule 26.2,

      That Rule 41(b)(1) provides for notice of appeal within thirty
      days of imposition or suspension of sentence in open court
      “or” the signing of an appealable order does not mean that
      either event will trigger the running of the thirty days in any
      case in which a party has occasion to appeal. The “or” in Rule
      41(b)(1) is not inclusive; rather, it is context dependent. That
      is to say, deciding which of the two starting points for

      32
           840 F.3d 92, 95-96 (3d Cir. 2016).

      33
           Id. at 95 (quoting FirsTier Mortg. Co. v. Inv’rs Mortg. Ins. Co, 498 U.S. 269, 276
(1991)).

      34
           Id.
                                                                        Fernando Smith–15

         calculating timeliness of the notice of appeal applies depends
         upon what is being appealed. In the “ordinary” appellate
         context, where the defendant appeals a judgment of
         conviction, the thirty days begin to run on the day sentence is
         imposed or suspended in open court—unless appellant files a
         motion for new trial, in which case he is provided ninety days
         from the day sentence is imposed or suspended in open court
         to file his notice of appeal. In other appealable criminal
         cases—appeal by the State under Article 44.01, supra, and
         appeal from an adverse order after the issuance of a writ of
         habeas corpus other than a post-conviction application for
         habeas corpus brought under Article 11.07, —the timetable for
         notice of appeal begins on the day of the signing of the
         appealable order, e.g., the order dismissing the indictment,
         granting a new trial, suppressing evidence, or denying habeas
         corpus relief.35

Other examples of appealable orders that require a notice of appeal

include: an order entering a nunc pro tunc judgment36 ; an order setting

bail while on appeal37 ; and an order denying a motion for post-conviction

DNA testing.38 None of these appeals arise in the “ordinary” appellate

context. Neither does a complaint about excessive restitution, imposed

as a condition of shock probation. Such appeals are separate from the

appeal of the conviction itself and must be perfected by a separate notice



         35
              860 S.W .2d 108, 109–10 (Tex. Crim . App. 1993) (citations om itted).

         36
              Blanton v. State, 369 S.W .3d 894, 896 (Tex. Crim . App. 2012).

         37
              Delangel v. State, 132 S.W .3d 491, 494 (Tex. App.— Houston [1st Dist.] 2004, no
pet.).

         38
              In re Johnston, 79 S.W .3d 195, 197 (Tex. App.— Texarkana 2002, no pet.).
                                                                      Fernando Smith–16

of appeal.39

       In these situations, the timetable for filing a notice of appeal is

triggered by the signing of the appealable order.40 By its language, Rule

27.1(b) can apply to appealable orders outside the “ordinary” appellate

context; but in those circumstances, a motion that would give rise to that

appealable order must at least have been filed.41 As the Waco court of

appeals observed when considering an application of Rule 27.1 to a civil

case, “there is nothing in Rule 27.1 or the remainder of the Rules of

Appellate Procedure that indicate, and the clear implication is to the

contrary, that a notice of appeal can be filed in anticipation of an appeal

that may be somewhere in the indefinite future.” 42 In this case, Smith’s


       39
          See Delangel, 132 S.W .3d at 494 (recognizing that because trial court necessarily sets
appeal bond after final judgm ent, a com plaint about excessive bail is separate from appeal of
the conviction and punishm ent and m ust be perfected by a separate notice of appeal); cf. Ham
v. State, 301 S.W .3d 930, 931 (Tex. App.— Am arillo 2009, no pet.) (holding that a separate
notice of appeal is unnecessary to consider an appeal from an order denying a m otion for a
record at State expense because it is ancillary to the appeal challenging a judgm ent of
conviction and punishm ent).

       40
            Rosenbaum , 818 S.W .2d at 402-03.

       41
          See, e.g., Crenshaw, 25 S.W .3d at 764; State v. Rollins, 4 S.W.3d 453, 454 n.1 (Tex.
App.— Austin 1999, no pet.) (where State files notice of appeal from an order dism issing an
indictm ent before the order is signed, the notice becom es effective upon the signing of the
order).

       42
          Ganesan v. Reeves, 236 S.W .3d 816, 817 (Tex. App.— W aco 2007, pet. denied). See
also Rainbow Group, Ltd. v. W agoner, 219 S.W.3d 485, 492-93 (Tex. App.— Austin 2007, no
pet.) (T EX . R. A PP . P. 25.1(f) does not allow an appellant to alter its notice of appeal from
appealing one interlocutory order to appealing an entirely separate interlocutory order;
“Rainbow Group cannot now transform its Decem ber 27 notice of appeal (of the Novem ber 23
order) into a tim ely notice of appeal of the Decem ber 19 order because this is not the type of
                                                                           Fernando Smith–17

notice of appeal, filed before he even moved for shock probation, did not

sufficiently invoke the court of appeals’ jurisdiction over the separate

appealable order granting shock probation.43

       We also reject Smith’s argument that the same concerns motivating

this Court’s liberal construction of Rule 27.1 in Kirk v. State are present

here.44 In Kirk, we recognized that the rule regarding motions for new

trial imposes a time limit only on the granting of a new trial, not the

rescinding of such a grant.45 Thus, a trial judge could rescind an order

granting a motion for new trial even after 75 days following judgment.

To prevent the late reinstatement of a judgment from depriving a party

of the ability to appeal, we held that

       rescinding an order granting a new trial outside the
       seventy-five-day time limit results in re-calculating appellate
       timetables. In that situation, the rescinding order shall be
       treated as an “appealable order” under Texas Rule of
       Appellate Procedure 26.2, and appellate timetables will be
       calculated from the date of that order. If the defendant
       previously filed a notice of appeal with respect to the trial
       court's judgment of conviction, that notice shall be treated as
       a prematurely filed notice of appeal with respect to the
       rescinding order, and the defendant will be entitled to appeal,


am endm ent that Rule 25.1(f) was designed to accom plish.”).

       43
            T EX . R. A PP . P. 25.2(b). See also Olivo, 918 S.W .2d at 522.

       44
            454 S.W .3d 511 (Tex. Crim . App. 2015).

       45
            Id. at 515.
                                                                   Fernando Smith–18

       not only the trial court's decision to rescind the order granting
       a new trial, but also any issue that he could have appealed if
       the motion for new trial had never been granted.46

So too then, Smith argues, a previously filed notice of appeal of the

judgment of conviction should be treated as a prematurely filed notice of

appeal of the shock probation order.

       But the concern in Kirk was not the loss of the appeal of the

rescinding order, which could be perfected with a new notice directed at

that appealable order. Rather, it was the potential loss of the appeal of

the reinstated judgment.                The defendant in Kirk had actually filed a

motion to dismiss his appeal on the ground that the trial court’s order

rescinding the grant of the motion for new trial on punishment was

untimely.47         Conversely, Smith’s right to appeal the adjudication and

sentence in this case has never been in jeopardy. Our interpretation of

Rule 27.1(b) here does not place it there.

                                         Conclusion

       Just as a general notice of appeal filed after pronouncement of

sentence would not invoke appellate jurisdiction over a later denial of a



       46
            Id. (citations om itted).

       47
           Id. at 512. The court of appeals obliged the defendant by granting the m otion to
dism iss the appeal. Id.
                                                                      Fernando Smith–19

motion for DNA testing, a general notice of appeal does not invoke

appellate jurisdiction over an order granting shock probation either.48 The

appeal of an order granting shock probation is independent of an appeal

from adjudication and sentencing. It is a separate appeal of a separate

appealable order, with its own appellate timetable.                          It requires a

separate notice of appeal. In the absence of a timely notice of appeal,

the court of appeals properly dismissed Smith’s appeal.

Delivered: September 26, 2018

Publish




       48
         See Manrique, 137 S. Ct. at 1271 (“Petitioner filed only one notice of appeal, which
preceded by m any m onths the sentence and judgm ent im posing restitution. His notice of appeal
could not have been ‘for review’ of the restitution order[.]”).
