            IN THE COURT OF CRIMINAL APPEALS
                        OF TEXAS
                                     NO. PD-0948-17



                                THE STATE OF TEXAS

                                             v.

                             CRISPEN HANSON, Appellee

            ON STATE’S PETITION FOR DISCRETIONARY REVIEW
                 FROM THE EIGHTH COURT OF APPEALS
                            EL PASO COUNTY

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

                                       OPINION

       A trial court entered two orders granting shock probation. The orders were

identical except that the second order was styled an“Amended Order,” it contained

additional findings of fact, and it was signed at a later time. Both orders suspended further

implementation of Appellee’s (Crispen Hanson) prison sentence and placed him on

probation. The State appealed from the second order, and the court of appeals dismissed
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the appeal for want of jurisdiction, concluding that only the first order granting shock

probation was appealable. The issue is whether the court of appeals erred when it decided

that the second order was not an appealable order. Because we conclude that it is an

appealable order under Article 44.01(a)(2) of the Code of Criminal Procedure, we reverse

the judgment of the court of appeals and remand the cause for the court of appeals to

consider the merits of the State’s appeal.

                                                  FACTS

         The trial court signed an order on June 15, 2015 granting shock probation. When

the trial court signed the order, it also signed an amended judgment and imposed

conditions of probation. On June 25, 2015, the trial court signed an “Amended Order.”

There were slight variations in the order. The style was different, additional findings of

fact1 were added, and it was signed on June 25, 2015. Both orders suspended execution of

Hanson’s prison sentence and placed him on probation. The State filed a notice of appeal

from the amended order2 on July 13, 2015, eighteen days after the trial court signed the

order.


         1
         The additional findings of fact include that (1) the trial court accounted for Hanson’s
general compliance with his bond conditions; (2) the trial court asserted that Hanson’s previous
release was due to medical reasons; (3) the trial court reasoned that Hanson had produced
evidence that he “maintains a good relationship with his children and is in compliance with all
legal support obligations” and that further incarceration would not only hinder Hanson’s efforts
to seek additional medical testing for himself and his children, but would also create an undue
hardship on Hanson, his children, and his parents; and (5) the trial court concluded that Hanson
would not benefit from further incarceration.
         2
             The State did not appeal the trial court’s first order granting shock probation.
                                                                                          Hanson–3

                                 THE COURT OF APPEALS

       The court of appeals dismissed the appeal for want of jurisdiction. State v. Hanson,

No. 08-15-00205-CR, 2017 WL 3167484, at *1 (Tex. App.—El Paso July 26, 2017) (not

designated for publication). According to the court of appeals, “[w]hile the trial court

signed an amended order on June 25, 2015 for the ostensible purpose of adding additional

findings of fact, the amended order did not include any substantive changes to the initial

order placing Hanson on community supervision for eight years.” Id. at *2. Based on this

and because the trial court contemporaneously signed orders establishing the terms and

conditions of Hanson’s probation and signed an amended judgment relating only to the

first order granting shock probation, the court concluded that the “Amended Order” was

not an appealable order. Id. at *3.

                                         ARGUMENTS

       Hanson argues that we should adopt the reasoning of the court of appeals. The

State makes two arguments for reversing the judgment of the court of appeals. It first

argues that the amended order granting shock probation is appealable based on the plain

language of Article 44.01 in that the amended order was an (1) “order” 3 and (2) it

“modifie[d] a judgment.”4 Alternatively, it argues that we should adopt a civil line of



       3
        The State is entitled to appeal an “order” of a court in a criminal cases for specified
reasons. TEX . CODE CRIM . PROC. art. 44.01(a).
       4
      The State can appeal when a trial court signs an order that “modifies a judgment.” TEX .
CODE CRIM . PROC. art. 44.01(a)(2).
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cases, see SLT Dealer Group, Ltd. v. AmeriCredit Financial Services, Inc., 336 S.W.3d

822, 831–32 (Tex. App.—Houston [1st Dist.] 2011, no pet.), which have held that a

second order is treated as a modified or reformed judgment that implicitly vacates and

supersedes the prior judgment, unless the record evinces a contrary intent. Id.; see T EX. R.

C IV. P. 301, 306a, 329b(e). Here, the State asserts, the record does not show a contrary

intent, so the “Amended Order” vacated the first and was, thus, appealable. SLT Dealer

Group, Ltd., 226 S.W.3d at 831–32; see City of Westlake Hills v. State ex rel. City of

Austin, 466 S.W.2d 722, 726–27 (Tex. 1971).

                                        ANALYSIS

       We agree with the court of appeals (and Hanson) that the body of law developed

by civil courts is inapplicable because this case deals with construing a statute, not

judicial precedent or construction of the Texas Rules of Civil Procedure. Hanson, 2017

WL 3167484, at *2. However, for the reasons that follow, we ultimately agree with the

State that the “Amended Order” was an appealable order.

       The court of appeals erred when it decided that the second order did not “modify a

judgment” under Article 44.01 because there was no substantive difference between the

orders. It also erred in reaching that conclusion by reasoning that the “Amended Order”

did not “modify a judgment” because the trial judge did not contemporaneously revise or

impose conditions of probation or sign a second amended judgment.

       The statute at issue, Article 44.01(a)(2) of the Texas Code of Criminal Procedure,
                                                                                           Hanson–5

states in relevant part that “[t]he [S]tate is entitled to appeal an order of a court in a

criminal case if the order . . . arrests or modifies a judgment.” T EX. C ODE C RIM. P ROC. art.

44.01(a)(2). Construing that statute, we have held that the State may appeal an order

granting shock probation because that order “modifies a judgment” under Article

44.01(a)(2). State v. Robinson, 498 S.W.3d 914, 919 (Tex. Crim. App. 2016). An order

modifying a judgment is “entered by the court” when the trial judge signs the order, State

v. Rosenbaum, 818 S.W.2d 398, 403 (Tex. Crim. App. 1991), and the State has twenty

days to file its notice of appeal after an appealable order is “entered by the court.” T EX.

C ODE C RIM. P ROC. art. 44.01(d); see T EX. R. A PP. P. 26.2(b).

       The issue here is whether the “Amended Order” granting shock probation

“modifies a judgment” within the meaning of Article 44.01(a)(2). Under these

circumstances, we conclude that it does. As the court of appeals concedes, there are

differences between the original order granting shock probation and the second order.

Those differences are sufficient to conclude that the second order modified a judgment

within the meaning of Article 44.01(a)(2). We are not confronted with a situation in

which the amended order is identical to the original order, but for a signature signed at a

later date or one in which the amended order has no independent legal significance,5 both


       5
         See e.g., State v. Antonelli, No. 958-01, slip op. at 1 (Tex. Crim. App. Sept. 11, 2002)
(not designated for publication). In Antonelli, the trial court granted a motion to quash in a signed
order and later issued an “Amended Order” in which it explained only why it granted the motion
to quash. Id. at 3. We held that the “Amended Order” was not an appealable order because it was
not actually an order. That is, it ordered nothing, and it could not stand on its own (i.e., it had no
legal significance independent from the original order granting the motion to quash). Id. at 4. We
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of which might require a different result. Consequently, under the facts of this case, the

trial court’s amended order granting shock probation was appealable, and because the

State filed a timely notice of appeal regarding that order, the court of appeals has

jurisdiction to hear the appeal, and it erred to conclude otherwise.

                                        CONCLUSION

          We reverse the judgment of the court of appeals and remand the cause for the

court of appeals to consider the merits of the State’s appeal.

Delivered: June 27, 2018

Publish




do not cite Antonelli for precedential value, nor should this opinion be construed to adopt the
Court’s reasoning in that case. We discuss Antonelli for only illustrative purposes.
