
Nos. 04-98-00964-CR, 04-98-00965-CR & 04-98-00966-CR

Michael B. DODSON,
Appellant

v.

The STATE of Texas,
Appellee

From the 187th Judicial District Court, Bexar County, Texas
Trial Court Nos. 94-CR-6401, 95-CR-4539 & 95-CR-4540
Honorable Raymond Angelini, Judge Presiding
 
Opinion by:	Alma L. López, Justice


Sitting:	Alma L. López, Justice

		Catherine Stone, Justice

		Paul W. Green, Justice


Delivered and Filed:	February 24, 1999


APPEALS DISMISSED FOR WANT OF JURISDICTION

	Appellant seeks appellate review of the trial court's determination that his plenary
jurisdiction to rule on a post-judgment motion for "shock probation" had expired. Following our own
jurisdictional review, and a show cause order, we reluctantly conclude that this is an out-of-time
appeal over which we have neither original nor appellate jurisdiction. This matter can only be
addressed by the Texas Court of Criminal Appeals. It is unfortunate that appellant, through no fault
of his attorney, finds himself in this procedural quandry.

Procedural Events
	On May 19, 1998, Michael B. Dodson was sentenced to two years' imprisonment for felony
theft. The court also revoked Dodson's probation sentences regarding two previous drug convictions
and sentenced him to six years' imprisonment for those offenses. He was remanded to the Bexar
County Sheriff's custody and held in the Bexar County Jail until July 3, 1998, when he was
transferred to the Texas Department of Criminal Justice, Institutional Division (TDCJID).

	On August 14, 1998, Dodson's counsel timely filed motions requesting shock probation
pursuant to the Texas Code of Criminal Procedure, Article 42.12, §6(a). Counsel diligently
communicated with the court's coordinator as to the appropriate time to present the motions to the
court and she brought the matter to the court's attention. The judge initially told her that it was too
early to consider the motions and that he would do so closer to the 180-day deadline -- the time his
continuing jurisdiction would expire.

	On October 27, 1998, the court reviewed the motions and wrote on them: "10/27/98 granted,
Raymond Angelini, set 11-17-98." On October 28, the court coordinator telephoned appellant's
attorney and told him that the motions for shock probation were "approved," and that Dodson would
be transported back from TDCJID for a hearing. At this point, a communications snafu occurred.
Appellant's counsel understood this message to mean that his motions had been granted and that the
hearing was a mere formality. The court coordinator later testified that in her mind motion approval
meant that "we bring him back for his hearing for shock probation." And, unfortunately, the court
coordinator failed to notify the assistant district attorney of the hearing scheduled for November 17,
1998.

	On Friday, November 13, 1998, Dodson arrived back at the Bexar County Jail and was
brought to court on Tuesday, November 17, 1998, for the hearing. At the hearing, the prosecutor
objected that the court lacked jurisdiction to consider the motions because 182 days had passed since
the date Dodson had been sentenced. The trial court concluded that after the expiration of 180 days,
his authority to conduct the hearing had ceased, and he denied the motions. Dodson's counsel
immediately sought to appeal these decisions.

Jurisdiction
	We are constrained to consider several legal issues raised in these appeals because an order
entered pursuant to Article 42.12 § 6 is not appealable. See Basaldua v. State, 558 S.W.2d 2, 5 (Tex.
Crim. App. 1977). The right to appeal is conferred by the Legislature, and a party may appeal only
that which the Legislature has authorized. Marin v. State, 851 S.W.2d 275, 278 (Tex. Crim. App.
1993). An order denying shock probation is not among those so authorized. See Houlihan v. State,
579 S.W.2d 213, 215-16 (Tex. Crim. App. 1979).

	Dodson's argument is that these appeals concern the court's perceived lack of jurisdiction
rather than the denial of such an order. However, as the time to invoke appellate jurisdiction expired
thirty days following imposition of the sentences, we, too, are without authority to consider the
matter. See Tex. R. App. P. 26.2 (a) (1), (2); Perez v. State, 938 S.W.2d 761,763 (Tex. App.--Austin
1997, pet. ref'd).

	Dodson's dilemma raises several legal questions which beg resolution. His counsel argues
that Texas law is unclear as to what event triggers the 180-day period of continuing jurisdiction for
purposes of Article 42.12 § 6. Is it the day a prisoner is sentenced or the day he is  transported to a
state prison? Compare Smith v. State, 789 S.W.2d 590 (Tex. Crim. App. 1990) (Clinton, J.,
concurring) (controlling date not date sentence is pronounced) with State v. Dean, 895 S.W.2d 814
(Tex. App.-- Houston [14th] 1995, pet. ref'd) (no need for penitentiary confinement to grant shock
probation).

	Secondly, what action constitutes the "granting" of a motion for shock probation? If the trial
court has decided to put the State to the expense of transporting a prisoner back to court for a shock
probation hearing, it is highly likely the court intends to grant the requested relief. When the order
setting the hearing occurs within the 180-day period, does the court have jurisdiction to complete
the process outside of that time? See State v. McDonald, 642 S.W.2d 492, 493 (Tex. Crim. App.
1982) (Teague, J., dissenting) (rigid application of shock probation deadline after district court set
hearing outside 180-day time period rendered "unjust result").

	Dodson's counsel asks a third question: what remedies are available if, through no fault of
his own, a defendant is deprived of a hearing within the 180-day period? In this case, Dodson had
actually been returned to the Bexar County Jail within 180 days of the imposition of sentence -- the
strictest construction of the first question raised here. Neither the appellant nor his counsel has
control over the court's docket -- nor should they. However, when counsel has been exceedingly
diligent, as is the case presented here, in seeking this relief, the quest for fundamental fairness is a
valid one to consider.

	In Basaldua, the court of criminal appeals, after recognizing it had no jurisdiction over a
direct appeal to review an order modifying probation, nevertheless, found that it could do so under
its original habeas corpus jurisdiction. See Basaldua, 558 S.W.2d at 5; Tex. Code Crim. Proc. Ann.
art. 11.07, § 3(a) (Vernon Supp. 1998). The courts of appeals have no original habeas corpus
jurisdiction in criminal matters; their jurisdiction is appellate only.  Norris v. State, 630 S.W.2d 362,
364 (Tex. App.--Houston [1st Dist.] 1982, no pet.); Ex parte Denby, 627 S.W.2d 435, 435 (Tex.
App.--Houston [1st Dist.] 1981, no pet.), cert. denied, 462 U.S. 1110 (1983). Accordingly, we must
dismiss these appeals for want of jurisdiction.

							Alma L. López, Justice

PUBLISH


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