                                    In The
                               Court of Appeals
                      Seventh District of Texas at Amarillo

                                    No. 07-16-00104-CR


                        ASHLEY NICOLE JIMENEZ, APPELLANT

                                             V.

                           THE STATE OF TEXAS, APPELLEE

                           On Appeal from the 121st District Court
                                     Terry County, Texas
                  Trial Court No. 6519, Honorable Kelly G. Moore, Presiding

                                      August 9, 2016

                              CONCURRING OPINION
                   Before QUINN, C.J., and HANCOCK and PIRTLE, JJ.


       The majority dismisses the appeal of Appellant, Ashley Nicole Jimenez. While I

concur with the reasoning and conclusion of the majority, I write separately to

emphasize that the basis of the dismissal is not the absence of an “appealable order,”

as argued by the State in its Motion to Dismiss. Instead, the dismissal of Appellant’s

appeal is based upon the failure of Appellant to raise an issue upon which this Court

has jurisdiction to adjudicate.
       Appellant, Ashley Nicole Jimenez, timely gave notice of appeal from an order

entered by the trial court on March 3, 2016, requiring that she (1) serve a term of

confinement and treatment in a substance abuse felony punishment facility operated by

the Texas Department of Criminal Justice under section 493.009 of the Texas

Government Code, (2) submit to an indeterminate period of confinement in the Terry

County Jail pending transfer to a substance abuse felony punishment facility, and (3)

pay additional court costs as new conditions of her previously ordered community

supervision. The State filed a Motion to Dismiss requesting that this court dismiss

Appellant’s appeal on the basis that the trial court’s order imposing these additional

conditions of community supervision is not a “judgment of guilt or other appealable

order.” See TEX. R. APP. P. 25.2(a)(2). While the majority does dismiss Appellant’s

appeal, it does not do so on the basis advanced by the State.


       BACKGROUND

       On July 15, 2013, Appellant was indicted for the State Jail Felony offense of

injury to a child.1 On January 21, 2014, pursuant to a plea bargain reached with the

State, the trial court sentenced Appellant to two years confinement in a state jail facility,

suspended for a term of five years. As a part of her plea bargain, Appellant also agreed

that she would serve sixty days in the Terry County Jail and pay $388 in court costs. At

that time, the trial court ordered the sixty-day period of confinement to commence on

January 31, 2014. On January 29, 2014, the trial court suspended the commencement

of the sixty-day period of confinement and, in lieu thereof, ordered Appellant to appear


       1
          TEX. PENAL CODE ANN. § 22.04(a)(3) (West Supp. 2015). An indictment alleging an offense
under this provision is a State Jail Felony when, as here, the conduct engaged in is reckless.


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for a compliance hearing on September 2, 2014. The record does not reflect whether

the compliance hearing was ever held; however, on November 16, 2015, the State filed

a motion to revoke Appellant’s community supervision, alleging five violations of the

conditions of community supervision. On March 1, 2016, without the benefit of a plea

bargain, Appellant appeared and pled “true” to the allegations contained in the State’s

motion to revoke. At the conclusion of that hearing, the trial court found that Appellant

had violated four separate conditions of community supervision. In lieu of revocation

and incarceration, the trial court opted to amend the conditions of Appellant’s

community supervision by ordering that (1) she “remain in the Terry County Jail for a

period not to exceed 180 days until space is available in a Substance Abuse Treatment

Facility (Substance Abuse Felony Punishment Facility) operated by the Texas

Department of Criminal Justice under Section 493.009, Texas Government Code,” (2)

she “serve a term of confinement and treatment for an indeterminate term of not more

than 1 year or less than 90 days,” (3) she remain in the treatment facility until

discharged and after discharge participate in a drug and alcohol “continuum of care”

treatment plan as developed by the Texas Commission on Alcohol and Drug Abuse, (4)

she participate in and pay the cost of “any available AFTERCARE PROGRAM as

directed,” (5) she “[p]ay NEW COURT COSTS in the amount of $55.00,” (6) she pay the

balance of the original court costs and attorney’s fees of $688.00, and (7) she pay

arrearages on community supervision fees of $1,219.00.           An Order to Continue

Probation, incorporating these conditions, was signed on March 3, 2016, after which the

trial court certified that the order entered was not the result of a plea bargain and that




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Appellant had the right to appeal. Appellant timely filed a notice of appeal from that

order.


         DISCUSSION

         A trial judge may impose confinement in jail or a community corrections facility as

a condition of community supervision. See TEX. CODE CRIM. PROC. ANN. art. 42.12,

§ 12(a) (West Supp. 2015). The judge may order such confinement at the time the

defendant is initially placed on community supervision or at any time during the period

of supervision. Id. at § 12(c). In a felony case, the period of confinement may not

exceed 180 days. Id. at § 12(a).


         A trial judge may also require a defendant to serve a term of confinement and

treatment in a substance abuse felony punishment facility operated by the Texas

Department of Criminal Justice under section 493.009 of the Texas Government Code

as a condition of supervision. See TEX. CODE CRIM. PROC. ANN. art. 42A.303(a) (West

Supp. 2015). A term of confinement and treatment imposed under this provision must

be for an indeterminate term of not more than one year or less than 90 days. See TEX.

CODE CRIM. PROC. ANN. art. 42A.303(b) (West Supp. 2015).


         A defendant on community supervision may not, however, be deprived of his

liberty without due process of law. See Gagnon v. Scarpelli, 411 U.S. 778, 781-82, 93

S. Ct. 1756, 36 L. Ed. 2d 656 (1973) (holding that the loss of liberty entailed a serious

deprivation of rights requiring that a probationer be accorded due process of law). See

also Campbell v. State, 456 S.W.2d 918, 921 (Tex. Crim. App. 1970) (holding that,

although a motion to revoke community supervision is not a trial in a constitutional


                                              4
sense, when the State provides for appellate review of judicial decisions made in the

course of a revocation proceeding, then due process and equal protection of the law is

fully applicable thereto).


         ANALYSIS

         On July 14, 2016, relying on Duncan v. State, No. 07-16-00060-CR, 2016 Tex.

App. LEXIS 4878 (Tex. App.—Amarillo May 9, 2016, pet. filed) (Pirtle, J., dissenting)

and Basaldua v. State, 558 S.W.2d 2, 5 (Tex. Crim. App. 1977), the State filed a motion

to dismiss this appeal, contending that the March 3 order imposing the additional

conditions set forth above was neither the imposition of a sentence nor an appealable

order.


         Having dissented in Duncan on the same grounds, I continue to believe the

State’s reliance on Basaldua is misplaced. Basaldua involved a challenge to the trial

court’s refusal to modify a previously entered order of community supervision.             No

appeal was taken at the time the conditions of community supervision were imposed,

and the defendant filed his motion to modify several months later.             Under those

circumstances, the Court of Criminal Appeals found there was no, “constitutional nor

statutory authority which would confer jurisdiction on [the] court to hear an appeal from

an order . . . altering or modifying [existing] probationary conditions or an order, as in

the instant case, refusing to alter or modify such conditions.” Id. at 5 (emphasis added).

The Court went on to hold it did not have jurisdiction to hear a direct appeal from a

specific trial court ruling, to-wit: the order denying the defendant’s motion to modify.




                                              5
      Subsequently, the Court of Criminal Appeals has determined that Basaldua is not

controlling in situations where the condition of community supervision being appealed is

a condition of supervision being added. See Bailey v. State, 160 S.W.3d 11, 16 (Tex.

Crim. App. 2004) (finding jurisdiction to review an order adding payment of restitution as

a condition of community supervision because the “[a]ppellant could not have appealed

a decision granting restitution [when] there was no restitution award to appeal”).


      In Bailey, the Court specifically stated that Basaldua and its progeny stand for the

proposition that no appeal lies from an order denying a motion to alter or modify existing

conditions of community supervision. Here, the trial court initially ordered Appellant to

serve sixty days confinement in the Terry County Jail. That order was subsequently

rescinded before it became effective. When the original order of community supervision

was entered, the trial court did not order Appellant’s confinement and treatment in a

substance abuse treatment facility. Accordingly, the order being appealed is the initial

imposition of a condition of supervision potentially depriving Appellant of her liberty for

one year and 180 days. In this case, at the time of the original sentence, not only was

Appellant unaware that she would be required to submit to such a period of

confinement, she did not know whether such a condition would ever be required.

Consequently, there never was an order of incarceration from which she could have

appealed until March 3, 2016. Where, as here, the court has ordered (for the first time)

Appellant’s confinement as a condition of community supervision, the order imposing

that period of incarceration must constitutionally be an appealable order.


      In this case, Appellant is not seeking review of a condition previously ordered.

Instead, she seeks to invoke the jurisdiction of this court to review an order depriving

                                            6
her of a fundamental constitutional right, to-wit: liberty. The United States and Texas

Constitutions not only allow for such a review, due process and equal protection of the

law demand protection of the right to seek that review. See U.S. CONST. amend. XIV;

TEX. CONST. art. 1, § 19. To say that an order imposing incarceration for the first time is

not the imposition of a sentence or an appealable order defies constitutional logic and

offends the principles of due process of law. As such, I take issue with the position

advocated by the State and I write separately to emphasize that this court’s dismissal is

not based upon the absence of a sentence or appealable order.


       That being said, I do join the majority in dismissing Appellant’s appeal. As aptly

stated in the opinion by Justice Quinn, Appellant’s sole issue relates to the content of

the judgment entered when she was initially found guilty—an issue that could have

been reviewed by an appeal from that original proceeding. Appellant having failed to

raise a justiciable issue, I concur in the decision to dismiss her appeal.




                                                         Patrick A. Pirtle
                                                            Justice

Do not publish.




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