                                      NO. 07-07-0493-CR

                                 IN THE COURT OF APPEALS

                          FOR THE SEVENTH DISTRICT OF TEXAS

                                         AT AMARILLO

                                           PANEL A

                                     NOVEMBER 24, 2008

                             ______________________________


                              RODDY DEAN PIPPIN, APPELLANT

                                               V.

                              THE STATE OF TEXAS, APPELLEE

                            _________________________________

                FROM THE 46TH DISTRICT COURT OF HARDEMAN COUNTY;

                     NO. 3880; HONORABLE JUANITA PAVLICK, JUDGE1

                             _______________________________

Before CAMPBELL and HANCOCK and PIRTLE, JJ.


                                           OPINION


         On December 30, 2004, pursuant to a plea agreement in Cause No. 3880 (the

cause now on appeal), Appellant, Roddy Dean Pippin, was convicted of theft, a state jail

felony. Punishment was assessed at two years confinement in a state jail facility, with the



         1
             Former judge sitting by assignment. Tex. Gov’t Code Ann. § 75.054(a)(3)(Vernon
2005).
commencement of sentence to begin when the sentence in Cause No. 3879 ceased to

operate.2 Appellant has discharged the sentence imposed in Cause No. 3879 and the

sentence imposed in this cause began on August 6, 2006. Within the period specified by

the Texas Code of Criminal Procedure,3 Appellant filed a motion requesting the trial court

to suspend further execution of sentence by placing him on “shock probation.” On

November 8, 2007, the trial court signed an order granting Appellant’s motion and

suspending further imposition of sentence in Cause No. 3880. Without challenging his

conviction, Appellant presents two points of error contending the trial court erred by (1)

denying shock probation in the other cases that he was required to serve consecutive to

the sentence in Cause No. 3880,4 and (2) imposing upon him special condition 14 of the

conditions of community supervision which requires that upon completion of community

supervision in this cause, he report to the sheriff to begin serving the next sentence he was

required to serve. We dismiss for want of jurisdiction.

       2
        Tex. Code Crim. Proc. Ann. art. 42.08(a) (Vernon 2006). Unless otherwise
indicated, this and all future references to articles refer to the Texas Code of Criminal
Procedure.
       3
        At any time after the 75th day after the date the defendant is received into the
custody of a state jail, the judge of the original trial court may suspend further execution
of the sentence and place the defendant on community supervision under the conditions
specified by the court. Tex. Code Crim. Proc. Ann. art. 42.12, § 15(f)(2) (Vernon Supp.
2008).
       4
       While the record does not contain a copy of the judgments establishing the
sentences Appellant was required to serve consecutive to the sentence in Cause No. 3880,
we can determine from the pleadings contained in the Clerk’s Record that Appellant was
also convicted of two additional state jail felonies in Cause Nos. 3882 and 3885. Although
not determinative of the disposition of this appeal, for purposes of this appeal we will
assume that the subsequent sentences about which Appellant complains are the
sentences in Cause Nos. 3882 and 3885.

                                             2
                                      Background Facts


       Appellant testified at the hearing on his application for shock probation that he has

had diabetes since age six.5 Before his incarceration he was able to control his condition

by eating appropriate foods, regularly checking his blood sugar, and exercising. While

Appellant was serving his sentence in Cause No. 3879, the medical director of the state

jail facility where Appellant was being incarcerated, Dr. Jeff Duncan, determined that the

facility could not adequately monitor Appellant’s medical condition. Dr. Duncan had

Appellant transferred from the state jail facility to the Jester III Unit of the Institutional

Division where he could receive treatment twenty-four hours a day. The Jester III Unit

houses all levels of serious offenders and is not restricted to state jail felony offenders.


       Appellant, as well as some of his fellow inmates, testified that during his

incarceration his medical passes were not always honored by guards and at times there

were delays in getting Appellant medical attention during some of his seizures. Appellant

sought relief by applying for shock probation.


       At the conclusion of the testimony, defense counsel requested that Appellant be

granted shock probation on all remaining consecutive sentences. Defense counsel argued

that Appellant had been in custody in a state jail facility for the required minimum of

seventy-five days. The State, on the other hand, asserted that article 42.12, § 15(f)(2)

allowed the trial court to suspend further execution of the sentence in Cause No. 3880, but


       5
           Appellant was in his early 20's at the time of the hearing.

                                                3
that the trial court had no jurisdiction over the remaining sentences because those

sentences had not yet begun.


                                        Discussion


        By two points of error, Appellant challenges the trial court’s refusal to allow his

shock probation to apply to his remaining sentences and also complains of condition 14

of the trial court’s order granting shock probation which recites:


       [a]t the conclusion of the 2 years probation, Defendant shall report to the
       Hardeman County Sheriff’s Department, Quanah, Texas, to begin serving
       the sentence in Cause No. 3882. After 75 days have been served in that
       sentence the Defendant may file an application for shock probation with the
       Court.


       Initially, we note that article 42.12, § 15(f)(2) requires a defendant to be in custody

for a minimum of seventy-five days before the trial court may suspend further execution

of a sentence and grant shock probation. In those situations where the trial court has

imposed cumulative sentences, the court lacks jurisdiction to consider shock probation for

the subsequent sentence until the sentence in the first case ceases to operate. State ex

rel. Thomas v. Banner, 724 S.W.2d 81 (Tex.Crim.App. 1987). If the trial court would have

granted shock probation in the remaining cases before jurisdiction to do so attached, the

order purporting to do so would be void. Id. at 85.


       Notwithstanding the foregoing argument, the State argues that this Court has no

jurisdiction to entertain Appellant’s appeal. Relying on Perez v. State, 938 S.W.2d 761


                                              4
(Tex.App.–Austin 1997, pet. ref’d), the State contends there is no authority for this Court

to review an order granting shock probation. We agree.


       In Perez, the Austin Court of Appeals considered the defendant’s right to appeal

from an order granting shock probation as a question of first impression. Id. at 762. Perez

pled guilty to attempted aggravated sexual assault of a child and was sentenced to ten

years confinement. Within the time allowed by article 42.12, § 6(a), the trial court granted

Perez shock probation. He appealed complaining of one of the conditions of community

supervision which required him to report to law enforcement to complete all paperwork for

sex offender registration within seven days. The State alleged the court of appeals did not

have jurisdiction.


       Initially, the court of appeals acknowledged there is no constitutional right to appeal

a criminal conviction. See Perez, 938 S.W.2d at 762 (citing Phynes v. State, 828 S.W.2d

1, 2 (Tex.Crim.App. 1992)). It also recognized that the right to appeal is conferred by the

Legislature, and a party may appeal only that which the Legislature has authorized. See

Perez, 938 S.W.2d at 762 (citing Marin v. State, 851 S.W.2d 275, 278 (Tex.Crim.App.

1993)). See also Rushing v. State, 85 S.W.3d 283, 285 (Tex.Crim.App. 2002). Finding

the Court of Criminal Appeals’s decisions in Basaldua v. State, 558 S.W.2d 2, 5

(Tex.Crim.App. 1977), and Houlihan v. State, 579 S.W.2d 213 (Tex.Crim.App. 1979), to

be instructive, the court concluded it did not have jurisdiction over an appeal from an order

granting shock probation. Id. at 763.



                                              5
       In Basaldua, the Court of Criminal Appeals held that there is no constitutional or

statutory authority permitting a direct appeal from an order modifying or refusing to modify

conditions of probation. In Houlihan, the defendant appealed the trial court’s order

overruling his motion to place him on shock probation. As in Basaldua, the Court held

there was no constitutional or statutory authority which would confer jurisdiction upon an

appellate court to consider an appeal from an order pursuant to article 42.12, § 6 [shock

probation statute in non-state jail felonies]. Houlihan, 579 S.W.2d at 216. Based on the

reasoning in Basaldua and Houlihan, the Austin Court of Appeals held “[j]ust as there is

no authority for an appeal from an order refusing shock probation, neither is there authority

for an appeal from an order granting shock probation.” Perez, 938 S.W.2d at 762.

(Emphasis in original).


       Appellant’s appeal presents a novel question in that he is effectively contesting a

condition of the trial court’s order granting of shock probation in the case on appeal, while

simultaneously appealing the trial court’s denial of shock probation in multiple cases that

are not on appeal. Under the rationales of Basaldua, Houlihan, and Perez, we conclude

this Court has no jurisdiction to entertain Appellant’s two points of error.6


       6
         We express no opinion as to whether Appellant would be entitled to relief under
article 42.08(c) of the Texas Code of Criminal Procedure, which was added after the
Court’s decision in State ex rel. Thomas v. Banner, 724 S.W.2d 81 (Tex.Crim.App. 1987).
See Act of May 30, 1987, 70th Leg., R.S., ch. 513, § 1, 1987 Tex. Gen. Laws 2125. At all
relevant times to this appeal, article 42.08(c) provides that if a defendant has been
convicted in two or more cases and the court suspends imposition of the sentence in one
of the cases, the court may not order a sentence of confinement to commence on the
completion of a suspended sentence for an offense. The apparent conflict between State
ex rel. Thomas and article 42.08(c) is a question not presented by this appeal.

                                              6
      Consequently, this appeal is dismissed for want of jurisdiction.


                                               Patrick A. Pirtle
                                                   Justice


Publish.




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