                                    COURT OF APPEALS
                                 EIGHTH DISTRICT OF TEXAS
                                      EL PASO, TEXAS

                                                   §
 THE STATE OF TEXAS,                                                  No. 08-15-00205-CR
                                Appellant,         §
                                                                        Appeal from the
 v.                                                §
                                                                      243rd District Court
 CRISPEN HANSON,                                   §
                                 Appellee.                          of El Paso County, Texas
                                                   §
                                                                      (TC# 20120D03212)

                                             OPINION

       The State of Texas is appealing from an order of the trial court placing Appellee, Crispen

Hanson, on shock probation.        See TEX.CODE CRIM.PROC.ANN. art. 44.01(a)(2)(West Supp.

2016)(permitting State to appeal an order which arrests or modifies a judgment). Finding that the

State did not timely file its notice of appeal, we dismiss the appeal for lack of jurisdiction.

                                     FACTUAL SUMMARY

       Appellee, Crispen Hanson, was charged by indictment with capital murder (Count I),

murder (Count II), and injury to a child (Counts III and IV) in cause number 20120D03212. The

State dismissed Counts I and II in exchange for Hanson’s plea of guilty to Counts III and IV, and

the trial court assessed Hanson’s punishment in accordance with the plea bargain at imprisonment

for a term of eight years. The judgment included a delayed surrender date of February 2, 2015,

but the trial court granted Hanson’s motion to extend the surrender date to March 16, 2015.

Hanson filed another motion seeking an extension of the surrender date allegedly due for medical
reasons, but the trial court did not conduct a hearing before the surrender date, and Hanson

surrendered himself on March 16, 2015 in compliance with the trial court’s order. Hanson

subsequently filed a motion requesting that he be released on bond. On April 14, 2015, the trial

court entered an order granting Hanson’s motion to be released on bond and releasing Hanson

from custody.

       On May 13, 2015, the State filed a mandamus petition to challenge the order releasing

Hanson order, and we requested that Hanson filed a response no later than July 1, 2015. See In re

State of Texas, cause no. 08-15-00161-CR. On June 11, 2015, the trial court filed a document

titled “Sua Sponte Motion to Hold a Hearing to Determine Whether to Suspend the Remainder of

the Defendant’s Prison Sentence and Place the Defendant on Community Supervision.” Following

a hearing, the court entered an order on June 15, 2015, suspending further imposition of Hanson’s

prison sentence and placing him on shock probation. The order included findings of fact, seven

numbered paragraphs setting forth applicable law, and three concluding paragraphs addressing the

trial court’s conclusion that Hanson qualified for community supervision. On that same date, the

trial court entered an amended judgment of conviction reflecting that Hanson had been placed on

community supervision for eight years. Further, the trial court signed an order on June 15, 2015

establishing the terms and conditions of community supervision. The court signed on amended

order on June 25, 2015 which included fourteen additional findings of fact not contained in the

June 15, 2015 order, but the amended order did not include any substantive changes. The State

filed written notice of appeal on July 13, 2015.

                                         JURISDICTION

       Hanson contends in his brief that the appeal should be dismissed for lack of jurisdiction

because the State did not file its notice of appeal within twenty days after the trial court signed the



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June 15, 2015 order. The State responds that it is appealing the amended order signed by the trial

court on June 25, 2015, not the June 15, 2015 order, because the amended order replaced the earlier

order and re-started the appellate timetable.

       Under Article 44.01(a)(2), the State is permitted to appeal an order which arrests or

modifies a judgment. See TEX.CODE CRIM.PROC.ANN. art. 44.01(a)(2). Because an order granting

shock probation modifies the judgment of conviction, the State has a right to appeal the order under

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

prosecuting attorney must file the notice of appeal no later than twenty days after the date on which

the order, ruling, or sentence to be appealed is entered by the court.               See TEX.CODE

CRIM.PROC.ANN. art. 44.01(d); TEX.R.APP.P. 26.2(b)(“The notice of appeal must be filed within

20 days after the day the trial court enters the order, ruling, or sentence to be appealed.”). The

appellate timetable begins to run on the date the trial judge signs the order. See State v.

Wachtendorf, 475 S.W.3d 895, 897 (Tex.Crim.App. 2015); State v. Rosenbaum, 818 S.W.2d 398,

402 (Tex.Crim.App. 1991); State ex rel. Sutton v. Bage, 822 S.W.2d 55, 57 (Tex.Crim.App. 1992).

The deadline established by Article 44.01(d) is more than a mere procedural deadline; it is a

substantive limit on the State’s authority to appeal. State v. Rollins, 4 S.W.3d 453, 454 (Tex.App.-

-Austin 1999, no pet.), citing State v. Muller, 829 S.W.2d 805, 812 (Tex.Crim.App. 1992).

       In his notice of appeal, the District Attorney expressly stated that he was appealing the trial

court’s amended order dated June 25, 2015. The record shows, however, that the trial court

modified Hanson’s sentence on June 15, 2015 by entering the order granting shock probation and

by signing an amended judgment placing him on community supervision for eight years. While

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



                                                -3-
order placing Hanson on community supervision for eight years.

         The issue before us is whether the entry of the amended shock probation order re-started

the appellate timetable. Citing several civil cases, the State argues that the amended shock

probation order replaced or superceded the June 15, 2015 order, and therefore, the appellate

timetable re-started on June 25, 2015 with the entry of the amended order.1 The Rules of Civil

Procedure and the Rules of Appellate Procedure contain rules addressing when the appellate

timetable begins to run in a civil case, and a body of law applying these rules and related concepts

has developed. See TEX.R.CIV.P. 306a, 329b; TEX.R.APP.P. 4.3. These rules and concepts are not

applicable to a criminal appeal by either the defendant or the State.2

         The June 15, 2015 shock probation order modified the judgment of conviction and it is this

modification of the final judgment of conviction which gives rise to the State’s right to appeal

under Article 44.01(a)(2). The trial court entered an amended judgment of conviction on June 15,

2015 to reflect the modification and the court also signed orders establishing the terms and

conditions of community supervision on that same date. The amended shock probation order

signed by the trial court on June 25, 2015 added findings of fact, but it did not modify the amended

judgment of conviction in any way. Under the unique facts of this case, we conclude that the

appellate timetable began running on June 15, 2015 when the trial court modified the final



1
  The State cites Check v. Mitchell, 758 S.W.2d 755 (Tex. 1988), City of West Lake Hills v. State ex rel. City of
Austin, 466 S.W.2d 722 (Tex. 1981), Black v. Shor, 443 S.W.3d 170 (Tex.App.--Corpus Christi 2013, no pet.), and
Ferguson v. Naylor, 860 S.W.2d 123 (Tex.App.--Amarillo 1993, writ denied).

2
   For example, the State relies on the Supreme Court’s decision in Check v. Mitchell which holds that “any change,
whether or not material or substantial, made in a judgment while the trial court retains plenary power, operates to
delay the commencement of the appellate timetable until the date the modified, corrected or reformed judgment is
signed.” Check, 758 S.W.2d at 756. In reaching this conclusion, the Texas Supreme Court applied Texas Rule of
Civil Procedure 329b(h) which provides that “[i]f a judgment is modified, corrected or reformed in any respect, the
time for appeal shall run from the time the modified, corrected, or reformed judgment is signed….” TEX.R.CIV.P.
329b(h). Rule 329b is inapplicable to criminal cases, and the Code of Criminal Procedure does not contain a similar
provision. Consequently, Check v. Mitchell is not controlling and it does not assist our analysis of the jurisdictional
issue presented here.

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judgment of conviction, and the entry of the amended shock probation order did not re-start the

appellate timetable. Under Article 44.01(d), the State’s notice of appeal was due to be filed no

later than July 5, 2015. The notice of appeal filed on July 13, 2015 was untimely. Accordingly,

we dismiss the appeal for lack of jurisdiction.



                                              ANN CRAWFORD McCLURE, Chief Justice
July 26, 2017

Before McClure, C.J., Rodriguez, and Hughes, JJ.
Hughes, J., not participating

(Do Not Publish)




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