Motion for Rehearing Denied; Memorandum Opinion Issued April 25, 2013
Withdrawn; Dismissed and Substitute Memorandum Opinion filed May 30,
2013.




                                       In The

                     Fourteenth Court of Appeals

                               NO. 14-12-00409-CR

                ANTHONY LAWRENCE TAYLOR, Appellant
                                         V.

                       THE STATE OF TEXAS, Appellee

                     On Appeal from the 23rd District Court
                           Brazoria County, Texas
                         Trial Court Cause No. 47389

     SUBSTITUTE MEMROANDUM OPINION

      We order our memorandum opinion issued April 25, 2013, withdrawn and
issue this substitute memorandum opinion.         We deny appellant’s motion for
rehearing as moot.

      Appellant Anthony Lawrence Taylor challenges his conviction for sexual
assault of a child, alleging that the State’s motion to adjudicate his guilt was filed
after his period of deferred adjudication ended. Thus, he asserts that the trial court
lacked jurisdiction to revoke his community supervision, find him guilty of the
original offense, and sentence him to ten years’ confinement. We dismiss this
appeal for want of jurisdiction because appellant actually attempts to challenge on
direct appeal an earlier order modifying the conditions of his community
supervision.

                                       BACKGROUND

       On August 25, 2005, appellant pleaded guilty to the offense of sexual assault
of a child. Pursuant to a plea agreement, he was placed on five years’ deferred-
adjudication community supervision, which was initially set to expire on August
25, 2010. In June 2006, the State filed a motion to adjudicate his guilt; appellant
was arrested in late July 2006. Nothing in our record indicates that appellant either
was released on bail or filed a motion to be brought before the judge for a hearing
on the alleged violations.1          The State filed a motion to amend appellant’s
community supervision on September 28, 2006, seeking to extend the probationary
period for two years, and a motion to dismiss its June 2006 motion to adjudicate
guilt.2 That same day, the trial court entered orders extending appellant’s period of

       1
         See Tex. Code Crim. Proc. art. 48.12, §21(b) (requiring that arresting officer or person
with custody of arrested person “not later than 48 hours after the person is arrested” take him
before judge who ordered arrest or a magistrate and providing that only judge who ordered arrest
for alleged violation of community supervision may authorize defendant’s release on bail),
§21(c) (“If the defendant has not been released on bail . . . , on motion by the defendant the judge
who ordered the arrest for the alleged violation of a condition of community supervision shall
cause the defendant to be brought before the judge for a hearing on the alleged violation within
20 days of filing of said motion[.]” (emphasis added).). “Th[is] statutory scheme clearly
contemplates that, after arrest, the defendant carries the ‘burden of pursuing a prompt hearing.’”
Ballard v. State, 126 S.W.3d 919, 921 (Tex. Crim. App. 2004). Here, the record does not reflect
that appellant carried that burden.
       2
        See Tex. Code Crim. Proc. art. 48.12, §22(c) (permitting a judge to extend a period of
community supervision on a showing of good cause “as often as the judge determines is
necessary” during the period of community supervision). This section of the Code of Criminal
Procedure has been interpreted to permit a trial court to extend a probationer’s period of
community supervision with or without a revocation motion and with or without a hearing. See
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community supervision until August 25, 2012, and dismissing the State’s motion to
adjudicate guilt.

       On appellant’s application, the trial court ordered appellant’s community
supervision amended on November 16, 2006, permitting him to move residences
and report to a Community Supervision Officer in Smith County, Texas. On June
29, 2007, the trial court again amended appellant’s community supervision,
ordering appellant to submit to a period of detention of six days in the Brazoria
County, Texas jail based on a violation of one of the conditions of his community
supervision. On that same date, the trial judge ordered appellant to complete 48
hours of community service in lieu of the six days of confinement. On August 30,
2007, a report of violation of community supervision was filed with the Brazoria
County court, alleging several violations of appellant’s community supervision.
The trial court ordered a summons issued to appellant, commanding him to appear
on September 27, 2007, so that the court could determine whether appellant’s
community supervision should be amended or a “motion to revoke” his community
supervision should be filed. On November 30, 2007, the State filed another motion
to adjudicate appellant’s guilt. Also on November 30, the trial court issued a
capias order for appellant’s arrest. Appellant was arrested on December 4, 2007,
and he posted bond that same day. After two resets, the trial court heard this
motion in late May 2008. On May 30, 2008, the trial court entered an order
amending appellant’s community supervision, extending it until August 25, 2013.

       On December 19, 2011, the State again filed a motion to adjudicate guilt.
Appellant was arrested on January 5, 2012 pursuant to the trial court’s order. The

Tex. Code Crim. Proc. art. 42.12, § 22(c); see also Calderon v. State, 75 S.W.3d 555, 561 (Tex.
App.—San Antonio 2002, pet. ref’d) (op. on reh’g) (per curiam); Warmoth v. State, 946 S.W.2d
526, 527 (Tex. App.—Fort Worth 1997, no pet.); Ex parte Harrington, 883 S.W.2d 396, 400
(Tex. App.—Fort Worth 1994, pet. ref’d).

                                              3
trial court heard the State’s motion to adjudicate appellant’s guilt on March 21 and
22, 2012. Appellant pleaded “true” to five of the alleged violations. The trial
court found twenty of the alleged violations to be true. The trial court found
appellant guilty of the original charge and sentenced him to ten years’
confinement. This appeal timely ensued.

                                          ANALYSIS

       Appellant contends in his sole issue on appeal that the State’s motion to
adjudicate guilt was filed after his community supervision period expired.
Appellant’s issue rests on the underlying premise that the September 28, 2006
extension of his community supervision, described above, was “unlawful and
void.”3 He asserts that this extension was void because he had been arrested and
was incarcerated at the time the trial court extended his community supervision,
and the trial court failed to provide a hearing or ensure that he was represented by
counsel as required by article 42.12 of the Texas Code of Criminal Procedure.4
Effectively, appellant is attempting to attack by direct appeal that order modifying
the terms of his community supervision.5


       3
         Appellant never raised this complaint before the trial court. See Lovill v. State, 319
S.W.3d 687, 691–92 (concluding that appellant did not preserve selective prosecution complaint
made on appeal from revocation of deferred-adjudication community supervision by failing to
bring complaint to trial court’s attention in a timely and specific manner). Moreover, appellant
has not explained why the trial court lacked authority to extend his community supervision under
section 22(c) of article 42.12, which, as noted above, does not require the trial court to conduct a
hearing.
       4
         The record contains a reset form, filed August 31, 2006, resetting appellant’s case for
“PreTrial” to September 28, 2006. This reset form is signed by both appellant and his attorney
and was approved by the trial court. Thus, it appears that appellant was represented by counsel
during the relevant time period.
       5
         We note that, had the trial court adjudicated appellant’s guilt on September 26, 2006,
rather than extending his period of community supervision, appellant would have had no right of
appeal of that determination. See Davis, 195 S.W.3d at 711–12 (determining that, under
language of section 5 of Code of Criminal Procedure article 42.12 in effect in 2006, “the
                                                 4
       Some aspects of a deferred adjudication proceeding are appealable and some
are not. We therefore must sort through various rulings a trial court may make in
the course of a deferred adjudication proceeding to determine which are
appealable. Davis v. State, 195 S.W.3d 708, 710 (Tex. Crim. App. 2006). A trial
court’s order extending community supervision is a modification of the conditions
of community supervision. See Tex. Code Crim. Proc. art. 42.12, §§ 22(a)(2), (c);
22A(a), (b). There is no statutory authority for entertaining a direct appeal from an
order modifying the conditions of community supervision. Davis, 195 S.W.3d at
710; Prevato v. State, 77 S.W.3d 317, 318 n.2 (Tex. App.—Houston [14th Dist.]
2002, no pet.); Christopher v. State, 7 S.W.3d 224, 225 (Tex. App.—Houston [1st
Dist.] 1999, pet. ref’d). As a result, we lack jurisdiction over this appeal, which, as
noted above, is in actuality a challenge to the trial court’s September 28, 2006
order modifying the terms of appellant’s community supervision.6                                See
Christopher, 7 S.W.3d at 225.


Legislature has specifically barred appeal from the determination to adjudicate” and concluding
that even jurisdictional attacks on trial court’s adjudication could not be advanced on appeal).
The Legislature has since modified this section, permitting review of determinations to
adjudicate guilt “in the same manner as a revocation hearing under Section 21 of this article in a
case in which an adjudication of guilt has not been deferred.” Tex. Code Crim. Proc. art. 42.12,
§ 5(b).
       6
         Appellant cites Ex parte Fulce, 993 S.W.2d 660, 661–62 (Tex. Crim. App. 1999), to
support his argument that the trial court lacked jurisdiction to adjudicate his guilt. First, we note
that Fulce involved a post-conviction application for a writ of habeas corpus, rather than a direct
appeal. Id. at 661. Second, in Fulce, the applicant’s community supervision was set to expire on
February 18, 1996. See id. The trial court entered an order on March 17, 1995 that imposed a
special condition, but it did not extend the period of his community supervision. Id. On July 3,
1996, the trial court entered an order extending his community supervision by one year and on
December 3, 1996 entered another order extending it to February 18, 1998. Id. The trial court
revoked his community supervision on August 22, 1997. Id. The Court of Criminal Appeals
held that, even if the March 17, 1995 order imposing the special condition extended the
applicant’s period of community supervision by the statutory maximum permissible period of
one year, the later extension orders “were entered well after applicant’s community supervision
expired.” See id. at 661–62. The Fulce court concluded that the revocation of his community
supervision was a “nullity.” Id. at 662. Fulce is distinguishable not only because it involved a
                                                 5
                                     CONCLUSION

       Appellant has couched his appeal as an attack on the trial court’s jurisdiction
to adjudicate his guilt. But the resolution of his complaint hinges on the validity of
the trial court’s September 28, 2006 order modifying the conditions of his
community supervision. We lack jurisdiction to entertain a direct appeal from an
order modifying the conditions of community supervision.                  Accordingly, we
dismiss this appeal.




                                           /s/       William J. Boyce
                                                     Justice

Panel consists of Justices Frost, Boyce, and Donovan.
Do Not Publish — Tex. R. App. P. 47.2(b).




post-conviction writ, but also because the trial court attempted to extend the applicant’s
community supervision after it had expired. See id. Neither of these factors are present here;
thus, Fulce provides no support for appellant’s position.

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