                                MEMORANDUM OPINION
                                        No. 04-11-00154-CR

                                         Mary ROBERTS,
                                            Appellant

                                                 v.

                                       The STATE of Texas,
                                             Appellee

                     From the 226th Judicial District Court, Bexar County, Texas
                                  Trial Court No. 2006CR6404A
                              Honorable Sid L. Harle, Judge Presiding

PER CURIAM

Sitting:          Karen Angelini, Justice
                  Sandee Bryan Marion, Justice
                  Phylis J. Speedlin, Justice

Delivered and Filed: May 25, 2011

DISMISSED FOR LACK OF JURISDICTION

           On February 21, 2008, Appellant Mary Roberts (“Roberts”) was convicted of five counts

of theft by coercion or deception and was sentenced to ten years’ imprisonment, to run

concurrently on all counts. The judgments for each count reflect that her sentence was then

suspended and that she was placed on community supervision. Additionally, the judgments

reflect that no restitution was ordered. Also on February 21, 2008, the trial court signed an order

imposing terms and conditions of her community supervision. Roberts appealed and requested
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that these terms and conditions be held in abeyance pending her appeal, a request that the trial

court granted because Roberts filed an appellate bond. On March 17, 2010, this Court affirmed

the judgments of the trial court. See Roberts v. State, 319 S.W.3d 37 (Tex. App.—San Antonio

2010, pet. ref’d).

        On February 11, 2011, the trial court signed an order modifying the terms and conditions

of Roberts’s community supervision. As part of the new terms and conditions, Roberts was

ordered jointly and severally responsible with the defendant in Trial Court Cause Number

2006CR6404B, Ted Roberts, to make a donation of $70,000.00 to a children’s charity. Roberts

then filed a notice of appeal, seeking to appeal this order by the trial court requiring her to donate

to a children’s charity. However, we have no jurisdiction over this appeal.

        In Basaldua v. State, 558 S.W.2d 2, 5 (Tex. Crim. App. 1977), the Texas Court of

Criminal Appeals held there was no constitutional or statutory authority permitting a direct

appeal from an order modifying or refusing to modify probationary conditions. A defendant may

appeal the judgment at the time she is first placed on community supervision. TEX. CODE CRIM.

PROC. ANN. art. 42.12, § 23(b). A defendant may also appeal her revocation of community

supervision when she is notified of the decision to revoke and “is called on” to serve a sentence

in jail or in the institutional division of the Texas Department of Criminal Justice. Id. However,

modification of community supervision is not appealable at the time of modification. Basaldua,

558 S.W.2d at 5. Here, Roberts’s community supervision has not been revoked. And, she cannot

appeal from a trial court order modifying the terms and conditions of her community

supervision. See id.; Ruiz v. State, No. 10-00576-CR, 2010 WL 3511534, at *1 (Tex. App.—San

Antonio 2010, no pet.).




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        Roberts argues that we do have appellate jurisdiction pursuant to the Texas Court of

Criminal Appeals’s holding in Bailey v. State, 160 S.W.3d 11 (Tex. Crim. App. 2004). However,

Bailey is distinguishable from the present case. In Bailey, 160 S.W.3d at 12, the appellant pled

guilty to an offense on February 21, 2001; that same day, the trial court assessed punishment at

five years; suspended the appellant’s sentence; placed the appellant on community supervision

for ten years; and imposed general conditions of community supervision. However, because the

trial court wished to consider the State’s request for restitution, it reset the case for a hearing on

March 12, 2001. Id. At that March 12th restitution hearing, the trial court ordered that the

appellant was required to make restitution payments to the victim as a condition of community

supervision. Id. On April 4, 2001, the appellant filed a notice of appeal. Id. Noting that the notice

of appeal had been filed more than thirty days after the February 21, 2001, hearing imposing the

appellant’s sentence, the Fourteenth Court of Appeals dismissed the appeal as being untimely

filed. Id. at 12-13. The court of criminal appeals reversed, explaining the appellant’s full

sentence had not been imposed until the March 12, 2001, restitution hearing. Id. at 14. The court

of criminal appeals distinguished the case from its previous holding in Basaldua, noting that

because the appellant’s sentence was not complete until the restitution hearing, the order being

appealed from was not an order modifying the terms and conditions of community supervision.

Id. at 14.

        The court of criminal appeals then distinguished a case from this court, Dodson v. State,

988 S.W.2d 833 (Tex. App.—San Antonio 1999, no pet.), in which this court held that it did not

have jurisdiction to hear an appeal from the denial of a motion for shock probation. According to

the court of criminal appeals, “Dodson is not decisive for the same reasons that Basaldua is not

decisive: In appellant’s case, no modification was being made to an existing order; rather the



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sentencing was not complete until the restitution hearing.” Bailey, 160 S.W.3d at 14 (emphasis in

original). Here, however, there was an existing order dated February 21, 2008, that set the terms

and conditions of Roberts’s community supervision. It was that order that Roberts requested the

trial court to abate pending her appeal. Thus, the February 11, 2011, order signed by the trial

court is a modification to an existing order, and under Basaldua, we have no jurisdiction over an

appeal from such an order. 1

        Roberts also argues that we have jurisdiction over this appeal because the trial court, by

requiring her to pay restitution in the order modifying the terms and conditions of her community

supervision, violated her constitutional rights. We disagree. Pursuant to Basaldua, 558 S.W.2d at

5, we have no jurisdiction to hear a direct appeal from an order modifying the terms and

conditions of her community supervision. The procedural vehicle for such a claim is an

application for writ of habeas corpus. See TEX. CODE CRIM. PROC. ANN. art. 11.072, § 2(b)(2)

(allowing applicant to challenge the legal validity of the conditions of community supervision);

see also id. § 3(c) (“An applicant may challenge a condition of community supervision under this

article only on constitutional grounds.”).

        For the reasons stated above, we dismiss this appeal for lack of jurisdiction.


                                                         PER CURIAM


Do not publish


        1
           We note that under Roberts’s argument, her previous appeal, see Roberts v. State, 319 S.W.3d 37 (Tex.
App.—San Antonio 2010, pet. ref’d), would be a nullity, because her sentence was not complete until the trial court
ordered restitution as a part of the terms and conditions of community supervision in 2011. In Bailey, the court of
criminal appeals commented on the absurdity of such an argument when distinguishing the case, Jones v. State, 680
S.W.2d 580 (Tex. App.—Beaumont 1984, no pet.), from the facts presented in Bailey: “Jones gives little guidance
to appellant’s situation, however, because the case concerned an amendment to a probation order, just as in
Basaldua and Dodson. It can hardly be argued that the restitution hearing in Jones, held almost a year after the
written community supervision order, was a continuation of the original sentencing.” Bailey, 160 S.W.3d at 15.


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