
 


 






IN THE COURT OF CRIMINAL APPEALS

OF TEXAS





NO. PD-1816-07


JOHNNY RAY ABBOTT, Appellant

v.

 
THE STATE OF TEXAS




ON STATE'S PETITION FOR DISCRETIONARY REVIEW
FROM THE TENTH COURT OF APPEALS

ELLIS COUNTY



Hervey, J., delivered the opinion for a unanimous Court.  Holcomb, J., filed a
concurring opinion.  

O P I N I O N


	In this case, the court of appeals addressed the merits of appellant's appeal from the trial
court's post-judgment order denying appellant's request for a time credit on his 180-day
incarceration in a county jail as a condition of his community supervision. (1)  We decide that the court
of appeals should have dismissed the appeal for lack of jurisdiction.
	Appellant was convicted of indecency with a child and received a twenty-year prison
sentence, which appellant began serving on May 25, 2005.  On June 7, 2006, this prison sentence
was overturned on direct appeal, with a new punishment hearing ordered.  By June 4, 2007, appellant
had been returned to the Ellis County jail from prison at which time he was released on bond pending
the new punishment hearing. (2) See Abbott, 245 S.W.3d at 20.  At the new punishment hearing on
August 16, 2007, a jury sentenced appellant to ten years in prison on the indecency conviction and
recommended that this sentence "be suspended subject to community supervision."
	The trial court's judgment, dated August 16, 2007, "adjudged [appellant] guilty" of the
indecency offense and ordered that appellant be placed on community supervision for ten years
commencing on that day "subject to the conditions of supervision imposed by the Court and served
on the Defendant."  This judgment also recites that appellant's sentence was imposed on August 16,
2007.  The trial court signed another order on August 16, 2007, setting out the conditions of
appellant's community supervision.  One of these conditions required appellant to "[r]emain under
custodial supervision and serve 180 days in the Ellis County Wayne McCollum Detention Center"
beginning on August 18, 2007. (3)  This condition further recited that appellant "shall be credited with
0 days" on this 180-day incarceration.
	On August 24, 2007, appellant filed a motion in the trial court seeking a time credit on this
180 days for the approximately two years of his "previous confinement time." (4)  The State's response
to this motion asserted that appellant is not entitled to any credit on this 180 days, because, as a
condition of appellant's community supervision, this 180 days is not considered part of appellant's
sentence for purposes of Article 42.03, § 3. (5)  The State's response further asserted that appellant will
be entitled to this credit if "his community supervision is revoked and he is ordered to serve a prison
sentence."  The State's response asserted:
	In this case, Defendant was originally sentenced within the allowable range of
punishment.  He has not been penalized for filing an appeal.  The time he served in
prison will be credited when his community supervision is revoked and he is ordered
to serve a prison sentence.  In fact, one must wonder whether Defendant will, should
his request for credit toward the condition of community supervision be granted now,
argue upon revocation that the time he previously served in prison should also count
toward his sentence.  Just as Defendant will not be entitled to time toward his
sentence for the time he will serve as a condition of community supervision, he is not
now entitled to the reverse.  This Court has not abused its discretion in declining to
grant Defendant time credit toward his condition of community supervision.
 
	On September 7, 2007, the trial court signed an order denying appellant's time-credit motion. 
On Tuesday, September 18, 2007, appellant filed a notice of appeal from this order (the clerk's file-stamp indicates that this notice of appeal was filed on September 18, 2007, at 2:45 p.m., while the
certificate of service on the notice of appeal indicates that it was sent to opposing counsel on
September 17, 2007). (6)
	The court of appeals, with one justice dissenting, decided that it had jurisdiction to consider
the merits of appellant's appeal and that the trial court should have granted appellant credit for the
time previously served.  See Abbott, 245 S.W.3d at 20-23. (7)  We granted review.  The grounds upon
which we granted review present the following issues:
	1. Did the Tenth Court of Appeals have jurisdiction to consider an appeal from the
order denying time credit?

	2. Did the Tenth Court of Appeals err in determining that the trial court was without
discretion to deny credit for the time served on the original sentence toward the days
ordered as a condition of community supervision after retrial?

	The court of appeals decided that it had jurisdiction to decide the merits of appellant's appeal
from the trial court's post-judgment order denying his time-credit motion, because there was no
"statute or rule precluding" the appeal.  See Abbott, 245 S.W.3d at 20.  This, however, is not the
standard for determining jurisdiction.  The standard for determining jurisdiction is not whether the
appeal is precluded by law, but whether the appeal is authorized by law.  See Tex. Const. art. V,
§ 6(a), (providing that courts of appeals "shall have appellate jurisdiction co-extensive with the
limits of their respective districts, which shall extend to all cases of which the District Courts or
County Courts have original or appellate jurisdiction, under such restrictions and regulations as may
be prescribed by law" and "[s]aid courts shall have such other jurisdiction, original and appellate,
as may be prescribed by law"); Article 44.02, Tex. Code Crim. Proc., ("[a] defendant in any
criminal action has the right of appeal under the rules hereinafter prescribed"); Tex. R. App. Proc.
25.2(a)(2) (a defendant "has the right of appeal under Code of Criminal Procedure article 44.02 and
these rules" in every case in which the trial court "enters a judgment of guilt or other appealable
order"); McIntosh v. State, 110 S.W.3d 51, 52 (Tex.App.-Waco 2002, no pet.) (a defendant has right
to appeal from a final judgment of conviction or when "expressly granted by law") (internal quotes
omitted); Abbott, 245 S.W.3d at 23 (Gray, J., dissenting) (courts of appeals have no appellate
jurisdiction in criminal matters "absent a specific authorization by law"). (8)
	In this case, we have not found any rule or any statutory or constitutional provision that
would authorize appellant's appeal from the trial court's post-judgment order denying his time-credit
motion.  See Staley v. State, 233 S.W.3d 337, 338 (Tex.Cr.App. 2007) (dismissing the defendant's
appeal because it was not authorized by law).  The court of appeals, therefore, lacked jurisdiction
to decide the merits of appellant's appeal.  See id.; Abbott, 245 S.W.3d at 23 (Gray. J., dissenting). (9)
	The judgment of the court of appeals is reversed, and the case is remanded there for further
proceedings consistent with this opinion.

								Hervey, J.
 
Delivered: September 10, 2008
Publish
1. 	See Abbott v. State, 245 S.W.3d 19 (Tex.App.-Waco 2007).
2. 	This was over two years after appellant began serving his prison sentence on May 25, 2005. 
The record is silent on exactly when appellant was returned to the Ellis County jail for a new
punishment hearing. 
3. 	We note that, under state law, appellant apparently would not be entitled to credit for these
180 days on any prison sentence that he might receive on his indecency conviction in the event that
his community supervision for that conviction is revoked.  See Article 42.03, § 2(a), Tex. Crim.
Proc., (providing for credit on a defendant's sentence "for the time that the defendant has spent in
jail in said cause, other than confinement served as a condition of community supervision, from the
time of his arrest and confinement until his sentence by the trial court") (emphasis supplied); Ex
parte Harris, 946 S.W.2d 79, 80-81 (Tex.Cr.App. 1997).  
4. 	This motion alleged that appellant was entitled to this time credit pursuant to Article 42.03,
§ 3, Tex. Code Crim. Proc., which provides that the trial judge in the convicting court shall give
a defendant credit on his "sentence" for time that the defendant spent in "jail" pending disposition
of an appeal.  Appellant's motion further alleged that denial of the time credit would also be contrary
to constitutional caselaw and Due Process.
5. 	See Speth v. State, 6 S.W.3d 530, 532 (Tex.Cr.App. 1999) ("community supervision is not
a sentence or even a part of a sentence").
6. 	Appellant's Tuesday, September 18, 2007 notice of appeal does not purport to appeal from
the trial court's August 16, 2007 judgment placing appellant on community supervision "subject to
the condition[]of supervision" that appellant serve 180 days as a condition of his community
supervision with no time credits.  See Collins v. State, 240 S.W.3d 925, 928 (Tex.Cr.App. 2007)
("credit for time served" is an element of the judgment).  We further note that such a notice of
appeal, filed more than 30 days after appellant's sentence was imposed on August 16, 2007, would
not have been timely.  See Tex. R. App. Proc. 4.1(a); 26.2(a)(1).
7. 	The court of appeals remanded the case "to the trial court with the instructions to apply
Abbott's prison time served as a credit toward the 180-day confinement as a condition of community
supervision and, because that credit greatly exceeds 180 days, to immediately release Abbott from
jail."  See Abbott, 245 S.W.3d at 23.
8. 	In Sellers v. State, this Court noted the long-established rule that a defendant's general right
to appeal under Article 44.02 "has always been limited to appeal" from a "final judgment."  See
Sellers v. State, 790 S.W.2d 316, 321 n.4 (Tex.Cr.App. 1990) (internal quotes omitted).
9. 	We note that the court of appeals relied on the published decision in Watson in support of
its decision that it had jurisdiction to decide the merits of appellant's appeal from the trial court's
post-judgment order denying his time-credit motion.  See Abbott, 245 S.W.3d at 20.  Unlike this
case, however, Watson involved an appeal from the trial court's judgment reflecting "no credit for
time served pending the appeal."  See Watson, 942 S.W.2d at 724; see also Sellers, 790 S.W.2d at
321 n.4 (defendant's general right to appeal under Article 44.02 has always been limited to appeal
from a "final judgment").  In addition, the issue of the court of appeals' jurisdiction was neither
raised nor addressed in Watson.  The court of appeals also relied on a published decision in Jackson
v. State, 990 S.W.2d 879, 882 (Tex.App.-Beaumont 1999, no pet.).  See Abbott, 245 S.W.3d at 21. 
Jackson, however, also involved an appeal from the trial court's judgment with the issue of the court
of appeals' jurisdiction not being raised or addressed.
