                                  IN THE
                          TENTH COURT OF APPEALS

                                 No. 10-15-00263-CR

FERNANDO SMITH,
                                                             Appellant
v.

THE STATE OF TEXAS,
                                                             Appellee


                           From the 52nd District Court
                              Coryell County, Texas
                              Trial Court No. 20141


                                     OPINION

       Fernando Smith pled guilty to the offense of Assault by Occlusion. See TEX. PENAL

CODE ANN. § 22.01(a)(1), (b)(2)(B) (West 2011). The trial court deferred a finding of guilt

and placed Smith on deferred adjudication community supervision for five years.

Ultimately, the trial court adjudicated Smith guilty and sentenced him to prison for five

years. Five months later, the trial court granted Smith’s motion for “shock probation”

and returned Smith to community supervision for two years. After reviewing the record

and case law, we dismiss this appeal for want of jurisdiction.
BACKGROUND

        After several modifications to Smith’s community supervision, including an

extension of supervision for an extra year, the State filed a Motion to Adjudicate Guilt

and Revoke Community Supervision. A contested hearing was held over a period of

several days, and on May 29, 2015, the trial court found Smith violated three terms of his

community supervision, adjudicated Smith guilty, and sentenced Smith to five years in

prison. Smith timely filed a motion for new trial and a notice of appeal to this judgment.

We received this notice of appeal on July 28, 2015 and docketed it as case number 10-15-

00263-CR.

        Five months after Smith was sentenced, and three months after the appeal was

docketed, the trial court, on Smith’s motion, placed Smith on community supervision,

probated his five year sentence for two years, and continued the pervious terms and

conditions including any monetary amounts owed.1 A new judgment was prepared and

signed by the trial court on October 14, 2015. No new notice of appeal from this judgment

was filed.

        This case has been pending for quite some time. Briefing was completed and the

appeal was placed at issue in late May of 2016. We note that in his appellate brief, Smith



1
  This action is termed “shock probation” and is authorized by Article 42.12, sec. 6 of the Texas Code of
Criminal Procedure. This case is, however, the only case we have been able to find in which there was
effectively a new sentencing hearing and an entirely new and complete judgment signed by the trial court
rather than merely an order that suspended the sentence set out in the prior judgment and enunciated the
conditions of community supervision. This makes the issues cleaner and easier to address and very
different from the issue as addressed in Shortt v. State, No. 05-13-01639-CR, 2015 Tex. App. LEXIS 4808 (Tex.
App.—Dallas May 12, 2015, pet. granted) and the first issue in the petition for discretionary review in that
appeal which is currently pending before the Court of Criminal Appeals.

Smith v. State                                                                                        Page 2
does not contest his conviction. Rather, he contests the amount of restitution ordered in

the conditions of community supervision imposed by the trial court’s October 2015 shock

probation judgment and two alleged typographical “errors” in that same judgment. This

is not the judgment from which Smith appealed.

NOTICE OF APPEAL

        We questioned our jurisdiction because no new notice of appeal of the “shock

probation” judgment was filed. In response, Smith argues that he was not required to

file a notice of appeal of the shock probation judgment citing Perez v. State and a later

case, Dodson v. State. See Perez v. State, 938 S.W.2d 761, 763 (Tex. App.—Austin 1997, pet.

ref’d); see also Dodson v. State, 988 S.W.2d 833, 834 (Tex. App.—San Antonio 1999, no pet.).

In both cases, after determining the courts did not have jurisdiction of an order granting

or denying shock probation, the courts determined the notices of appeal were untimely.

        In Perez, Perez was convicted and sentenced to 10 years in prison. After the trial

court suspended the further imposition of the sentence and placed him on community

supervision, Perez attempted to appeal one of those terms of community supervision.

On appeal, the court of appeals held that if it were considering the appeal as one from

the judgment of conviction, it was untimely. Perez, 938 S.W.2d at 763. It reasoned that

the conditions of community supervision were not a necessary part of the judgment in

the case because section 6(a) of article 42.12 of the Texas Code of Criminal Procedure (the

shock probation statute) first required the trial court to impose a sentence before it could

consider a motion to suspend the execution of the sentence. Id. Thus, it concluded, the

time to perfect the appeal ran from the date the sentence was imposed, not from the date

Smith v. State                                                                        Page 3
the defendant was informed of the conditions of community supervision. The court in

Dodson followed Perez. We have not found another case that has followed either of these

cases for this proposition.

        Smith further argues that his notice of appeal should be considered a premature

notice of appeal. See TEX. R. APP. P. 27.1(b). He contends that a prematurely filed notice

of appeal could be one that is filed between the conviction and the suspension of the

sentence. However, a prematurely filed notice of appeal has been held to be one that is

filed in the time period after the jury's verdict and before sentence is imposed. Franks v.

State, 219 S.W.3d 494, 497 (Tex. App.—Austin 2007, pet. ref’d). This holding is consistent

with the Rules of Appellate Procedure. TEX. R. APP. P. 27.1(b) (“…a prematurely filed

notice of appeal is effective and deemed filed on the same day, but after, sentence is

imposed or suspended in open court….”). We are not inclined to interpret the rule as

broadly as Smith argues.

APPEAL OF SHOCK PROBATION AND RELATED JUDGMENT

        The State argues that regardless of whether Smith’s notice of appeal is timely as to

the imposition of shock probation, we do not have subject-matter jurisdiction of this

appeal.2 The standard to determine whether an appellate court has jurisdiction to hear

and determine a case is not whether the appeal is precluded by law, but whether the

appeal is authorized by law. Blanton v. State, 369 S.W.3d 894, 902 (Tex. Crim. App. 2012);




2
 In conjunction with filing its brief, the State filed a motion to dismiss asserting we lack jurisdiction to
consider Smith’s appeal, and Smith responded to the motion. We have considered both in resolving this
appeal.

Smith v. State                                                                                       Page 4
Abbott v. State, 271 S.W.3d 694, 696-97 (Tex. Crim. App. 2008). Thus, the State’s argument

is that because there is no statutory authority which authorizes an appeal from the

imposition of shock probation pursuant to article 42.12, section 6 of the Texas Code of

Criminal Procedure, we must dismiss the appeal. See TEX. CODE CRIM. PROC. ANN. art.

42.12, § 6 (West 2006); Perez v. State, 938 S.W.2d 761, 762-63 (Tex. App.—Austin 1997, pet.

ref'd) (dismissing appeal for lack of jurisdiction because defendant cannot appeal an

order granting shock probation); Pippin v. State, 271 S.W.3d 861 (Tex. App.—Amarillo

2008, no pet.) (no jurisdiction to contest conditions of order granting shock probation or

denial of ); see also Houlihan v. State, 579 S.W.2d 213 (Tex. Crim. App. 1979) (dismissing

appeal of order denying motion for shock probation); Roberts v. State, No. 04-10-00558-

CR, 2010 Tex. App. LEXIS 8940 (Tex. App.—San Antonio Nov. 10, 2010, pet. ref'd) (not

designated for publication) (dismissing appeal of order altering and amending terms and

conditions of shock probation); Thursby v. State, 05-94-01772-CR, 1997 Tex. App. LEXIS

4378, (Tex. App.—Dallas Aug. 20, 1997, pet. ref'd) (not designated for publication) (no

ability to attack order granting shock probation on appeal of judgment revoking shock

probation).

        The cases the State relies on to assert that no appeal may be taken from shock

probation do not apply to the situation presented in this appeal. In those cases, it was the

decision to grant or deny shock probation or the decision to amend the conditions of

shock probation that was the subject of the appeal or an issue on appeal. Those actions

of the trial court are not ones for which the statute authorizes an appeal. That does not

mean, however, the actual judgment rendered by the trial court after granting a motion

Smith v. State                                                                        Page 5
for shock probation cannot be appealed. It is a criminal judgment; and like any other

criminal judgment which finds the defendant guilty and imposes a sentence, it can be

appealed. See TEX. CODE CRIM. PROC. ANN. art. 44.02 (West 2006); TEX. R. APP. P. 26.2(a).

          A defendant has no way to determine if a motion for shock probation will be

granted. Thus, the defendant necessarily must be cautious and file a notice of appeal if

the defendant has a complaint about the trial court’s first/original judgment. In this case,

that is exactly what Smith did by filing a notice of appeal of the May 29, 2015 judgment.

          If a defendant’s motion for shock probation is granted, as in this case, and it results

in a new judgment and conditions of community supervision, the appeal of the

first/original judgment is moot. Any complaint about the shock probation judgment will

be the subject of an appeal about that judgment. But to complain about that judgment, a

defendant must file a notice of appeal directed at the new judgment.

          In this proceeding, Smith took the cautious route and filed a notice of appeal on

the May 29, 2015 judgment. And when his motion for shock probation was granted and

a new judgment was rendered on October 14, 2015, the appeal of the May 29, 2015

judgment was rendered moot. But Smith failed to file a notice of appeal to complain

about the October 14, 2015 judgment. As is evident from the briefs already on file, it is

the October 14, 2015 judgment about which Smith expressly complains—specifically the

amount of restitution ordered and whether the judgment contains some typographical

errors.

CONCLUSION

          Smith’s appeal of the May 29, 2015 judgment is dismissed because that judgment

Smith v. State                                                                             Page 6
was rendered moot by the October 14, 2015 judgment. We have no notice of appeal from

the October 14, 2015 judgment, and the time to file a notice of appeal has long since

passed. Accordingly, we have no jurisdiction of the complaints raised by Smith, and this

appeal is dismissed.3



                                                 TOM GRAY
                                                 Chief Justice

Before Chief Justice Gray,
       Justice Davis, and
       Justice Scoggins
Appeal dismissed
Motion dismissed as moot
Opinion delivered and filed April 26, 2017
Publish
[CR25]




3
 Because we dismissed this appeal on grounds other than those raised by the State in its motion to dismiss,
the State’s motion to dismiss is dismissed as moot.

Smith v. State                                                                                      Page 7
