Opinion
NO. 14-17-00544-CR
03-27-2018
MANDIS BIATOR, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the County Criminal Court at Law No. 4 Harris County, Texas
Trial Court Cause No. 1984152
MEMORANDUM OPINION
Appellant, Mandis Biator, attempts to appeal an order affecting her community supervision. We dismiss the appeal for lack of jurisdiction.
Appellant pleaded guilty to the offense of prostitution. On June 10, 2015, the trial court deferred adjudication, placed her on community supervision for six months, and assessed a $200 fine. The trial court extended the term of appellant's community supervision on three different occasions. On June 27, 2017, the trial court held a hearing and entered an "Order Affecting Community Supervision," which discharged appellant's community supervision. The order noted that the term of community supervision ended June 9, 2017, and the period having expired, the defendant was discharged by operation of law. At the hearing, the trial court noted that appellant was charged with driving while intoxicated on May 29, 2017, before the expiration of her term of community supervision. In the June 27, 2017 order, the trial court included the handwritten notation "unsatisfactory [sic] terminated."
Appellant filed a notice of appeal of the trial court's June 27, 2017 order. In her sole issue on appeal appellant contends the trial court lacked jurisdiction "to unsatisfactorily terminate" her community supervision because it had terminated by operation of law on June 9, 2017. The State responds arguing this court does not have appellate jurisdiction over the trial court's order terminating community supervision.
Generally, a criminal defendant may only appeal from a final judgment. See State v. Sellers, 790 S.W.2d 316, 321 n. 4 (Tex. Crim. App. 1990). The exceptions include: (1) appeal of the revocation of community supervision, and (2) appeal of the adjudication of guilt. See Tex. Code Crim. Proc. art. 42.12, § 23(b) ("When [the defendant] is notified that his community supervision is revoked for violation of the conditions of community supervision and he is called on to serve a sentence in a jail or in the Texas Department of Criminal Justice, he may appeal the revocation."). A direct appeal is not permitted from an order affecting community supervision. See Tex. Code Crim. Proc. Ann. art. 44.02 (West 2015) (permitting appeals from final conviction); Tex. R. App. P. 25.2(a)(2) (stating that "[a] defendant in a criminal case has the right of appeal under Code of Criminal Procedure article 44.02 and these rules"); Rabbani v. State, 494 S.W.3d 778, 780 (Tex. App.—Houston [14th Dist.] 2016, pet. ref'd) (holding that an appeal from an interlocutory order denying a motion to withdraw guilty plea is not authorized by law).
Article 42.12 of the Code of Criminal Procedure was repealed effective September 1, 2017, and replaced with article 42A.001. We cite the relevant code section in effect at the time appellant's community supervision was terminated.
Appellant relies on Ex parte Moss, 446 S.W.3d 786, 791 (Tex. Crim. App. 2014) for the proposition that the trial court lost jurisdiction to determine that appellant's community supervision was "unsatisfactorily terminated." In Moss, the court held that for a trial court to have jurisdiction to adjudicate the guilt of a defendant who was on community supervision, both the motion to revoke and capias for arrest must be issued before the termination of the probationary period. Id. at 791. However, the trial judge in this case did not adjudicate appellant's guilt. It instead issued an order terminating appellant's community service. Because this appeal does not fall within the exceptions to the general rule that appeal may be taken only from a final judgment of conviction, we have no jurisdiction. See Rabbani, 494 S.W.3d at 780-81.
Accordingly, the appeal is ordered dismissed.
PER CURIAM Panel consists of Chief Justice Frost and Justices Christopher and Jamison.
Do Not Publish — TEX. R. APP. P. 47.2(b).