Opinion
No. 04-18-00376-CR
07-13-2018
Rodolfo AGUILLON JR., Appellant v. The STATE of Texas, Appellee
From the 227th Judicial District Court, Bexar County, Texas
Trial Court No. 2012CR4534
Honorable Kevin M. O'Connell, Judge Presiding
ORDER
On June 4, 2018, appellant filed a pro se "Motion for Direct Appeal," stating he was appealing errors that could have changed the outcome of his case. In his "Motion for Direct Appeal," appellant references his conviction and sentence in Cause No. 2012 CR 4534. Thereafter, the clerk's record was filed. The clerk's record does not contain a judgment of conviction. Rather, the only order included in the clerk's record is an order denying a "Motion for Shock Probation by Defendant" dated January 6, 2014. Accordingly, it appears appellant seeks to appeal the trial court's order denying his motion for shock probation.
In general, we have jurisdiction to consider an appeal in a criminal case only when there has been a judgment of conviction. Apolinar v. State, 820 S.W.2d 792, 794 (Tex. Crim. App. 1991). The rules of appellate procedure further provide that a criminal defendant has the right to appeal a judgment of guilt or other appealable order. See TEX. R. APP. P. 25.2(a)(2). And although there are some limited exceptions that allow for the appeal of an interlocutory order, the denial of a motion for shock probation is not an appealable order. See Houlihan v. State, 579 S.W.2d 213, 215-16 (Tex. Crim. App. 1979); Dodson v. State, 988 S.W.3d 833, 834 (Tex. App.—San Antonio 1999, no pet.) (holding that appellate court lacked jurisdiction to hear an appeal from the denial of a motion for shock probation); but see Shortt v. State, 539 S.W.3d 321, 327 (Tex. Crim. App. 2018) (holding a defendant may appeal a ruling that grants a motion for shock probation).
Moreover, appellant's pro se notice of appeal was filed more than ninety days after the trial court's ruling. A defendant's notice of appeal must be filed within thirty days after an appealable order has been signed when a motion for new trial has not been executed. TEX. R. APP. P. 26.2. In the event a motion for new trial is filed, then the notice of appeal must be filed within ninety days. Id. Here, the order denying his motion for shock probation was signed on January 6, 2014, and no motion for new trial was filed. Accordingly, his notice of appeal would have been due February 5, 2014; however, he did not file his notice of appeal until over four years later on June 4, 2018. See id.
Because it appears we lack jurisdiction to consider his appeal, we ORDER appellant to file in this court, on or before August 13, 2018, a response showing cause why this appeal should not be dismissed for want of jurisdiction. If appellant fails to satisfactorily respond within the time provided, the appeal will be dismissed. See TEX. R. APP. P. 42.3(c). If a supplemental clerk's record is required to establish this court's jurisdiction, appellant must ask the trial court clerk to prepare one and must notify the clerk of this court that such a request was made. All deadlines in this matter are suspended until further order of the court.
We further order the clerk of this court to serve a copy of this order on the trial court, all counsel, appellant, and the court reporter.
/s/_________
Marialyn Barnard, Justice
IN WITNESS WHEREOF, I have hereunto set my hand and affixed the seal of the said court on this 13th day of July, 2018.
/s/_________
Keith E. Hottle
Clerk of Court