Opinion
No. 07-16-00060-CR
05-09-2016
DAVID NEAL DUNCAN, APPELLANT v. THE STATE OF TEXAS, APPELLEE
On Appeal from the 47th District Court Randall County, Texas
Trial Court No. 22,989-A, Honorable Abe Lopez, Presiding
MEMORANDUM OPINION
Before CAMPBELL and HANCOCK and PIRTLE, JJ.
Appellant, David Neal Duncan, appearing pro se, seeks to appeal an order modifying the conditions of his community supervision. We grant the State's motion to dismiss and dismiss the appeal for want of jurisdiction.
In August 2012, appellant pleaded guilty, pursuant to a plea bargain, to the third-degree felony offense of theft of property. Appellant was sentenced to eight years confinement with the term of confinement suspended and appellant placed on community supervision for a period of eight years. In May 2015, the State filed a motion to revoke appellant's community supervision. An amended motion to revoke was filed in December 2015. Instead of revoking appellant's community supervision, the trial court entered a Supplemental Order Amending Conditions of Probation which required appellant to submit to a period of confinement in Randall County Jail for a term of five months and extended the original probationary period by one year. Appellant subsequently perfected this appeal.
TEX. PENAL CODE ANN. § 31.03 (West Supp. 2015). --------
The State now moves to dismiss the appeal for want of jurisdiction. This Court has jurisdiction over a criminal defendant's appeal only where it arises from a judgment of guilt or other appealable order. See TEX. R. APP. P. 25.2(a)(2); Abbott v. State, 271 S.W.3d 694, 696-97 (Tex. Crim. App. 2008). It has long been held that an order modifying the conditions of community supervision is not an appealable order. See Basaldua v. State, 558 S.W.2d 2, 5 (Tex. Crim. App. 1977); Urrutia v. State, No. 07-15-00214-CR, 2015 Tex. App. LEXIS 9610 (Tex. App.—Amarillo Sept. 10, 2015, no pet. h.) (mem. op., not designated for publication).
By letter dated April 6, 2016, we notified appellant that the order being appealed was not an appealable order and directed appellant to respond to the State's motion to dismiss showing why the Court has jurisdiction. We advised appellant that if he did not respond by April 18 the appeal would be dismissed for want of jurisdiction. Appellant did not file a response.
Accordingly, we grant the State's motion to dismiss the appeal. This appeal is dismissed for want of jurisdiction and because appellant failed to comply with an order of this Court. TEX. R. APP. P. 42.3(a), (c).
Mackey K. Hancock
Justice Pirtle, J., dissenting. Do not publish.