Opinion
No. 05-07-00510-CR
Opinion issued February 5, 2008. DO NOT PUBLISH. Tex. R. App. P. 47.
On Appeal from the Criminal District Court No. 2, Dallas County, Texas, Trial Court Cause No. F00-32742-NI.
Before Justices WHITTINGTON, BRIDGES, and FRANCIS.
MEMORANDUM OPINION
Russell Emerson Logan pleaded guilty to possession of methamphetamine in an amount of four grams or more but less than 200 grams. He was placed on seven years' deferred adjudication community supervision and assessed a $1500 fine on October 10, 2001. The State subsequently filed a motion to proceed with adjudication of guilt. On January 31, 2007, rather than adjudicating appellant guilty, the trial court continued appellant on deferred adjudication, extended the period of supervision seven years, and modified the conditions of his supervision. Appellant filed a notice of appeal from the trial court's order extending the period of community supervision. We directed the parties to file letter briefs addressing our jurisdiction over the appeal. Appellant responded that we have jurisdiction because the trial court's judgment extending the period of community supervision is void. Specifically, appellant asserts his previously-filed motion for new trial was granted and thus he was not on community supervision at the time the State filed its motion to adjudicate. The State countered that the trial court could not properly grant a motion for new trial with respect to the deferred adjudication order and appellant was still on community supervision. The State also asserts that because the January 31, 2007 order merely modified the conditions of supervision, we have no jurisdiction over the appeal. We agree with the State. " New trial means the rehearing of a criminal action after the trial court has, on the defendant's motion, set aside a finding or verdict of guilt." Tex. R. App. P. 21.1(a). Because a defendant who has been placed on deferred adjudication has not been found guilty, a motion for new trial is not an available remedy for the defendant. See Donovan v. State, 68 S.W.3d 633, 636 (Tex.Crim.App. 2002). Thus, the trial court could not have properly granted appellant's motion for new trial. See id. Moreover, the record contains a handwritten order, dated March 6, 2002, in which the then presiding trial judge stated he did not intend to grant appellant's motion for new trial, only to set the matter for hearing. See English v. State, 592 S.W.2d 949, 955-56 (Tex.Crim.App. 1980) (mistake in signing order granting motion for new trial clerical, not judicial error). Therefore, it is clear from the record that the deferred adjudication order of October 10, 2001 was in effect at the time the State filed its motion to adjudicate guilt. At the hearing, the trial court did not adjudicate appellant guilty. Rather, the judge continued appellant on deferred adjudication community supervision and modified the conditions of supervision. No appeal may be taken from an order modifying the conditions of community supervision. See Basaldua v. State, 558 S.W.2d 2, 5 (Tex.Crim.App. 1977). We conclude we have no jurisdiction over the appeal. Accordingly, we dismiss the appeal for want of jurisdiction.
Nor can we treat this as an appeal from the trial court's order denying appellant habeas corpus relief on the issue. The trial judge signed the order denying appellant the habeas relief on December 1, 2006. Thus, appellant's notice of appeal was due by Tuesday, January 2, 2007. See Tex. R. App. P. 4.1(a), 26.2(a)(1). Appellant did not file his notice of appeal until February 21, 2007, and the notice of appeal is untimely as to the December 1, 2006 order.