Opinion
No. 10-08-00184-CR
Opinion delivered and filed June 25, 2008. DO NOT PUBLISH.
Appealed from the 66th District Court Hill County, Texas, Trial Court No. 34,283. Appeal dismissed.
Before Chief Justice GRAY, Justice VANCE, and Justice REYNA (Chief Justice Gray not participating).
("Chief Justice Gray does not join the dismissal for want of jurisdiction at this time. A separate opinion will not issue. He notes, however, that dismissal for want of jurisdiction is premature. Dismissal for want of jurisdiction is premature because no motion to dismiss has been filed, and the Court has not given the parties the required ten day notice that, on the Court's own motion, we are questioning our jurisdiction and giving the appellant an opportunity to respond. See TEX. R. APP. P. 42.3(a). Further, this area of the law, in which it appears the appellant wants to complain about the modification of the conditions of community supervision, is not as crystal clear as the Court makes it seem. I have found cases with this fact pattern and the probationer was allowed to challenge the new terms or conditions of probation. See Smith v. State, No. 07-01-0020-CR, 2001 Tex. App. LEXIS 3904 (Tex.App.-Amarillo, June 13, 2001, no pet.) (not designated for publication); Ojeda v. State, No. 13-99-633-CR, 2000 Tex. App. LEXIS 3816 (Tex.App.-Corpus Christi 2000, no pet.) (not designated for publication). I recognize that the authority for such an appeal may have been eroded or otherwise based on shifting sand, but it is precisely for that reason that we should notify the parties that we are questioning our jurisdiction and request briefing on the issues.")
MEMORANDUM OPINION
The State filed a motion to revoke Willie Dewayne Mason's community supervision. The trial court denied the motion but modified the conditions of Mason's community supervision by requiring him to participate in a substance abuse felony punishment program operated by the Department of Criminal Justice. Mason seeks to appeal the order modifying the conditions of community supervision. We will dismiss the appeal for want of jurisdiction. "There is no legislative authority for entertaining a direct appeal from an order modifying the conditions of community supervision. A complaint about a modification can, however, be raised in an appeal from a revocation if the validity of the revocation depends on the validity of the modification." Davis v. State, 195 S.W.3d 708, 710 (Tex.Crim.App. 2006) (footnote omitted); but see TEX. CODE CRIM. PROC. ANN. art. 11.072 (Vernon 2005) (authorizing application for habeas relief in community supervision case). Generally, a court of appeals has jurisdiction in criminal cases only over appeals from final convictions. See Ex parte Smith, 178 S.W.3d 797, 801 n. 13 (Tex.Crim.App. 2005). Criminal appeals are permitted in other instances only when provided by statute. See Apolinar v. State, 820 S.W.2d 792, 794 (Tex.Crim.App. 1991); Vargas v. State, 109 S.W.3d 26, 29 (Tex.App.-Amarillo 2003, no pet.); Benford v. State, 994 S.W.2d 404, 409 (Tex.App.-Waco 1999, no pet.). Therefore, because no statute permits an appeal from an order modifying a condition of community supervision, we dismiss Mason's appeal for want of jurisdiction.