Ashley Jimenez v. State

• Court: Court of Appeals of Texas
• Decided: August 9, 2016
• Docket: 07-16-00104-CR
• Status: Published

Opinion

In The Court of Appeals Seventh District of Texas at Amarillo

No. 07-16-00104-CR

ASHLEY NICOLE JIMENEZ, APPELLANT

V.

THE STATE OF TEXAS, APPELLEE

On Appeal from the 121st District Court Terry County, Texas Trial Court No. 6519, Honorable Kelly G. Moore, Presiding

August 9, 2016

MEMORANDUM OPINION Before QUINN, C.J., and HANCOCK and PIRTLE, JJ.

Ashley Nicole Jimenez (appellant) appeals from an order modifying and

continuing her probation. She had previously been convicted of injury to a child and

sentenced to two years in a state jail facility. The trial court suspended that sentence

and placed her on five years of community supervision. Thereafter, the State moved to

revoke that supervision. Upon convening a hearing on the motion, the trial court found

that appellant had violated various conditions of her community supervision but opted

not to revoke her probation. Instead, it continued appellant’s community supervision and modified the terms of it. Appellant timely appealed from the judgment manifesting

that decision. Through one issue, she argues that “the judgment in this Cause fatally

fails to meet the statutory requisites of a valid judgment as required by Art. 42.01 of the

Code of Criminal Procedure.”1 The State replied to that argument and, in its appellee’s

brief, moved to dismiss the appeal for want of jurisdiction. We dismiss.

Again, appellant does not question anything about the actual modification of the

conditions appended to her continued probation. Nor does she question the decision to

continue her probation. Instead, her complaint relates to the content of the judgment

entered when she was initially found guilty, sentenced and granted probation. Again,

she argues that not all the information required by art. 42.01, § 1 of the Code of Criminal

Procedure was included in the decree. That such a matter could have been reviewed

by an appeal from that aspect of her prosecution and conviction is beyond doubt. Wiley

v. State, 410 S.W.3d 313, 320 (Tex. Crim. App. 2013). Indeed, issues relating to a

conviction resulting in community supervision or probation must be raised when

community supervision is originally imposed. Manuel v. State, 994 S.W.2d 658, 661-62

(Tex. Crim. App. 1999); Whetstone v. State, 786 S.W.2d 361, 363 (Tex. Crim. App.

1990); Niavez v. State, No. 07-12-00184-CR, 2013 Tex. App. LEXIS 6259, at *4 (Tex.

App.—Amarillo May 20, 2013, no pet.) (mem. op., not designated for publication). And,

though an exception to that rule exists, it generally encompasses situations where the

judgment is void. Nix. v. State, 65 S.W.3d 664, 667-68 (Tex. Crim. App. 2001); Niavez

v. State, 2013 Tex. App. LEXIS 6259 at *4; accord, Gaston v. State, 63 S.W.3d 893,

1 Allegedly, the judgment failed to state the offense or offenses for which appellant was convicted, even though the original judgment stated that she was convicted of “Injury To A Child” and the order continuing her probation stated that she was convicted of “Injury To A Child.” See TEX. CODE CRIM. PRO. ANN. art. 42.01, § 1(13) (West Supp. 2015) (stating that the judgment “shall reflect . . . [t]he offense or offenses for which the defendant was convicted”).

2 897 (Tex. App.—Dallas 2001, no pet.) (stating that “[w]hile generally the original plea

cannot be attacked on an appeal of the revocation order, the court may review the

underlying judgment of conviction to see if it is ‘void.’”).

Yet, omitting from a judgment those things required by art. 42.01, § 1 does not

render the judgment void, but merely voidable. Ford v. State, No. 11-03-00355-CR,

2005 Tex. App. LEXIS 3034, at *2-3 (Tex. App.—Eastland April 21, 2005, no pet.);

Gaston v. State, 63 S.W.3d at 898; accord, Jones v. State, 795 S.W.2d 199, 202 (Tex.

Crim. App. 1990) (recognizing that the information “required to be set out in the

judgment is merely a record of events which have occurred in fact” and that the

intermediate appellate court erred in concluding that the omission of same rendered the

judgment void). For this reason, such complaints fall outside the exception recognized

in Nix and into the rule propounded by Whetstone and reiterated in Manuel. They

cannot be postponed until the community supervision previously granted is affected by

later decisions of the trial court. Ford v. State, supra; Gaston v. State, supra. In the

latter scenario, the reviewing court no longer has the jurisdiction to review them. Ford

v. State, supra; Gaston v. State, supra.

So, per the authority of Gaston, Ford, Manuel, or Nix, we have no jurisdiction

over the sole issue raised by appellant and dismiss the appeal for want of jurisdiction.

Brian Quinn Chief Justice

Do not publish.

Pirtle, J., concurring.