Gerrit Mitchell Albers v. State

• Court: Court of Appeals of Texas
• Decided: October 29, 2015
• Docket: 13-15-00422-CR
• Status: Published

Opinion

NUMBER 13-15-00422-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG ____________________________________________________________

GERRIT MITCHELL ALBERS, Appellant,

v.

THE STATE OF TEXAS, Appellee. ____________________________________________________________

On appeal from the 36th District Court of Aransas County, Texas. ____________________________________________________________

MEMORANDUM OPINION

Before Justices Garza, Benavides, and Longoria Memorandum Opinion Per Curiam

Appellant, Gerrit Mitchell Albers, attempts to appeal from an order modifying the

terms of his community supervision. We dismiss the appeal.

On March 13, 2014, pursuant to a plea agreement, appellant pled guilty or nolo

contendere to the offense of possession of heroin in an amount of less than one gram (Count 1), and tampering with physical evidence (Count 2). See TEX. HEALTH & SAFETY

CODE ANN. §481.115(b) (West 2010); TEX. PENAL CODE ANN. §37.09. Appellant was

given a suspended sentence of three years deferred supervision for Count 1 and a

suspended sentence of five years deferred supervision for Count 2.

On June 18, 2015, the State filed a motion to adjudicate guilt, alleging that Albers

had violated the terms of his community supervision. A hearing on the motion was held

on July 23, 2015. The trial court found that appellant violated the terms and conditions

of his community supervision, but that Albers’ community supervision should not be

revoked. The trial court ordered the term of community supervision to be extended for a

period of two years from the date of expiration of the original term for Counts 1 and 2.

Appellant filed a notice of appeal on September 14, 2015.

The right to appeal is conferred by the legislature, and a party may appeal only

that which the legislature has authorized. Marin v. State, 851 S.W.2d 275, 278 (Tex.

Crim. App. 1993). A defendant has a right to appeal when his community supervision is

revoked and he is adjudicated guilty and sentenced. See TEX. CODE CRIM. PROC. art.

42.12, § 23(b). To the contrary, there is no statutory basis for an appeal of an order

modifying a term or condition of probation. See Christopher v. State, 7 S.W.3d 224, 225

(Tex. App.—Houston [1st Dist.] 1999, pet. ref’d). Case law has long held that an order

modifying or refusing to modify probation is not subject to appeal. See Basaldua v.

State, 558 S.W.2d 2, 5 (Tex. Crim. App. 1977); Perez v. State, 938 S.W.2d 761, 762-63

(Tex. App.—Austin 1997, pet. ref’d); Eaden v. State 901 S.W.2d 535, 536 (Tex. App.—El

Paso 1995, no pet.).

2 In this case, the record does not contain any order revoking Albers’ community

supervision, adjudicating his guilt, or assessing a jail or prison sentence. The trial court’s

orders of July 23, 2015, modified the terms of community service by extending the period

of community service an additional two years.

The Court, having examined and fully considered the documents on file, is of the

opinion that the appeal should be dismissed for want of jurisdiction. Accordingly, the

appeal is hereby DISMISSED FOR WANT OF JURISDICTION. See TEX. R. APP. P.

42.3(a).

PER CURIAM

Do not publish. See TEX. R. APP. P. 47.2(b).

Delivered and filed the 29th day of October, 2015.