Joann Rivera v. State

• Court: Court of Appeals of Texas
• Decided: September 27, 2018
• Docket: 13-18-00448-CR
• Status: Published

Opinion

NUMBER 13-18-00448-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG ____________________________________________________________

JOANN RIVERA, Appellant,

v.

THE STATE OF TEXAS, Appellee. ____________________________________________________________

On Appeal from the 148th District Court of Nueces County, Texas. ____________________________________________________________

MEMORANDUM OPINION

Before Chief Justice Valdez and Justices Longoria and Hinojosa Memorandum Opinion by Chief Justice Valdez

Appellant entered a plea of guilty to possession of a controlled substance. On

June 14, 2016 the trial court deferred adjudication of her guilt and placed her on

community supervision. The appellant did not file a notice of appeal at that time, but instead brought this appeal of the trial court’s subsequent order of July 3, 2018 imposing

sanctions and increasing community supervision for a year. We dismiss the appeal.

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.).

In this case, the record does not contain any order revoking Rivera’s community

supervision, adjudicating her guilt, or assessing a jail or prison sentence. Accordingly,

the Clerk of this Court notified appellant that it appeared that the order from which the

appeal was taken was not an appealable order and requested correction of this defect

within ten days or the appeal would be dismissed. On August 31, 2018, counsel filed a

letter brief with this Court concluding this Court lacks jurisdiction.

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).

2 /s/ Rogelio Valdez ROGELIO VALDEZ Chief Justice

Do not publish.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

Delivered and filed the 27th day of September, 2018.