Ladavious Cobur Ramon Smith v. State

• Court: Court of Appeals of Texas
• Decided: September 10, 2020
• Docket: 02-20-00081-CR
• Status: Published

Opinion

In the Court of Appeals Second Appellate District of Texas at Fort Worth ___________________________

No. 02-20-00081-CR ___________________________

LADAVIOUS COBUR RAMON SMITH, Appellant

V.

THE STATE OF TEXAS

On Appeal from the 431st District Court Denton County, Texas Trial Court No. F16-2486-431

Before Birdwell, Bassel, and Womack, JJ. Per Curiam Memorandum Opinion MEMORANDUM OPINION

Ladavious Cobur Ramon Smith filed a notice of appeal attempting to challenge

the trial court’s denial of (1) his motion for shock probation and (2) his request for

findings of fact and conclusions of law.

Generally, an appellate court may consider appeals by criminal defendants only

where there has been a final judgment of conviction. Bridle v. State, 16 S.W.3d 906, 907

(Tex. App.—Fort Worth 2000, no pet.) (per curiam). We do not have jurisdiction to

review interlocutory orders such as the one in this case unless that jurisdiction has been

expressly granted to us by law. Ragston v. State, 424 S.W.3d 49, 52 (Tex. Crim. App.

2014) (quoting Apolinar v. State, 820 S.W.2d 792, 794 (Tex. Crim. App. 1991)). The

narrow exceptions to this rule do not apply here. See Bridle, 16 S.W.3d at 907 n.1. The

denial of a motion for shock probation is not an appealable order. Houlihan v. State, 579

S.W.2d 213, 216 (Tex. Crim. App. 1979); Monson v. State, No. 02-16-00447-CR, 2018

WL 2248567, at *1 (Tex. App.—Fort Worth May 17, 2018, no pet.) (mem. op., not

designated for publication). And no statute or rule makes an order denying a request

for findings of fact and conclusions of law independently appealable. Cf. Ex parte

Prescott, No. 02-20-00066-CR, 2020 WL 1949013, at *1 (Tex. App.—Fort Worth

Apr. 23, 2020, no pet.) (mem. op., not designated for publication) (holding that an order

adopting findings and conclusions was not independently appealable); State v. Davis,

Nos. 03-15-00616-CR, 03-15-00620-CR, 2015 WL 7424702, at *1 (Tex. App.—Austin

2 Nov. 19, 2015, no pet.) (per curiam) (mem. op., not designated for publication) (holding

that findings and conclusions did not constitute an appealable order).

In light of the foregoing, we sent Smith a letter expressing our concern that we

do not have jurisdiction because the trial court has not entered any appealable orders.

We informed Smith that unless he or any other party desiring to continue the appeal

filed a response showing grounds for continuing the appeal, we would dismiss it. See

Tex. R. App. P. 44.3.

In his response, Smith did not contend that the denial of his motion for findings

and conclusions was an appealable order. However, Smith did argue that Shortt v. State

allows an appeal from an order denying shock probation. 539 S.W.3d 321 (Tex. Crim.

App. 2018).

Smith has misread Shortt, which held that an order granting shock probation was

appealable under a statute that provided, “The right of the defendant to appeal for a

review of the conviction and punishment, as provided by law, shall be accorded the

defendant at the time he is placed on community supervision.” Id. at 323; see Tex. Code

Crim. Proc. Ann. art. 42A.755(e). Shortt reasoned that when the trial court grants a

defendant shock probation, the court “places the defendant on community

supervision” for purposes of the statute and thus triggers the right to appeal. Shortt,

539 S.W.3d at 326 (cleaned up). Shortt said nothing of those who are denied shock

probation, and its rationale does not embrace situations such as this one: those who

3 are denied shock probation cannot be said to have been placed on community

supervision. See id.

Because there is no appealable order, we dismiss the appeal for want of

jurisdiction. See Tex. R. App. P. 43.2(f).

Per Curiam

Do Not Publish Tex. R. App. P. 47.2(b)

Delivered: September 10, 2020