Perez v. State

938 S.W.2d 761, 1997 WL 33093
CourtCourt of Appeals of Texas
DecidedFebruary 27, 1997
Docket03-96-00121-CR, 03-96-00122-CR
StatusPublished
Cited by65 cases

This text of 938 S.W.2d 761 (Perez v. State) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Perez v. State, 938 S.W.2d 761, 1997 WL 33093 (Tex. Ct. App. 1997).

Opinion

BEA ANN SMITH, Justice.

These are purported appeals from identical orders granting “shock probation.” Tex. Code Crim.Proe.Ann. art. 42.12, § 6(a) (West 1997). 1 Without challenging his convictions, *762 appellant Rodrigo Perez specifically challenges a condition of his probation. We will dismiss the appeals for want of jurisdiction. 2

I.

Appellant pleaded guilty to attempted aggravated sexual assault of a child on August 2, 1995. 3 On September 15, 1995, the trial court assessed punishment at ten years’ confinement in the Texas Department of Criminal Justice — Institutional Division. On February 12, 1996, following execution of sentence, the court suspended further imposition and placed appellant on a ten-year term of community supervision. Appellant gave notice of appeal on February 28, 1996. This appeal concerns the condition of supervision mandating that appellant

[rjeport to the appropriate law enforcement authority and complete all paperwork for sex offender registration within seven (7) days of the date of community supervision. Report any changes of address within seven (7) days to the law enforcement authority with whom [he] last registered.

See Tex.Rev.Civ.StatAnn. art. 6252-13c.l, § 2 (West Supp.1997). Appellant asks that we “modify or reverse the judgment of the trial court” and order the district court to delete the registration requirement from appellant’s conditions of probation. Further, appellant asks this Court to order that any information provided by appellant trader the sex offender registration act be kept confidential. Perez urges that the 1995 amendments to article 6252-13e.l do not apply to him because (1) he pleaded guilty before their effective date and (2) retroactive application of the amended registration law would be unconstitutional. The State responds that this Court does not have jurisdiction to consider these points of error.

II.

We initially consider the procedural question of whether an appeal lies from an order granting shock probation. There is no constitutional right to appellate review of criminal convictions. Phynes v. State, 828 S.W.2d 1, 2 (Tex.Crim.App.1992). 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); Olowosuko v. State, 826 S.W.2d 940, 941 (Tex.Crim.App.1992).

While the right to appeal from an order granting shock probation is a question of first impression, we find instructive two Court of Criminal Appeals opinions discussing the right to appeal from analogous orders. In Basaldua v. State, 558 S.W.2d 2 (Tex.Crim.App.1977), the defendant sought to appeal from a trial court order refusing to modify the conditions of his probation. The Court of Criminal Appeals, after a thorough discussion, held that there was no constitutional or statutory authority permitting a direct appeal from an order modifying or refusing to modify probationary conditions. Id. at 5. In Houlihan v. State, 579 S.W.2d 213 (Tex.Crim.App.1979), the defendant sought to appeal from a trial court order overruling a motion to place him on shock probation. The Court of Criminal Appeals again held that it was without appellate jurisdiction because neither article 42.12 nor any other statute authorized a direct appeal from such an order. Id. at 215-16.

We believe that the reasoning set forth in Basaldua and Houlihan applies with equal force to the instant appeal. Just as there is no statutory authority for an appeal from an order refusing shock probation, neither is there authority for an appeal from an order granting shock probation. Accordingly, we conclude that this Court lacks authority to entertain a direct appeal from the district *763 court’s order placing appellant on shock probation.

Alternatively, if we consider this appeal as being from the judgment of conviction, it was not timely perfected. Appellant argues that because he was not informed of the terms and conditions of his community supervision until February 12, 1996, the time to perfect did not begin to run until that date. Arguijo v. State, 738 S.W.2d 367, 369 (Tex.App.—Corpus Christi 1987, no pet.). Unlike Argui-jo, however, the conditions of supervision were not a necessary part of the judgment in this cause. Acting under article 42.12, section 6(a), the trial court imposed appellant’s sentence of incarceration on September 15, 1995. Section 6(a) requires that a court impose a sentence before it can consider a motion to suspend further execution of the sentence. Because appellant’s sentence was imposed on September 15, 1995, his time to perfect an appeal ran from that date. Tex. RApp.P. 41(b)(1).

III.

Even if appellant’s appeal were properly before us, his points of error would be without merit. By his first point of error, appellant urges that the 1995 amendments to the sexual offender registration law do not apply to him because he was convicted before the effective date of the amendments. By his second point, appellant contends that application of the 1995 amendments to him would violate the constitutional prohibition against ex post facto laws. U.S. Const, art. I, § 10. It is important to note that appellant does not challenge the registration requirement of the law itself, 4 nor does he contend that registration is an impermissible condition of supervision. 5 Instead, appellant seeks to be governed by the terms of the program as it existed before the 1995 amendments became effective. Specifically, appellant objects to being included in the central database as mandated by the 1995 amendments and to being required to register for the extended term called for by the 1995 amendments. Tex.Rev.Civ.StatAnn. art. 6252-13c.l, §§ 5 and 9 (West Supp.1997). 6

In his first point of error, appellant asserts that a plea of guilty is the equivalent of a conviction, and hence, he was convicted on August 2, 1995, approximately a month before the effective date of the amendment. See Tex.Code Crim.ProcAnn. art. 42.12, § 3(a) (following a plea of guilty a judge may suspend imposition of the sentence and place defendant on community supervision); McWherter v. State, 571 S.W.2d 312, 313 n.

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