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## COURT OF CRIMINAL APPEALS
PD-0597-15 Bernard Winfield Shortt, Appellant, v. State of Texas, Appellee. On Discretionary Review f rom No. 05-13-01639-CR Fifth Court of Appeals On Appeal from No. F07-00193 194th Judicial District Court, Dallas County


## Appellant’s Brief

Michael Mowla P.O. Box 868 Cedar Hill, TX 75106 Phone: 972-795-2401 Fax: 972-692-6636 michael@mowlalaw.com Texas Bar No. 24048680 Attorney for Appellant



## Oral Argument Granted PD-0597-15 COURT OF CRIMINAL APPEALS

AUSTIN, TEXAS Transmitted 10/29/2015 5:29:57 AM Accepted 10/29/2015 7:53:11 AM

ABEL ACOSTA CLERK2 I. Identity of Parties, Counsel, and Judges Bernard Winfield Shortt, Appellant Michael Mowla, attorney for A ppellant on appeal and on discreti onary review Basil Hoyl, Attorney for Appellant at trial Catherine Gould, Attorney for Appellant at trial Susan Hawk, Dallas County Distri ct Attorney, Attorney for Appel lee State Lori Ordiway, Dallas County Assistant District Attorney Lisa Smith, Dallas County A ssistant District Attorney Marisa Elmore, Dalla s County Assistant District Attorney Summer Elmazi, Dallas County A ssistant District Attorney Mindy Sauter, Dallas County Assi stant District Attorney Jennifer Sawyer, Dallas County Assistant District Attorney Amy Croft, Dallas County Assistant District Attorney Hon. Ernest White, Presiding J udge of the 194th Judicial Distri ct Court3 II. Table of Contents I. Identity of Parties, Counsel, and Judges ...................... .................................... 2 II. Table of C ontents ............................................. ................................................ 3 III. Table of Au thorities .......................................... ............................................... 5 IV. Appendix Index ................................................ ............................................... 9 V. Statement of the Case and Procedural History .................. ............................ 10 VI. Statement Regarding Oral Argument ............................. ............................... 13 VII. Issues Presented .............................................. ............................................... 14 VIII. Facts ......................................................... ...................................................... 15 1. Events leading up to the entry of the Order of Deferred Adjudication entered on Dece mber 7, 2007. ................................. ................ 15 2. The State files motions to proc eed with an adjudication of guil t .................. 16 3. The trial court adjudicates Appellant’s guilt, sentences Appellant to 10 years in prison, but does not impose restitutio n in the Judgment Adjudicating Guilt

. ............................................................. . 17 4. On October 28, 2013, the trial court grants Appellant’s Motion for Shock Probation and plac es Appellant on community supervision for five years. ................................... .......................................... 18 IX. Summary of the Arguments ...................................... ..................................... 20 X. Argument ...................................................... ................................................. 21 1. Issue One: The Court of Appeals erred when it dismissed Appellant’s appeal for want of j urisdiction because: (1) Texas Code of Criminal Procedure Ar ticle 44.02 allows appeals from criminal actions, and under this Court’s holding in Bautsch v. Galveston, 11 S.W. 414 (Tex. Ct. App. 1889), a hearing on a motion for shock probation is a criminal action ; and (2) the issue appealed was an unconstitutional imposition of restitutio n, and not the granting of shock probation. As a result, this Cou rt should hold that a hearing on shock probation is a “criminal action” and that a person may appeal an unconstitutional imposition of restitution in a shock probation order. ......... ........................... 21 i. Although Texas Code of Cr iminal Procedure Article 42.12 § 6 (shock probation statute) does not specifically provide the right to appeal a condition of shock probation4 or part of the shock probatio n order, a shock probation proceeding is a criminal action, and Article 44.02 and Bautsch v. Galveston confer the right to an appeal from a criminal action

. ............................................................. ...................... 21 ii. The issue appealed was the unconstitutional imposition of restitution in the shock pr obation order, and not the granting of shock probation. The imposition of restitution unconstitutionally enlarged Appellant’s punishment and sentence in violation of the double jeopardy clause. This result should not be allowed by this Court because absent restraints imposed by this Court and the right to appeal such trial court error, a trial court may impose any punishment as part of shock pr obation, however onerous. ....... .......... 30 iii. The cases cited by the Cour t of Appeals do not support its conclusion that it l acks jurisdiction. .................... ........................... 38 iv. Conclusion .................................................... ....................................... 40 2. Issue Two: In the alternative, under Houlihan and Basaldua , Appellant asks this Court to treat this case as a writ of mandamus or habeas corpus, consider the case on its merits, and grant the reque sted relief. ............................... ......................................... 41 i. Argument ...................................................... ....................................... 41 ii. Conclusion .................................................... ....................................... 47 XI. Conclusion a nd Prayer ......................................... .......................................... 48 XII. Certificate of Service ........................................ ............................................. 49 XIII. Certificate of Compliance with Tex. Rule App. Proc. 9.4 ....... ..................... 495 III. Table of Authorities Cases Abron v. State , 997 S.W.2d 281 (Tex. App. Dallas 1998) ...................... ................. 35 Alabama v. Smith , 490 U.S. 794 (1989) ......................................... ......................... 33 Alexander v. State , 301 S.W.3d 361 (Tex. App. Fort Worth 2009, no pet .) ............................................................ .................................................... 35 Bailey v. State , 160 S.W.3d 11 (Tex. Crim. App . 2004) ........................ ................. 36 Basaldua v. State , 558 S.W.2d 2 (Tex. Crim. App. 1977) ......................... ............. 44 Bautsch v. Galveston , 11 S.W. 414 (Tex. C t. App. 1889) .......................... 1 2, 20, 26 Botello v. State , 693 S.W.2d 528 (Tex. App. Corpus Christi 1985, pet. ref .) ............................................................ ..................................................... 32 Bryant v. State , 187 S.W.3d 397 (Tex. Crim. App. 2005) ....................... ................ 46 Cartwright v. State , 605 S.W.2d 287 (Tex. C rim. App. 1980) ....................... ......... 32 Collins v. State , 754 S.W.2d 818 (Tex. App. Houston [1st Dist.] 1988, pet. ref .) ............................................................ .............................................. 31 Downer v. Aquamarine Operators, Inc ., 701 S.W.2d 238 (Tex. 1985) .................. 42 Duran v. State , 844 S.W.2d 745 (Tex. Crim. App. 1992) (Baird, J. concurri ng) ................................................... .................................................. 27 Durgan v. State , 240 S.W.3d 875 (Tex. Crim. App. 2007) ....................... .............. 23 Eckels v. Gist , 743 S.W.2d 330 (Tex. App. Houston [1st Dist.] 1987, no writ ) ............................................................. .............................................. 43 Ex parte Cavazos , 203 S.W.3d 333 (Tex . Crim. App. 2006) ....................... ........... 33 Ex parte Green , WR-82,072-01, 2015 Tex. Crim. App. Unpub. LEXIS 246 (Tex. Crim. App. April 1, 2015) (per curiam) ........ ................... 46 Ex parte Pena , 739 S.W.2d 50 (Tex. Crim. App . 1987) ........................ ................. 37 Garcia v. Dial, 596 S.W.2d 524 (Tex. Crim. App. 1980) ......................... .............. 42 Gevinson v. Manhattan Construction Company of Oklahoma , 449 S.W.2d 458 (T ex. 1969) ........................................ ........................................ 45 Gray v. State , 69 S.W.3d 835 (Tex. App. Waco 2002, no pet .) .............................. 38 Houlihan v. State , 579 S.W.2d 213 (Tex. C rim. App. 1979) ....................... ........... 41 Idowu v. State , 73 S.W.3d 918 (Tex. Crim. App. 2002) ........................ .................. 316 In re Cornyn , 27 S.W.3d 327 (Tex. App. H ouston [1st Dist.] 2000, orig. proceed ing) ............................................. ............................................... 43 In re Dervaes , 81 B.R. 127 (Bankr . S.D. Fla. 1987) ......................... ...................... 29 In re Dilley I.S.D ., 23 S.W.3d 189 (Tex. App. San Antonio 1999, orig. proceeding) ................................................... ................................................. 43 In re Kuntz , 124 S.W.3d 179 (Tex. 2003) .................................. .............................. 41 In re Southwestern Bell Tel. Co ., 35 S.W.3d 602 (T ex. 2000) ................................ 4 3 In re Wise , 20 S.W.3d 894 (Tex. App. Waco 2000, no pet .) ................................... 42 Lopez v. State , 108 S.W.3d 293 (Tex. Crim. App. 2003) ....................... ................. 33 Martin v. State , 874 S.W.2d 674 (Tex. Crim. App. 1994) ....................... ............... 33 Nix v. State , 65 S.W.3d 664 (Tex. Crim. App . 2001) ........................ ...................... 23 North Carolina v. Pearce , 395 U.S. 711 (1969) ......................................... ............. 33 Olowosuko v. State , 826 S.W.2d 940 (Tex. Cri m. App. 1992)................... 21, 22, 23 People v Fisher , 167 Misc.2d 850, 635 NYS.2d 1002 (Crim Ct., Richmond Count y 1995) ......................................... ...................................... 28 Perez v. State , 938 S.W.2d 761 (Tex. App. Austin 1997, pet. ref. ) .................. 38, 39 Pippin v. State , 271 S.W.3d 861 (Tex. App. Amarillo 2008, no pet. ) .............. 38, 39 Pizana v. State , 398 S.W.3d 728 (Tex. App . San Antonio 2009) ................. .......... 23 Reasor v. State , 281 S.W.3d 129 (Tex. App. San Antonio 2008, pet. ref .) ............................................................ ..................................................... 38 Roberts v. State , No. 04-10-00558-CR, 2010 Tex. App. LEXIS 8940, 2010 WL 4523788 (Tex. App. San Antonio Nov. 10, 2010, pet. ref. ) (mem. op., not designa ted for publication) .................. .......................... 39 Shortt v. State , 05-13-01639-CR, 2015 Tex. App. LEXIS 4808 (Tex. App. Dallas, May 12, 2015) (memorandum opinion) ............... ......... 9, 10, 11 Simon v. Levario , 306 S.W.3d 318 (Tex . Crim. App. 2009) ...................... ............ 43 Speth v. State , 6 S.W.3d 530 (Tex. Crim. App . 1999) ......................... .................... 31 State ex rel. Bryan v. McDonald, 662 S.W.2d 5 (Tex. Crim. App. 1983) ......................................................... ..................................................... 42 State ex rel. Curry v. Gray , 726 S.W.2d 125 (Tex. Crim. App. 1987) (opinion on r ehearing) ........................................ ........................................... 427 State ex rel. Wade v. Stephens , 724 S.W.2d 141 (Tex. App. Dallas 1987, orig. pro ceeding) ....................................... ........................................... 43 State v. American-News Co ., 253 N.W. 492 (S.D. 1934) ................................... ..... 28 State v. Curran , 628 P.2d 1198 (Ore. 1981) ................................... ......................... 28 State v. Wimley , 2011-Ohio-5639, 2011 Ohio App. LEXIS 4607, 2011 WL 5188091 (Ct. App. Ohio, 9 th Dist. 2011) ................................................ 2 8 Stoner v. Massey , 586 S.W.2d 843, 846 (Tex. 1979) ............................. ................. 42 Tempo Tamers, Inc. v. Crow-Houston Four LTD ., 715 S.W.2d 658 (Tex. App. Da llas 1986) ....................................... ......................................... 45 Thomas v. St. Joseph Hospital , 618 S.W.2d 791 (Tex. Civ. App. Houston [1st Dist.] 1981, writ ref. n.r.e .) ...................................................... 45 Thomas v. State , No. 05-12-00392-CR, 2013 Tex. App. LEXIS 2095, 2013 WL 1277885 (Tex. App. D allas, March 1, 2013) (unpublished) ................................................. ................................................ 27 Thursby v. State , 05-94-01772-CR, 1997 WL 472310, 1997 Tex. App. LEXIS 4378 (Tex. App. D allas Aug. 20, 1997, pet. ref. ) (mem. op., not designated for publication) .......................... ..................................... 39 Weir v. State , 252 S.W.3d 85 (Tex. App. Austin 2008), affirmed in part and reversed in part , 278 S.W.3d 364, 367 (Tex. Crim. App. 2009) .................................................... ................................................. 34 Williams v. State , 592 S.W.2d 931 (Tex. C rim. App . 1979) ....................... ............ 24 Statutes Tex. Code Crim. Proc. Art. 4.04 (2015) ........................ .......................................... 43 Tex. Code Crim. Proc. Art. 42.037 (2004) ...................... ........................................ 37 Tex. Code Crim. Proc. Art. 42.12 (2013) ....................... ................................. passim Tex. Code Crim. Proc. Art. 43.037 (2015) ...................... ........................................ 38 Tex. Code Crim. Proc. Art. 44.02 (2015) ....................... ......................................... 26 Tex. Pen. Code § 3.03 (2015) .................................. ................................................ 28 Tex. Pen. Code § 30.02 (2006) ................................. ............................................... 15 Other Authorities Acts 2007, 80th Leg., ch. 1308 (S. B. 909) effective June 15, 20 07 ........................ 248 Texas Archival Resources Online, http://www.lib.utexas.edu/taro/ts lac/50019/tsl-50019.html, last accessed on Oct ober 29, 2015 .................................. ..................................... 27 Rules Tex. Rule App. Pro c. 21.1 (2015) .............................. .............................................. 28 Tex. Rule App. Pro c. 25.2 (2014) .............................. ................................. 12, 26, 30 Tex. Rule App. Pro c. 26.2 (2014) .............................. .............................................. 11 Tex. Rule App. Pro c. 66.3 (2015) .............................. .............................................. 49 Tex. Rule App. Pro c. 68.11 (2015) ............................. ............................................. 50 Tex. Rule App. Pro c. 68.4 (2015) .............................. .............................................. 13 Tex. Rule App. Proc. 9.4 (2015) ............................... ............................................... 50 Tex. Rule App. Proc. 9.5 (2015) ............................... ............................................... 50 Constitutional Provisions Tex. Const. Ar t. 5, § 5 ....................................... ................................................ 43, 46 U.S. Const . Amend. V........................................... ................................................... 339 IV. Appendix Index Shortt v. State , 05-13-01639-CR, 2015 Tex. App. L EXIS 4808 (Tex. App. Dallas, May 12, 2015) (memorandum opinion)10 To The Honorable Judges of the Court of Criminal Appeals: Appellant Bernard Winfield Shortt respectfully submits this Br ief in support of the petition for discretionary review:

V. Statement of the Case and Procedural History Appellant asks this Court review the Memorandum Opinion and judgment of the Fifth Court of Appeals in Shortt v. State , 05-13-01639-CR, 2015 Tex. App. LEXIS 4808 (Tex. App. Dallas, May 12, 2015) (memorandum opinion ), in which the Court of Appeals dismissed Appellant’s appeal for want of j urisdiction on the basis that the Court does not have jurisdiction to consider the appeal because Appellant “appeals from an ord er granting shock probation” Id . at *6. The issue appealed was restitution imposed on Appellant in the judgment o f shock probation that Appellant argued was uncons titutional. Appellant did not appeal the granting of shock probation itself. In this Brief, Appellant will ask t his Court hold that a hearing on shock probation is a “criminal action” and that a pe rson may appeal an unconstitutional imposition of res titution in a shock probation order. In the alternative, Appellant will ask th is Court to treat this case a s a writ of mandamus or habeas corpus, consider the cas e on its merits, and grant the r equested relief. On October 28, 2013, Appellant was placed on community supervision under Texas Code of Criminal Pro cedure Article 42.12 § 6, Conti nuing Court11 Jurisdiction in Felony Cases (“shock probation”). (CR, 60-63) 1 ; see Tex. Code Crim. Proc. Art. 42.12 § 6 (2013). Appellant preserved for app ellate review the issue of restitution that was imp osed in the order of shock pro bation. (RR5). On November 20, 2013, Appellant filed a timely notice of appeal . (CR, 65- 66). See Tex. Rule App. Proc. 26.2(a) (2013). The trial court signed a Certification of Appellant’s Right of Appeal, certifying that this is a crimi nal case, and the order to be appealed is entitled Order Placing Defendant on Probation signed by the trial court on October 28, 2013, in which the trial court placed the defendant on community supervision under the shock probation statute, Articl e 42.12, § 6. (CR, 79). The trial court further certified that the order entitled Order Placing Defendant on Probation , dated October 28, 2013, is an appealable order, and that Appellant has the right of app eal under the Texas Rules of Appe llate Procedure. (CR, 79); see Tex. Rule App. Proc. 25.2(a)(2) (2013). On May 12, 2015, the Court of Appeals issued a Memorandum Opinion and judgment, in which the Court dismissed Appellant’s appeal for w ant of jurisdiction on the basis that the Court does not have jurisdiction to consi der the appeal because Appellant “appeals from an order granting shock probati on” Shortt , id . at *6.

1 The Record on Appeal consists of the Clerk’s Record, which is one volume and a supplemental volume, and the Reporter’s Recor d, which is five volumes. The Clerk’s Record is cited as “CR” or “CR-Supp” followed by the page number, and the Reporter’s Re cord is cited as “RR” followed by the volume number and page number.12 On June 30, 2015, Appellant filed a petition for discretionary review. Appellant argued that the Court of Appeals erred when it dismis sed Appellant’s appeal for want of jurisdiction because: (1) Texas Code of Crim inal Procedure Article 44.02 allows appeals from a criminal action, and under this Court’s holding
in Bautsch v. Galveston , 11 S.W. 414 (Tex. Ct. App. 1889), a hearing on a motion for shock probation is a criminal action; and (2) the issue app ealed was an unconstitutional imposition of r estitution, and not the grantin g of shock probation. On September 16, 2015, this Court granted the petition for disc retionary review. Appellant now submits th is Brief in support of the pet ition.13 VI. Statement Regarding Oral Argument Oral argument has been allowed, and Appellant requests oral arg ument. See Tex. Rule App. Proc. 68.4(c) (2015). The issue presented in th is Brief may be one of first impression. As a result, Appellant believes that this Court’s decisional process will be significantly aided by oral argument.14 VII. Issues Presented Issue One: The Court of Appeals erred when it dismissed Appellant’s appea l for want of jurisdiction because: (1 ) Texas Code of Criminal Proced ure Article 44.02 allows appeals from criminal actions, and under this Court’s ho lding in Bautsch v. Galveston, 11 S.W. 414 (Tex. Ct. App. 1889), a hearing on a mot ion for shock probation is a criminal action ; and (2) the issue appealed was an unconstitutional imposition of restitution, and not the granting of shock probat ion. As a result, this Court should hold that a hearing on shock probation is a “crimi nal action” and that a person may appeal an unconstitutional imposition of restituti on in a shock probation order.
Issue Two: In the alternative, under Houlihan and Basaldua , Appellant asks this Court to treat this case as a writ of mandamus or habeas corpus , consider the case on its merits, and grant the requested relief.15 VIII. Facts 1. Events leading up to the entry of the Order of Deferred Adjudication entered on December 7, 2007. On February 14, 2007, Appellant w as indicted for Burglary of a Habitation. (CR, 11). The grand jury allege d in the indictment that on or about November 3, 2006, in Dallas County, Appellant intentionally and knowingly e ntered the habitation of John Wheelock, without the consent of Wheelock, w ith the intent to commit a theft in the habitation. (CR, 11); See Tex. Pen. Code § 30.02(a)(1) (2006). On December 12, 2007, Appellant s igned a judicial confession in which he admitted the offense charged in the indictment. (CR, 17). On th e same day, Appellant entered into and signed a plea agreement in which he agreed to seven years of deferred adjudication community supervision. (RR2, 7; CR, 21-22). Appellant agreed to waive the right to appeal the original sent ence entered on October 12, 2007. (CR, 23). On December 7, 2007, a hearing was held on the issue of restit ution. Wheelock testified that during the break-in of his residence, a safe was broken into. (RR3, 9). He claimed that the safe contained $18,000 in cash, a ll of which was stolen. (RR3, 9). Wheelock recovered $6,200 of the cash. (RR3, 11). Wheelock estimated that he lost another $285.00 in valuables, so he aske d that restitution be set at $12,285. (RR3, 12). However, Wheelock originally told th e Rowlett Police16 Department that $13,000 was take n from the safe. (RR3, 18). Wh eelock also told a probation officer that an altogether different amount was taken , which caused the officer to believe that Wheelock was fabricating the amount tak en from the safe. (RR3, 20). Although Appellant entered Wheel ock’s home, he took an X-Box a nd video games, and not cash. (RR3, 26). Appellant was not present in th e room where the safe sat; nor was Appellant prese nt when the codefendant may ha ve removed valuables from the safe. (RR3, 29). Appellant returned everyth ing to Wheelock that Appellant knew was taken from the residence. (RR3, 27). On December 7, 2007, the trial court entered an Order of Deferred Adjudication . (CR, 25). The trial court sentenced Appellant to seven years of deferred adjudication community s upervision, ordered restitutio n in the amount of $9,085.00, and did not order a fine. (CR, 25-26). As a conditi on of community supervision, Appellant was order ed to pay the restitution in pa yments of $130.00 per month. (RR3, 34; CR, 27).

2. The State files motions to proce ed with an adjudication of guil t On October 27, 2008, the State filed a motion to proceed with an adjudication of guilt. (CR, 35-36). It does not appear that a ny further action was taken on this motion.17 On July 31, 2009, the State filed another motion to proceed wi th an adjudication of guilt. (CR, 37-38). The State alleged that Ap pellant failed to make a number of payments of $130.00 per month in restitution and is delinquent $2,185.00. (CR, 38). On August 25, 2009, the trial court ente red an order in which it continued community supervision, but ordered electroni c monitoring as a condition of community supervision. (CR, 39). On the same day, the State withdrew its motion to proceed with an adjudication of guilt fi led on July 31, 2009. (CR, 40). On June 1, 2012, the State filed another motion to proceed wit h an adjudication of guilt. (CR, 42). The State alleged in part that Appellant failed to pay restitution as previously ordered, and that Appellant was d elinquent $4,798.00. (CR, 43). On May 31, 2013, Appellant pleaded “true” to the allegations in the motion to proceed with an adjudication of guilt, and went “open” to th e trial court for punishment (i.e., Appellant and the State agreed that the trial court would determine punishment). ( RR4, 5-6; CR, 49-50).

3. The trial court adjudicates A ppellant’s guilt, sentences Appell ant to 10 years in prison, but does not impose restitution in the Judgment Adjudicating Guilt
. On May 31, 2013, a hearing was held on the State’s motion to p roceed with an adjudication of guilt. (RR4). While on community supervision , Appellant was18 unable to pay the restitution becau se he had become homeless an d destitute. (RR4, 8-9). Appellant then stopped reporting because his probation of ficer told him that he would be arrested if he reported to her again and did not ha ve money to pay towards the restitution. (RR4, 9). The state presented no evide nce showing that Appellant’s failure to pay the restitution was willful. (RR4). The trial court adjudicated A ppellant’s guilt, found him guilt y of Burglary of a Habitation, and entered a Judgment Adjudicating Guilt . (RR4, 25; CR, 51-52). The trial court sentenced Appellant to 10 years in the Institut ional Division of the Texas Department of Criminal Justice (“TDCJ”). (RR4, 26; CR, 5 1-52). No fine or restitution was imposed on Appellant either in open court or in the Judgment Adjudicating Guilt . (RR4, 26-27; CR, 51).

4. On October 28, 2013, the trial court grants Appellant’s Motion for Shock Probation and places Appellant on community supervision f or five years. On October 1, 2013, Appellant f iled a Motion for Shock Probati on. (CR, 56- 58). During the hearing on Appella nt’s motion, evidence regardi ng Appellant’s inability to pay the restitution and destitution was presented, including the fact that Appellant had been living in a vehicle. (RR5, 8). On October 28, 2013, the trial court granted Appellant’s Motio n for Shock Probation, and entered the Order Placing Defendant on Probation . (RR5, 10; CR,19 60). The trial court sentenced Appellant to five years of comm unity supervision. (CR, 60-61). As a condition of community supervision, the trial court ordere d Appellant to pay restitution of $9,085, of wh ich $6,178 was still due, to be paid at the rate of $110.00 per month. (RR5, 10; CR, 63). Appellant raised a time ly objection to restitution being imposed in the Order Placing Defendant on Probation or as a condition of community sup ervision. (RR5, 8-10).20 IX. Summary of the Arguments In Issue One, Appellant will argue that the Court of Appeals e rred when it dismissed Appellant’s appeal for want of jurisdiction because: (1) Texas Code of Criminal Procedure Article 44.02 allows appeals from criminal a ctions, and under this Court’s holding in Bautsch v. Galveston, 11 S.W. 414 (Tex. Ct. App. 1889), a hearing on a motion for shock probation is a criminal action ; and (2) the issue appealed was an unconstitutional imposition of restitution, and not the granting of shock probation. As a result, Appellant will argue that this C ourt should hold that a hearing on shock probation is a “criminal action” and that a person may appeal an unconstitutional imposition of restitution in a shock probat ion order. In Issue Two, as an alternative to Issue One, under Houlihan and Basaldua , Appellant asks this Court to tr eat this case as a writ of manda mus or habeas corpus, consider the case on its merits, and grant the requested relief

. Appellant will thus ask thi s Court to modify the Order Placing Defendant on
Probation dated October 28, 2013 (shock pr obation order), and delete the restitution order.21 X. Argument 1. Issue One: The Court of Appeals erred when it dismissed Appella nt’s appeal for want of jurisdiction because: (1) Texas Code of Crim inal Procedure Article 44.02 allows a ppeals from criminal actions, a nd under this Court’s holding in Bautsch v. Galveston, 11 S.W. 414 (Tex. Ct. App. 1889), a hearing on a motion for shock probation is a criminal action ; and (2) the issue appealed was an unconstitutional imposition of restitution, and not the granting of shock probation. As a res ult, this Court should hold that a hearing on shock probation is a “crimi nal action” and that a person may appeal an unconstitutional imposi tion of restitution in a shock probation order. i. Although Texas Code of Crimina l Procedure Article 42.12 § 6 (shock probation statute) does not specifically provide the rig ht to appeal a condition of shock probation or part of the shock probation order, a shock proba tion proceeding is a criminal action, and Article 44.02 and Bautsch v. Galveston confer the right to an appeal from a criminal action
. Texas Code of Criminal Procedure Article 42.12 § 6 does not sp ecifically provide that a defendant may appeal from a judgment granting or denying shock probation. Nor does it specifica lly provide that a defendant m ay appeal a condition of shock probation or part of t he shock probation order. Howev er, Article 42.12 § 6 does not prohibit an appeal in either situation. In 1992, this Court held that neither the federal nor Texas Con stitutions provide that a defendant has a ri ght to appeal a criminal judgm ent, and the right of appeal is created by statute and extends to any criminal defend ant who has been the subject of an appealable order. Olowosuko v. State , 826 S.W.2d 940, 941 (Tex. Crim. App. 1992). However, the facts in Olowosuko are not similar to the facts in22 Appellant’s case. Further, this Court should overrule the swee ping holding in
Olowosuko because Olowosuko was based on a subsection of the statute that has since been substantially ame nded by the legislature.
In Olowosuko , the issue before this Court specifically addressed the right to appeal an order placing a defenda nt on deferred adjudication co mmunity supervision. Id . at 941. The defendant pleaded guilty to possession of cocaine with intent to deliver, and the trial court placed the defendant on deferred adjudication community supervision for a period of ten years. Id . The State subsequently moved to adjudicate the defendant’s guilt, alleging that he vio lated several conditions of community supervision. Id . The trial court found the allegations to be true, set aside the prior order deferring adjudication, proc eeded to adjudge the defendant guilty of committing th e originally charged offense, and sentenced the defendant to prison for life. Id

. After the court of appeals affirmed the conviction and sentence , the issue before this Court was whether “[ T]he court of appeals erred in. ..holding that petitioner could not challenge the trial court’s determination to proceed with an adjudication of guilt.” Id . This Court held that the c ourt of appeals did not err, finding that “...the Legislature meant what it said in Article 42.12, § 5(b): No appeal may be taken from this determination [to proceed with an adjudication of guilt]..” Id . at 942.23 However, this holding was based on a now-amended portion of Art icle 42.12, which previously held: On violation of a condition of p robation imposed under...this S ection, the defendant may be arrested a nd detained...The defendant is e ntitled to a hearing...limited to the determination by the court of...w hether it proceeds with an adjudication of guilt on the original charge. No appeal may be taken fro m this determination...
See Tex. Code Crim. Proc. Art. 42. 12 § 5(b) (1992). This language was legislatively amended as of June 15, 2007. See Acts 2007, 80th Leg., ch. 1308 (S.B. 909), §§ 5 & 9, effective June 15, 2007. There no longer is a prohibition against an appeal from a deferred adjudication order. Thus, any judgment arising from a hearing on an adjudication of guilt held on or after Jun e 15, 2007 may be appealed. See Durgan v. State , 240 S.W.3d 875, 877-878 (Tex. Crim. App. 2007); see also Pizana v. State , 398 S.W.3d 728, 730 (Tex. App. San Antonio 2009). Further, even if defendant may generally not attack the origina l plea to be attacked in an appeal challenging the tria l court’s determination to adj udicate guilt, under
Nix v. State , 65 S.W.3d 664, 667-668 (Tex. Crim . App. 2001), a void judgmen t permits the original plea of deferred adjudication to be attack ed if the judgment is void because the record reflects that there is no evidence to s upport the conviction. As a result, this Court should overrule the sweeping holding in Olowosuko because Olowosuko was based on a subsection of the statute that has since been substantially amended by the leg islature, and in fact the subse ction no longer24 exists. See Olowosuko , id . at 942, citing Williams v. State , 592 S.W.2d 931 (Tex. Crim. App. 1979) (Holding based on the prior subsection, so the holding was that the decision to proceed with an adjudication of guilt is one of “absolute nonreviewable discretion.”). Moving on to Article 42.12 § 6, t he entire text of the section is as follows: Sec. 6. Continuing Court Ju risdiction in Felony Cases. (a) For the purposes of this sec tion, the jurisdiction of a co urt imposing a sentence requiring imprisonment in the Texas Departm ent of Criminal Justice for an offense other than a state jail felo ny continues for 180 days from the date the execution of the sente nce actually begins. Before the expi ration of 180 days from the dat e the execution of the sentence actually begins, the judge of the cou rt that imposed such sentence may on his own motion, on the motion of t he attorney representing the state, or on the written motion of th e defendant, suspend further execution of the sentence and place the defendant on community supervisio n under the terms and conditio ns of this article, if in the opinion of the judge the defendant w ould not benefit from further imprisonment and: (1) the defendant is otherwise eligible for community supervision under th is article; and (2) the defendant had never b efore been incarcerated in a penitentiary serving a sentence for a felony. (b) When the defendant or the attorney representing the state files a written motion requesting suspension by the judge of further execution of the sentence and placement of the defendant on community supervision, and when requested to do so by the judge , the clerk of the court shall request a copy of the defendant’s reco rd while imprisoned from the Texas Department of Criminal Justice or, if the defendant is confined in county jail, from the sheriff. Upon re ceipt of such request, the Texas Department of Criminal Justice or the s heriff shall forward to the judge, as soon as possible, a full and com plete25 copy of the defendant’s record while imprisoned or confined. Wh en the defendant files a written mo tion requesting suspension of f urther execution of the sentence and pl acement on community supervisio n, he shall immediately deliver or cause to be delivered a true an d correct copy of the motion to the office of the attorney repres enting the state. (c) The judge may deny the motion without a hearing but may no t grant the motion without holding a hearing and providing the at torney representing the state and the de fendant the opportunity to pre sent evidence on the motion. As Article 42.12 § 6 clearly shows, there is no prohibition aga inst an appeal from a judgment of shock probation. And, the right to an appeal need not be provided in the same statute that provides for certain relief or explains a particular procedure. There is no rule that Appellant knows of that mandates such a narrow rule. A defendan t’s right of appeal comes from Texas Code of Criminal Procedure Article 44.0 2, which provides, “[A] defendant in any criminal action has the right of appeal under the rules hereinafter prescribed....” Tex. Code Crim. Proc. Art. 44 .02 (2015). This conclusion is supported by Texa s Rule of Appellate Procedure 25 .2, which provides that “a defendant in a criminal case has the right of appeal under Code of Criminal Procedure article 44.02 and these rules. The trial cou rt shall enter a certification of the defendant’s right of appeal each time it e nters a judgment of guilt or other appealable order.” Tex. Rule App. Proc. 25.2(a) (2) (2014).26 The next question is what is a “criminal action”? In 1889, the Texas Court of Appeals, this Court’s predecessor court, 2 held: “...[A] criminal action is prosecu ted in the name of the State of Texas against the person accused, and is conducted by some officer or person acting under the authority of the State, in accordance w ith its laws.”
Bautsch v. Galveston , 11 S.W. 414, 415 (Tex. Ct. App. 1889). The Texas Court of Appeals continued by specifically defining a “criminal action” as any part of the procedure in which “the law pr ovides for bringing offenders to justice.” Id

. In a hearing for a motion for s hock probation, the State, judge , and defendant are all present, and the authority is derived from th e laws of Texas. Thus, a hearing on a motion for shock probation is clearly a “c riminal action” under the precedence in Bautsch : the State, judge, and defendant are all present, and the State alleges that the d efendant committed violations o f Texas law. In fact, all parts of the criminal adjudication process in Texa s is a “criminal action.” A hearing on a motion fo r shock probation is as much of a criminal action as a new trial or a new trial on punishment, which under Texas Rule of Appellate Procedure 21.1(a) is defined as “the rehearing of a criminal ac tion after the trial court has, on the defendant’s mo tion, set aside a finding or ve rdict of guilt,” and

2 The Court of Appeals was created by the Texas Constitution of 1876, Article V, Section 4, which removed all criminal juris diction from the Supreme Court. In September 1891, a constitutional amendment removed all civil jurisdiction from th e Court of Appeals, and its name was changed to the Court of Criminal Appeals. See Texas Archival Resources Online, http://www.lib.utexas.edu/ta ro/tslac/50019/tsl-50019.html , last accessed on October 29, 2015.27 under 21.1(b) as “a new hearing of the punishment stage of a cr iminal action after the trial court has, on the defe ndant’s motion, set aside an as sessment of punishment without setting aside a finding or verdict of guilt. ” See Tex. Rule App. Proc. 21.1 (2015). Other explicit or implicit defin itions of “criminal action” sup port Appellant’s arguments. For instance, Texas Penal Code § 3.03(a) provides that “[W]hen the accused is found guilty of more than one offense ar ising out of the same criminal episode prosecuted in a single criminal action , a sentence for each offense for which he has been found guilty shall be pronounced. ..” Tex. Pen. Code § 3.03(a) (2015) (emphasis supplie d). Here, “criminal action” obviously refers to a trial, where like a hearing fo r a motion for shock probation, t he State, judge, and defendant are all present, and the authority is derived from th e laws of Texas. See , e.g ., Thomas v. State , No. 05-12-00392-CR, 2013 Tex. App. LEXIS 2095, 2013 WL 1277885 (Tex. App. Dallas, Mar ch 1, 2013) (unpublished) (def endant was prosecuted and convicted for seven difference sentences in a si ngle criminal action). And in Duran v. State , 844 S.W.2d 745, 747 (Tex. Crim. App. 1992) (Baird, J. concurring), Judge Baird wrote that the focus of the Court in the case should be to define “criminal action.” Id . Because “criminal action” is not defined in the Texas Penal Code, Judge Baird cite d Black’s Law Dictionary, whi ch defines28 “criminal action” as a “[P]roceeding by which person charged wi th a crime is brought to trial and either found not guilty or guilty and s entenced, or an action, suit, or cause instituted to punish an infraction of criminal l aws.” Id . (internal citations omitted). Based on an old version of the Code of Cri minal Procedure, Judge Baird felt that an order that suspends the imposition of a sentence is not a “criminal action.” Id

. But in a judgment of shock probation, a defendant is indeed originally sentenced and sent to prison, and within 180 days, t he trial court may “...[S]uspend further execution of the sentence and place the d efendant on community supervision...” Tex. C ode Crim. Proc. Art. 42.12 § 6 (a) (2013). Other authority in which “criminal action” is defined that supp orts Appellant’s arguments are as follows: in Ohio, a “criminal acti on” or “criminal proceeding” implies a “formal process involving a court.” See State v. Wimley , 2011-Ohio-5639, 2011 Ohio App. LEXIS 4607, 2011 WL 5188091 (Ct. App. Ohio, 9 th Dist. 2011); see also People v Fisher , 167 Misc.2d 850, 635 NYS.2d 1002 (Crim. Ct., Richmond County 1995) (A “criminal action” is a court proceeding during which a prosecu tion is conducted “against a p arty charged with a crime.”); State v. Curran , 628 P.2d 1198, 1202 (Ore. 1981) (“Criminal action means an action at law by means of which a person is acc used and tried for the commission of an offense.); State v. American-News Co ., 253 N.W. 492, 496 (S.D. 1934) (“A criminal action is one prosecuted by the state as a party, against a29 person charged with a public offense, for the punishment thereo f.”); In re Dervaes , 81 B.R. 127, 129 (Bankr. S.D. Fla. 1987) (A “criminal action” i s one brought to enforce criminal law. Criminal law is (a) a legislative enactme nt (b) applicable to at least a class (c) prohibiting specified conduct and (d) prov iding punishment by fine payable to, or imprisonmen t by, the state (e) upon the sta te's complaint.). Thus, the trial court correctly certified this case for appeal by signing the Certification of Appellant’s Right of Appeal, certifying that t his is a criminal case, and the order to be appealed is entitled Order Placing Defendant on Probation signed by the trial court on October 28, 2013, in which the tri al court placed the defendant on community supervisio n under Texas Code of Criminal Procedure Article 42.12, § 6, the shock probation statute. (CR, 79). The trial court further certified that the order dated October 28, 2013 is an appealabl e order, and that Appellant has the right of app eal under the Texas Rules of Appe llate Procedure. (CR, 79); see Tex. Rule App. Proc. 25.2(a)(2) (2013). Appellant is “a defen dant in (a) criminal action” and thus has the right of appeal in this case. Although the shock probation statute does not specifically provide the right to appeal a condition of shock probation or a part of the shock probation order, a sh ock probation proceeding is a criminal action, and Article 44.02 and Bautsch confer the right to an appeal from a criminal action.30 ii. The issue appealed was the unc onstitutional imposition of restitution in the shock probation order, and not the granting of shock probation. The imposition of restitution unconstitutional ly enlarged Appellant’s punishment and sentence in violation of th e double jeopardy clause. This result should not be allowed by th is Court because absent restraints imposed by this Court and the right to appeal such trial court error, a trial court may impos e any punishment as part of shock probation, however onerous. Appellant now addresses the issue that the Court of Appeals de clined to address, which is whether the trial court abused its discretion by imposing as a condition of community supervision or as part of the shock prob ation order an order of restitution on Appellant in the shock probation order dated October 28, 2013 even though there was no restitution imposed on May 31, 20 13 in the Judgment Adjudicating Guilt . A summary of the timeline is as follows: Judgment Date Punishment Order of Deferred Adjudication December 7, 2007 Suspended, deferred adjudication Judgment Adjudicating Guilt May 31, 2013 10 years TDCJ, no restitution, nearly five months i n prison Order Placing Defendant October 28, 2013 5 years community supervision, on Probation (shock) $9,085 restitution In the May 31, 2013 Judgment Adjudicating Guilt , Appellant was punished because as a result of this order, Appellant spent nearly five months in prison before he was “shocked” and retu rned to the trial court. So, a s the following will show, when the trial court imposed the shock probation order da ted October 28, 2013 and added the second punishment of restitution that was or iginally imposed in the Order of Deferred Adjudication , but that was missing from the Judgment31 Adjudicating Guilt dated May 31, 2013 (missing from both the judgment and the oral order imposed in open court), the trial court abused its d iscretion and violated Appellant’s Fifth Amendment right s by punishing him twice for t he same conduct. First, appellate review of the amount of restitution ordered b y the trial court is limited to whether the court a bused its discretion in settin g the amount. See
Collins v. State , 754 S.W.2d 818, 823 (Tex. App. Houston [1st Dist.] 1988, pet. ref .); Speth v. State , 6 S.W.3d 530, 534 (Tex. Crim. App. 1999); Idowu v. State , 73 S.W.3d 918, 923 (Tex. Crim. App. 2002). Second, although the trial court’ s granting of shock probation was correct, the imposition of the restitution order was not. A trial court has jurisdiction to grant shock probation for a limited pe riod after the defendant begins a sentence of incarceration. Tex. Code Crim. Proc. Art. 42.12 § 6 (2013). Th e trial court’s authority to grant shock probation extends only from the date t hat the execution of the sentence actually begins un til the expiration of 180 days f rom that date Tex. Code Crim. Proc. Art. 42.12 § 6(a) (2013). The Judgment Adjudicating Guilt was dated May 31, 2013 (beginning of incarceration) and the Order Placing Defendant
on Probation was dated October 28, 2013 (shock probation order). Because t he shock probation order was ente red within 180 days of the Judgment Adjudicating
Guilt , the trial court had jurisdicti on to enter the shock probation order. However, the trial court erred and abused its discretion when it imposed32 restitution in the shock probation order. Although the amount o f restitution imposed upon a defendant is a matter for the trial court’s dete rmination, due process requires that there be evidence in the record to show t hat the amount set by the court has a factual basis. Cartwright v. State , 605 S.W.2d 287, 289 (Tex. Crim. App. 1980); Botello v. State , 693 S.W.2d 528, 530 (Tex. App. Corpus Christi 1985, pet. ref .). Here, (1) there was no factual basis for restitution in th e record when the trial court adjudicated Appellant’s guilt on May 31, 2013, (2) no restitution was rendered or imposed in open court, and (3) the Judgment Adjudicating Guilt dated May 31, 2013 does not contain any order of restitution. As a r esult, the trial court abused its discretion when it ordered restitutio n in the shock probation order. Thus, because Appellant was already punished once in the May 3 1, 2013 Judgment Adjudicating Guilt because as a result of this order, Appellant spent nearly five months in prison before he was “shocked” and return ed to the trial court and no restituti on order was entered, Appellant cannot be punished again in the shock probation order by a revival and imposition of restit ution. Under the Fifth Amendment, no person “shall be subject for the same offen ce to be twice put in jeopardy of life or limb.” U.S. Const. Amend. V. The Fifth A mendment offers three distinct constitutional protections: (1) protection again st a second prosecution for the same offense after acquittal; (2) protection against a second prosecution for the same offense after conviction; and (3) protection against m ultiple punishments33 for the same offense. See North Carolina v. Pearce , 395 U.S. 711, 717 (1969), overruled on other grounds by Alabama v. Smith , 490 U.S. 794 (1989); See
also Lopez v. State , 108 S.W.3d 293, 295-296 (Tex. Crim. App. 2003). Because the trial court imposed punished in the form of restitution in the shock probation order after Appellant already spent ti me in prison due to the May 31, 2013 order, the trial court punished Appellant two times for the same offense, so thi s punishment violates the Fifth Amendment. Third, “restitution is punishment.” Ex parte Cavazos , 203 S.W.3d 333, 338 (Tex. Crim. App. 2006); see also Cabla v. State , 6 S.W.3d 543, 546 (Tex. Crim. App 1999) and Martin v. State , 874 S.W.2d 674, 678 (Tex. Crim. App. 1994). The Judgment Adjudicating Guilt dated May 31, 2013 imposed punishment on Appellant in the form of prison time, but not restitution. Whe n the trial court imposed restitution in the shock probation order, it punished A ppellant a second time for the same conduct, which violates the Double Jeopardy C lause of the Fifth Amendment. Fourth, the fact that restitution was not ordered in open cour t on May 31, 2013 is dispositive because an or der of restitution must be inc luded in the oral pronouncement to be valid. In Weir v. State , 252 S.W.3d 85 (Tex. App. Austin 2008), affirmed in part and reversed in part , 278 S.W.3d 364, 367 (Tex. Crim. App. 2009), the defendant was ordered to pay restitution as a c ondition of34 community supervision. Id . at 86. The State filed a motion to revoke the community supervision. Id . During the revocation hearing, the trial court adjudicated the defendant guilty and sentenced him to prison fo r ten years. Id . at 87. In its oral pronouncement, t he trial court failed to menti on the previously ordered restitution or court costs. Id . The written judgment arising out of the same revocation hearing, however, re quired the defendant to pay the restitution and the

court costs. Id

. The Third Court of Appeals held that restitution must be prono unced orally to be included in the written judgment. Id . at 87-88. The Court also held that the costs provision in the written j udgment had to be deleted after deciding that court costs are at least in part punitive. Id . at 88-90. The State petitioned this Court for review, arguing that the a ssessment of

court costs need not be included in the oral pronouncement of sentence bec ause

court costs are not punitive

. See Weir , 278 S.W.3d at 365 (emphasis supplied). This Court agreed in part, holding that court costs indeed are not punitive, and therefore did not have to be inc luded in the oral pronouncement of sentence in that case as a precondition to their inclusion in the trial court’s written judgment. Id . at 367. The remainder of the judgment , however, was affirmed, so restitution , unlike court costs, were affirmed to be punitive (res titution is punis hment). Id

. See also
Alexander v. State , 301 S.W.3d 361, 367 (Tex. App. Fort Worth 2009, no pet .) (An35 order of restitution must be in cluded in the oral pronouncement to be valid). Thus, because the trial court did not order restitution in ope n court on May 31, 2013, the trial court may not revive the restitution issue months later and impose it on Appellant in the shock probation order. Appellant also points to Abron v. State , 997 S.W.2d 281, 282 (Tex. App. Dallas 1998), where the trial court assessed a fine of $2,000 in the Order of Deferred Adjudication

. Id . When the trial court later adjudicated the defendant’s guilt, it failed to orally pronounce the fine, but it included the fine in the written judgment. Id . The Court of Appeals held that when a defendant receives defe rred adjudication community supervision, no sentence is imposed. Id . And when guilt is adjudicated, the judgment of adjudication sets aside the und erlying Order of Deferred Adjudication Id . As a result, the defendant is entitled to have his sentence pronounced orally in his presen ce, and the oral pronouncement c ontrols when there is a conflict between it and the written judgment. Id . Since the trial court did not assessed the fine as part of th e defendant’s sentence after gui lt was adjudicated, the Court of Appeals deleted th e fine from the judgment. Id

. In summary, if restitution is not imposed in open court or ent ered into a judgment, the issue of restituti on is finally settled, and it c annot be revived and imposed at a later time. In Appellant’s case, when the trial c ourt entered its May 31, 2013 Judgment Adjudicating Guilt , and Appellant spent months in prison,36 Appellant’s punishment was imposed. Since no restitution was o rdered in open court in Appellant’s “punishment ” arising from the May 31, 2013 Judgment Adjudicating Guilt , when the trial court enter ed the shock probation order on October 28, 2013 and imposed restitution, the trial court punished Appellant a
second time for the same conduct . This violates the Double Jeopardy Clause. The remedy here is to delete the restitution order in the shoc k probation order. An order of restitution is part of the judgment and does not merely act as a condition of community supervision. In Bailey v. State , 160 S.W.3d 11 (Tex. Crim. App. 2004), this Court noted that the restitution statute, Texa s Code of Criminal Procedure 42.037, states in relev ant part that “the imposition of the order [of restitution] may not unduly complicate or prolong the sente ncing process.” Id

. at 15; see Tex. Code Crim. Proc. Art. 42.037(e) (2004). This statement “ implies that restitution is imposed as part of the original sentence, a nd that the sentence is not complete until restitution is imposed.” Bailey , id . at 15. This Court also noted that “Article 42.01(1)(25) presc ribes that ‘the judgment’ shoul d reflect ‘....a statement of the amount of restitution ordered.’” Id

. Appellant also notes that Texas Code of Criminal Procedure Art icle 43.037 provides that a trial court may order the defendant “to make re stitution to any victim of the offense or to the compensation to victims of crim e fund...” Tex. Code Crim. Proc. Art. 43.037(a) (2015). A trial court’s power to re strain a person lies in37 its power to enter a judgment, and Article 43.037 and this Cour t’s explanation in Bailey make it clear that an order of restitution is part of the judg ment and not merely a condition of community supervision. See also Tex. Code Crim. Proc. Art. 42.12 § 23(a) (2015) (“[T]he judge shall enter the amount of re stitution or reparation owed by the defenda nt on the date of revocation in the judgment in the case”) (emphasis added) and Tex . Code Crim. Proc. Art. 42.12 § 2 (2015) (Restitution is part of the judgment and does not merely act as a condition of community supervision because bot h the state and the victim of a criminal offense may hold a statutory restitution lien arising from any judgment in a criminal case that is entered. The victim has a lien to secure the amount of restitution to which the victim is entitled under the order of a court in a criminal case, and the state has a lien to secure the amount of fines or costs entered against t he defendant in the judgment in a felony criminal case.). Finally, even if a restitution order is not included in a judg ment but added to the conditions of community supervision, an invalid condition o f community supervision must be deleted. See Ex parte Pena , 739 S.W.2d 50, 51 (Tex. Crim. App. 1987) and Reasor v. State , 281 S.W.3d 129, 135 (Tex. App. San Antonio 2008, pet. ref .) (community supervision orde r modified to delete portion of judgment imposing restitution); Gray v. State , 69 S.W.3d 835, 837 (Tex. App. Waco 2002, no pet .).38 iii. The cases cited by the Court of Appeals do not support its conclusion that it lacks jurisdiction. The cases cited by the Court of Appeals in its Memorandum Opinion do not deal with an unconstitutional imposition of restitution in an o rder granting shock probation. In Perez v. State , 938 S.W.2d 761, 762-763 (Tex. App. Austin 1997, pet. ref. ), the defendant complained of a condition of shock probation t hat required him to report to law enforcement to complete paperwork for sex offender registration within seven days. Id . at 762. Perez did not involve a challenge to the imposition of unconstitu tional restitution in the order grantin g shock probation.
In Pippin v. State , 271 S.W.3d 861 (Tex. App. Amarillo 2008, no pet. ), the defendant was convicted of state jail felony theft. Id . at 861. The defendant is assessed two years in state jail, and the sentence is ordered t o run consecutive to another sentence. The defendant files a timely motion for shoc k probation, which is granted. Id . at 861-862. On appeal, the de fendant: (1) argued that the tr ial court erred by denying shock probation in the other case that he was required to serve consecutive to the sentence before the court, and (2) excepted to a condition of the shock probation. Id . The court found that the appellant’s case “...presents a nov el question in that he is effectiv ely contesting a condition of th e trial court’s order granting of shock probation in the case on appeal, while simult aneously appealing the trial court’s denial of shock probation in multiple cases t hat are not on appeal.”39 Id . at 863-864. Pippen did not involve a challenge to the judgment granting shock probation itself.
In Roberts v. State , No. 04-10-00558-CR, 2010 Tex. App. LEXIS 8940, 2010 WL 4523788 (Tex. App. San Antonio Nov. 10, 2010, pet. ref. ) (mem. op., not designated for publication), as a condition of shock probat ion, the defendant was ordered to pay $70,000.00 to a children’s charity of his ch oice. Id . at *1-2. This did not appear to be imposed as restitution, but merely as a condition of shock probation. The defendant argued that he was not appealing the grant of shock probation, but only the terms a nd conditions of the shock proba tion, and specifically the condition of the $70,000 charitable contributi on. Id . at *2. Relying

on Perez , 938 S.W.2d 761, the court of appeals found that it had no jurisdiction over the appeal. Id . Again, the issue was not the imposition of restitution in the shoc k probation order. Finally, in Thursby v. State , 05-94-01772-CR, 1997 WL 472310, 1997 Tex. App. LEXIS 4378 (Tex. App. Dallas Aug. 20, 1997, pet. ref. ) (mem. op., not designated for publication), af ter being placed on shock probat ion, the appellant was charged with new offenses, pleaded true to the new offenses , so his shock probation was revoked. Id . at *1-3. Thursby bears no relevance to Appellant’s case. As a result, none of the cases relied upon by the Court of Appeals support its conclusion that it lacks juri sdiction of Appellant’s case.40 iv. Conclusion The Court of Appeals erred when it dismissed Appellant’s appeal for want of jurisdiction because: (1) Texa s Code of Criminal Procedure A rticle 44.02 allows appeals from criminal actions, and under this Court’s holding i n Bautsch , a hearing on a motion for shock probation is a criminal action; and (2) t he issue appealed was an unconstitutional imposition of restitution, and not the granting of shock probation. As a result, this Court should hold that a hearing o n shock probation is a “criminal action” and that a per son may appeal an unconstitutio nal imposition of restitution in a shock probation or der. As a remedy, this Court should modify the Order Placing Defendant on Probation dated October 28, 2013 (shock probation order), and delete the restitution order.41 2. Issue Two: In the alternative, under Houlihan and Basaldua , Appellant asks this Court to treat this case as a writ of mandamus or hab eas corpus, consider the case on its merits, and grant the requeste d relief. i. Argument Without waiving the arguments in Issue One, in the alternative, Appellant argues that Houlihan and Basaldua allow this Court to treat this case as a writ of mandamus or habeas corpus, consider the case on its merits, and grant the relief requested in Issue One. 3 In Houlihan v. State , 579 S.W.2d 213 (Tex. Crim. App. 1979), the defendant appealed the trial court’s order that deni ed his motion for shock probation. Id . at 214-215. This Court held that it was without appellate jurisdiction to consider an order denying a motion for shock probation. Id . at 215- 216 (emphasis supplied). As a res ult, this Court held, “[T]he o nly approach is to treat this purported appeal as an application for the extraordi nary writ of mandamus.” Houlihan , 579 S.W.2d at 217. Appellant does not appeal an order denying or granting his motion for shock probation, but rather appeals the unconstitutional imposition of r estitution as part of the shock probation order. Therefore, Appellant’s case may be considered as a mandamus act ion. A writ of mandamus will issue to correct trial court actions w hen there has been a clear abuse of discretion and where the remedy by appeal is inadequate. See In re Kuntz , 124 S.W.3d 179, 181-182 (Tex. 2003). This Court has both

3 This argument was raised by Appellant in the Court of Appeals i n a letter brief dated April 13, 2015.42 constitutional and statutory authority to issue the writ of man damus in criminal law matters. Tex. Const. Art. 5, § 5 ; Tex. Code Crim. Proc. Art. 4 .04 § 1 (2015). Mandamus is the proper remedy to set aside an action that has a lready been taken, such as an improper order of the trial court. Garcia v. Dial , 596 S.W.2d 524, 529 (Tex. Crim. App. 1980); State ex rel. Bryan v. McDonald , 662 S.W.2d 5, 9 (Tex. Crim. App. 1983); In re Wise , 20 S.W.3d 894, 895 (Tex. App. Waco 2000,
no pet .) (Equitable principles govern mandamus relief). The prerequi sites for a writ of mandamus are: (1) the lower court must have a legal dut y to perform a nondiscretionary act, (2) the party must make a demand for perf ormance, and (3) the lower court must refuse that request. See Stoner v. Massey , 586 S.W.2d 843, 846 (Tex. 1979). These conditions m ust relate to an unequivocal , unconditional, and present duty on the part of the lower court. State ex rel. Curry v. Gray , 726 S.W.2d 125, 128 (Tex. Crim. App. 1987) (opinion on rehearing). A trial court abuses its discretion if it acts without referen ce to any guiding rules and principles, or if the trial court’s act is arbitrary or unreasonable. Downer v. Aquamarine Operators, Inc ., 701 S.W.2d 238, 241-242 (Tex. 1985). A trial court’s erroneous legal conclusion, even in an unsettled area o f law, is an abuse of discretion. Id . Mandamus also lies over an interlocutory order or temporary o rder that the court had no jurisdiction to make. In re Cornyn , 27 S.W.3d 327, 332 (Tex. App. Houston [1st Dist.] 2000, orig. proceeding); see Eckels v. Gist , 743 S.W.2d43 330 (Tex. App. Houston [1st Dist.] 1987, no writ ) (Mandamus is an appropriate remedy to nullify an order entered without legal authority), see also State ex rel. Wade v. Stephens , 724 S.W.2d 141, 143 (Tex. App. Dallas 1987, orig. proceeding)

. Mandamus is available to challenge a void order of the trial c ourt. In re Dilley I.S.D ., 23 S.W.3d 189, 191 (Tex. App. San Antonio 1999, orig. procee ding). Mandamus is also proper when a trial court issues an order beyo nd its jurisdiction, and when a court does so, the relator need not show that he doe s not have an adequate remedy on appeal. In re Southwestern Bell Tel. Co ., 35 S.W.3d 602, 603 (Tex. 2000). Mandamus and prohib ition are specifically availab le in a criminal action if the relator shows: (1) that the act he seeks to compe l or prohibit does not involve a discretionary or judicial decision; and (2) that he h as no adequate remedy at law to redress the harm t hat he alleges will ensue. Simon v. Levario , 306 S.W.3d 318, 320 (Tex. Crim. App. 2009). As Appellant shows in Issue One, the order imposing restitutio n in the shock probation order violates the Double Jeopardy Clause and is void , so mandamus lies. As a result, should this Co urt decline to grant the relie f requested in Issue One by the procedural process outlined, Appellant asks this Court t o exercise its mandamus jurisdiction as allowed in Houlihan and grant the relief requested in Issue On in substance.44 This Court may also exercise its habeas corpus jurisdiction an d grant the relief requested in Issue One in substance. In Basaldua v. State , 558 S.W.2d 2 (Tex. Crim. App. 1977), the defendant appealed an order denying a motion to modify conditions of probation. Id . at 3. The conditions complained of were a fine, court costs, payment for the cost of his court-appointed attorn ey, and submission to a search at the discretion of his probation officer. Id . The defendant filed a motion to modify these conditions, which was denied by the trial court

. Id . The defendant appealed, and this Court fou nd that although it did not have ju risdiction to entertain an appeal of the order denying the motion to modify the conditi ons of probation, this Court may consider the case on its merits because it appea red to be a writ of habeas corpus, as “[I]f the facts raise a proper habeas corpus issue, then the proceedings should be considered as a habeas corpus proceeding since to dismiss the appeal and require a new and separate habeas corpus applica tion would require a useless thing.” Id . at 5-6. Therefore, should this Court dec line to grant the relief reques ted in Issue One by the process outlined in Issue One, or as a mandamus acti on, Appellant asks this Court to grand the relief requested as though this action is a writ of habeas corpus. Like mandamus, in the exercise of its original jurisdic tion, this Court has both constitutional and statutor y power to issue writs of habea s corpus. Tex.45 Const. Art. 5, § 5; see Tex. Code Crim. Proc. Art. 4.04 § 1 (2015); see also Ex parte Powell , 558 S.W.2d 480, 482 (Tex. Crim. App. 1977). Appellant restates the two add itional supporting factors he not ed in the petition for discretionary revie w for the relief requested unde r mandamus or prohibition. First, in its brief , the State agreed that the tr ial court erred in imposing the restitution. See State’s Brief, 5 (“The State agrees that the trial court erred in including restitution in the amount of $6,178 in Appellant’s co nditions of community supervision for shoc k probation.”). This is a judicial admission by the State agreeing that the trial court erred in imposing the resti tution. A judicial admission relieves the opposing party of proving the f act admitted and precludes (estops) the admitting party from disputing it. See Gevinson v. Manhattan Construction Company of Oklahoma , 449 S.W.2d 458, 466 (Tex. 1969) and Tempo Tamers, Inc. v. Crow-Houston Four LTD ., 715 S.W.2d 658, 668 (Tex. App. Dallas 1986). A judicial admission is a deliberate, clear, and unequivocal formal act made by a party, which if true and not modified or e xplained by him, would defeat his right to recovery or defense. Thomas v. St. Joseph Hospital , 618 S.W.2d 791, 794 (Tex. Civ. App. Houston [1st Dist.] 1981, writ ref. n.r.e .). A judicial admission is not “evidence,” but is a “formal concessi on in the pleadings in the case or stipulations by a party or counsel that have the effect of withdrawing a fact from issue and dispensing wholly with the need for proof of the fact.” Bryant46 v. State , 187 S.W.3d 397, 400 (Tex. Crim. App. 2005). The State stating in its brief that “The State agrees that the trial court erred in including restitution in the amount of $6,178 in Appellant’s conditions of community supervi sion for shock probation” could not be any more “ deliberate, clear, and unequi vocal.” Second, Judge Yeary’s dissent in Ex parte Green , WR-82,072-01, 2015 Tex. Crim. App. Unpub. LEXIS 246 (Tex. Crim. App. April 1, 2015) (pe r curiam) provides support to the argumen t that this litigation should en d now. In Green , this Court granted relief because the defendant placed his pro se petition for discretionary review into the pr ison mail system on the date it was due, so the court erred by dismissing the petition as untimely. In his dissent, J udge Yeary argues that the defendant has a valid habea s claim because his trial counse l was ineffective due to failing to object to an improper stacking the defendant’s se ntences. Although this Court granted the out-of-time petition and dismissed the o ther claims, Judge Yeary concluded that he would gr ant relief immediately on the i neffective assistance claim because: “There is little doubt that, even if applicant complains about the stacking order in a new petition for discretionary review, he w ill not get relief for that claim in that proceeding. Who knows whether the pro se Applicant in this case will continue to pursue that clai m if his petition for discretionary review is refused? He might. Or he m ight lose heart and give up hope. Th is Court’s decision today afford s only part of the relief to which Applicant is entitled, and because it only affords relief that is unlikely to result in a timely review of the trial court’s stacking order in his case, he will simply be required to file another postconviction application for writ of habeas corpus at47 some future date if he wants to ob tain the relief to which he i s demonstrably entitled. Because I fail to see the point in that, I respectfully dissent.
Id

. dissent at *7-8 (emphasis supplied). Judge Yeary does not use the phrase “appellate orbit,” but his dissent can be taken as follows: if relief may be granted on the merits of a c laim without violating basic principles of appellate rev iew (i.e., rules regarding pre servation of error, etc.), rather than launch the appellant into what undersigned c ounsel describes as “appellate orbit,” which may take years to reach final resoluti on, a reviewing court should determine the case on its m erits in the first instance.

ii. Conclusion As an alternative to Issue One, under Houlihan and Basaldua , Appellant asks this Court to treat this case as a writ of mandamus or hab eas corpus, consider the case on its merits as argued i n Issue One, and grant the re quested relief. Appellant understands that if th is Court denies the relief requ ested, Appellant may later file a writ of habeas cor pus under Article 11.072 raising these same issues. This writ will likely be denied by the trial court, and then he can appeal the denial to the court of appeals, and then petition this Court for revie w. However, because Appellant is before the Court no w, going the Article 11.072 rou te will take perhaps up to another two years, so rath er than let Appellant fall into this “appellate orbit,” Appellant respectfully asks this Court to grant relief now.48 XI. Conclusion and Prayer For the reasons stated in this Brief, the Court of Appeals has : (1) decided an important question of state and federal law that has not been, but should be, settled by the Court of Criminal Appeals; (2) decided an important ques tion of state or federal law in a way that conf licts with the applicable decisio ns of the Court of Criminal Appeals and the Supreme Court of the United States; an d (3) misconstrued a statute. See Tex. Rule App. Proc. 66.3 (b)-(d) (2015). Appellant respectfully prays that this Court hold that a hearing on shock probation is a “criminal action” and that a per son may appeal an unconstitutio nal imposition of restitution in a shock probation order. Appellant also asks th is Court to modify the Order Placing Defendant on Probation dated October 28, 2013 (shock probation order), and delete the restitution order. Respectfully submitted, Michael Mowla P.O. Box 868 Cedar Hill, TX 75106 Phone: 972-795-2401 Fax: 972-692-6636 michael@mowlalaw.com Texas Bar No. 24048680 Attorney for Appellant

/s/ Michael Mowla By: Michael Mowla49 XII. Certificate of Service This certifies that on October 29, 2015, a copy of this docume nt was served on Lori Ordiway and Lisa Smith of the Dallas County District At torney’s Office, Appellate Division, 133 N. Riverfro nt Boulevard, Dallas, Texas 75207 by email to lori.ordiway@dallascounty.org, lisa.smith@dallascounty.org, and DCDAAppeals@dallascounty.org ; and also on Marissa Elmore at marisa.elmore@dallascounty.org ; and on Lisa McMinn, the State Prosecuting Attorney, by email to Lisa.McMi nn@spa.texas.gov, and John Messi nger, Assistant State Prosecuting Attorney, by email to john.messinger@spa.stat e.tx.us. See Tex. Rule App. Proc. 9.5 (2015) and Te x. Rule App. Proc. 68.11 (2015 ).

/s/ Michael Mowla By: Michael Mowla

XIII. Certificate of Compliance wi th Tex. Rule App. Proc. 9.4 This certifies that this document complies with the type-volum e limitations because this document is compute r-generated and does not exceed 15,000 words. Using the word-count feature of Microsoft Word, the undersigned certifies that this document contains 8,214 words in the document except in the following sections: caption, identity of parties and counsel, table of contents, ta ble of authorities, statement of the case and jurisd iction, statement regarding ora l argument, statement of issues or questions presented, signature, proof of service, certification, certificate of compliance, and appendix. This document also com plies with the typeface requirements because it has been prepared in a proport ionally-spaced typeface using 14-point font. See Tex. Rule App. Proc. 9.4 (2015).

/s/ Michael Mowla By: Michael Mowla

# APPENDIXNo Shepard’s SignalTM

As of: June 28, 2015 11:53 PM EDT Shortt v. State Court of Appeals of Texas, Fifth District, Dallas May 12, 2015, Opinion Filed No. 05-13-01639-CR Reporter 2015 Tex. App. LEXIS 4808 BERNARD WINFIELD SHORTT, Appellant v. THE STATE OF TEXAS, Appellee
Notice: PLEASE CONSULT THE TEXAS RULES OF APPELLATE PROCEDURE FOR CITATION OF UNPUBLISHED OPINIONS. Prior History: [*1] On Appeal from the 194th Judicial District Court, Dallas County, Texas. Trial Court Cause No. F07-00193-M. Core Terms restitution, probation, shock, trial court, community supervision, sentence, conditions, appeals, guilt, pet Case Summary

Overview HOLDINGS: [1]-The parties could not confer jurisdiction on the appellate court even if they agreed to do so because Tex. Code Crim. Proc. Ann. art. 42.12, § 6 (Supp. 2014) did not confer jurisdiction upon an appellate court jurisdiction to consider an appeal from an order imposing shock probation.
Outcome Appeal dismissed. LexisNexis® Headnotes
Criminal Law & Procedure > ... > Probation > Revocation > Proceedings Criminal Law & Procedure > Appeals > Appellate Jurisdiction > Authority of Appellate Court HN1 As other Texas courts have previously held, there is no statutory authority which confers jurisdiction upon an appellate court jurisdiction to consider an appeal from an order imposing shock probation pursuant to Tex. Code Crim. Proc. Ann. art. 42.12, § 6 (Supp. 2014). The statute currently permits appeals of an order revoking probation, Tex. Code Crim. Proc. Ann. art. 42.12, § 23(b)

.Counsel: For Appellants: Michael Mowla, Cedar Hill, TX.

For Appellees: Marissa Elomore, Susan Hawk, Dallas, TX. Judges: Before Justices Francis, Evans, and Stoddart. Opinion by Justice Evans. Opinion by: DAVID EVANS Opinion

MEMORANDUM OPINION Opinion by Justice Evans Appellant Bernard Winfield Shortt appeals from an order granting him shock probation which imposed restitution as a condition of probation. Appellant contends the order violates his Fifth Amendment right against double jeopardy and requests that this court delete the restitution order. The State did not agree there was a constitutional infirmity, but agreed for statutory reasons that the trial court erred by ordering appellant to pay restitution and requested that this Court modify the order to delete the condition requiring restitution. After a review of the issue before us, we dismiss the appeal for want of jurisdiction.
BACKGROUND In January 2007, appellant was indicted for burglary of a habitation. On October 12, 2007, appellant signed a judicial confession and a plea agreement which recommended that he receive seven years’ deferred community supervision as his sentence. Appellant waived trial by jury and entered a guilty plea. The court accepted appellant’s plea but did [*2] not make a finding of guilt and passed the case to a later date. On December 7, 2007, the court held a hearing and placed appellant on seven years’ deferred adjudication and ordered payment of $9,085 in restitution. The conditions for appellant’s community supervision required, among others things, that he make monthly payments toward his restitution, complete 800 hours of community service, and report to a supervision officer. On May 17, 2013, the State filed a motion to revoke probation or proceed with an adjudication of guilt after appellant violated numerous conditions of his probation including failure to pay restitution. At the subsequent revocation hearing, appellant entered a plea of ′′ true ′′ to the State’s allegations. Appellant also signed a plea agreement in which he admitted to violating the conditions of his community supervision including the failure to pay restitution. The trial court concluded that appellant had violated the terms of his probation and entered a Judgment Adjudicating Guilt. This judgment sentenced appellant to ten years’ confinement. The trial court did not orally pronounce a fine or restitution, and the section in the judgment referring to restitution [*3] reads: ′′ Restitution: $N/A. ′′ Appellant began his incarceration on May 31, 2013 and remained incarcerated until October 25, 2013 when he returned to court for a shock probation hearing. At the hearing, the trial court asked appellant if he owed restitution and appellant’s counsel objected. Counsel argued that because the trial court did not pronounce restitution during sentencing at the revocation hearing, the trial court could not include 2015 Tex. App. LEXIS 4808, *2

Page 2 of 4it among the conditions of appellant’s shock probation. At the conclusion of the hearing, the court

granted the request for shock probation, suspended the ten-year sentence of imprisonment, placed appellant on five years’ community supervision and ordered, over counsel’s objection, appellant to pay restitution. The trial court required payment of restitution as a condition of community supervision. Condition (q) of appellant’s conditions of community supervision addressed the issue of restitution: Make restitution in the amount of $6,178.00 for the loss sustained by the injured party. Payments are to be paid through the community supervision officer of this court at the rate of $110.00 per month. First payment is due on or before 11/30/2013 and a like [*4] payment is due on or before the first day of each month thereafter until paid in full[.] Appellant then filed a notice of appeal regarding the restitution provision in the order.
ANALYSIS In his sole point of error, appellant asserts that the trial court erred and violated his Fifth Amendment right against double jeopardy by including restitution as a condition of his shock probation. The State did not concede that a violation of appellant’s Fifth Amendment rights had occurred, but did concede that the court lacked statutory authority to include the restitution in the order granting shock probation. 1 We do not reach these arguments because of the jurisdictional impediment in this case. The trial court certified appellant could appeal this case and, as noted above, both appellant and the State filed briefs treating the case as appealable. But the parties cannot confer jurisdiction on this court even if they agreed to do so. See State v. Roberts, 940 S.W.2d 655, 657 (Tex. Crim. App. 1996) ( ′′ subject matter jurisdiction cannot be conferred by agreement of the parties; jurisdiction must be vested in a court by constitution or statute ′′ ), overruled on other grounds by State v. Medrano, 67 S.W.3d 892 (Tex. Crim. App. 2002) ; see also Zepeda v. State , 993 S.W.2d 167 (Tex. App.—1999, pet. ref’d) (declining to construe appeal for denial of shock probation as a writ of habeas corpus because appellate court lacks original habeas corpus jurisdiction in criminal matters). HN1 As other Texas courts have previously [*6] held, we hold that there is no statutory authority which confers jurisdiction upon an appellate court jurisdiction to consider an appeal from an order imposing shock probation pursuant to article 42.12 of the Texas Code of Criminal Procedure. See T EX . C ODE C

RIM . P ROC . A NN . art. 42.12, § 6 (West Supp. 2014); Perez v. State, 938 S.W.2d 761, 762-63 (Tex. App.—Austin 1997, pet. ref’d) (dismissing appeal for lack of jurisdiction because defendant cannot appeal an order granting shock probation); Pippin v. State, 271 S.W.3d 861 (Tex. App.—Amarillo 2008, no pet.) (same); see also Houlihan v. State, 579 S.W.2d 213 (Tex. Crim. App. 1979) (dismissing appeal of order denying motion for shock probation); Basaldua v. State, 558 S.W.2d 2, 5 (Tex. Crim. App. 1977) (dismissing appeal of

1 The trial court sentenced appellant to ten years’ confinement in the order adjudicating guilt but did not mention restitution. The Texas Court of Criminal Appeals has twice concluded that restitution is punitive in nature. Weir v. State , 278 S.W.3d 364, 366 (Tex. Crim. App. 2009) (citing Ex parte Cavazos , 203 S.W.3d 333, 338 (Tex. Crim. App. 2006)) . The court has held that if restitution is ordered, judgments are required to state the amount of restitution. Bailey v. State , 160 S.W.3d 11, 15 (Tex. Crim. App. 2004) (citing T EX . C ODE C RIM . P ROC . A NN . art. 42.01(25) ). The court of criminal appeals has further concluded that where neither the parties nor the trial court mention restitution during the sentencing hearing or as [*5] part of the oral pronouncement of sentence yet restitution appears in the written judgment, the defendant is entitled to have the order of restitution deleted from the judgment. Burt v. State , 445 S.W.3d 752, 757-58 (Tex. Crim. App. 2014) (citing numerous authorities). Here, we understand the State to argue that because the trial court did not include restitution as part of its pronouncement of its adjudication of guilt, no provision of article 42.12 authorized the court to impose restitution later as a term of probation in the trial court’s shock probation order. The court of criminal appeals has not reached this issue. 2015 Tex. App. LEXIS 4808, *3

Page 3 of 4order denying modification of conditions of shock probation); see also Roberts v. State, No.

04-10-00558-CR, 2010 Tex. App. LEXIS 8940, 2010 WL 4523788 (Tex. App.—San Antonio Nov. 10, 2010, pet. ref’d) (mem. op., not designated for publication) (dismissing appeal of shock probation); Thursby v. State, 05-94-01772-CR, 1997 Tex. App. LEXIS 4378, 1997 WL 472310, at *3 (Tex. App.—Dallas Aug. 20, 1997 , pet. ref’d) (mem. op., not designated for publication) (same). The statute currently permits appeals of an order revoking probation. See T EX . C ODE C

RIM . P ROC . A NN . art. 42.12, § 23(b) (defendant ′′ may appeal the revocation ′′ ). Because appellant appeals from an order granting shock probation, we do not have jurisdiction to consider his appeal.
CONCLUSION We dismiss this appeal for lack of jurisdiction. /David Evans/ DAVID EVANS JUSTICE Do Not Publish T EX . R. A PP . P. 47 JUDGMENT Based on the Court’s opinion of this date, the appeal is dismissed for want [*7] of jurisdiction. Judgment entered this 12th day of May, 2015. 2015 Tex. App. LEXIS 4808, *6

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