## IN THE COURT OF CRIMINA L APP EALS OF TEX AS

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B E R N A R D W I N F I E L D S H O R T T , A p p e l l a n t

v . T H E S T A T E O F T E X A S
O N A P P E L L A N T ’ S P E T I T I O N F O R D I S C R E T I O N A R Y R E V I E W

F R O M T H E F I F T H C O U R T O F A P P E A L S

D A L L A S C O U N T Y

K E L L E R , P . J . , f

i l e d a d i s s e n t i n g o p i n i o n i n w h i c h K E A S L E R , H E R V E Y , a n d K E E L , J J . , j o i n e d .

Historically , there was no rig ht to appea l from a judgme nt imposing probation. Def endants had to wait until their probation was revoke d, and then appea l from the order of revoc ation. Eventually , appea ls from the imposition of probation w ere authorized, and that wa s acc omplished by a provision in the adult probation statute that would later become part of Article 42.12, § 23(b). The question in this case is whether an appea l from an order imposing shock probation is authorized by § 23(b), a

nd Iwould hold that it is not.SHORT T DISS ENT — 2

Section 23(b) of

Article 42.12 pr ovides, in part: The rig ht of the defe ndant to appea l for a revie w of the conviction and punishment, as provided by law, shall be acc ord ed t he defe ndant at the time he is place d on community supervision. When he is notified that his co m m unity supervision is revoke d for violation of the conditions of community supervision and he is called on to serve a sentenc e in jail or the Texas Depa rtment of Criminal J ustice, he may appea l the revoc ation. 1
This sectio n p ro v ides a rig ht to appea l in two situations: (1) an appea l of “the conviction and punishment” at the time the defe ndant is place d on community supervision, and (2) an ap p eal of

revoc ation proce eding s. An appeal of sh o ck probation obvi ously does not fall under situation (2) beca use it conce rns p ro b at i o n t h at has not been revoke d. The question is whether it falls under situation (1). Situation (1) specifie s the rig ht to a revie w of the “convic tion and punishment.” The phrase “convic tion and punishment” denotes a single event—whe n a judgme nt is enter ed convicting the defe ndant of a particula

r offe nse and imposing some sort of punishment (whe ther it is incar cer ation or probation). Shock probation m ay be a secon d i n s t an ce of i mposing “punishment,” but § 23(b) does not say “convic tion or punishment.” I n saying that a revie w of a defe ndant’s “convic tion and punishment” will occur at the time the d ef endant is place d on probation, the statute nece ssarily contemplates the defe ndant’s probation being imposed at the time of the judgme nt of conviction, so that it is part of his c onviction and punishment. I n shock probation cases, howe ver, a defe ndant’s “convic tion and punishment” occur s at the time of sentenc ing—not when he is later place d on shock
p robation. When a defenda nt is convicted and given a sentenc e of incar cer ation, he has the right
to appea l his “convic tion and punishment” at that time, so any purported appea l of shock probation

Id. § 23(b). 1SHORT T DISS ENT — 3

at a late r point in tim e is not in fact suc h an appe al, and ther efor e is not authorized by § 23(b). 2
The Court sug g ests, but declines to decide , that we could allow a defe ndant to appea l his shock p ro b at i o n b u t deny him the ability to raise any challeng es to the orig inal conviction in that
appea l. But t hat conclusion seems contra ry to the statutory lang uag e, which expli citly g rants a defe ndant the rig ht to appeal the “convic tion and punishment” “at the time he is place d on community supervision.” I f “at the time he is place d on community supervision” includes the point
at which he is place d on shock probation, then disallowing a challeng e to the conviction in the appea l would require us to rea d the “convic tion” lang uag e out of the statute. The Court should rethink its holding if acc ounting for the result i n g an o m al i es cause s it to disreg ard the actua l lang uag e of the statute, as it does her e. As the Court acknow ledg es, shock probation is g rante d pursuant to an order on a motion, and it is not ref

lected in the judgme nt of a case . I t is a simple fac t that most order s in criminal case s are not appea lable. And whe n the leg islature intends to pe rmit a n appea l from an or der, it tends to do

so expli citly

. Under Ar t

. 64.05, for instance, appea l of the g rant or denial of a motion for DNA testing unde r Chapter

64 is authorized by

the following languag e: An appea l under this chapte r is to a court of appea ls in the same manner as an appea l of any other c riminal matter, except that if the c onvicted per son was convicted in a capital case and was sentenc ed to de ath, the appea l is a direc t a ppeal to the court of criminal appe als. 3
The fac t that Art. 64.05 exis ts, and that its sole purpose is to authorize an appea l, is evidenc e that the leg islature understands that an ex plicit g rant of authority is nece ssary to auth o ri ze an appeal from

We ordinarily do not allow a p ar t y to complain about an earlier proce eding in an appeal 2 from a la ter proc eeding

. See Nix v . State , 65 S.W .3d 664, 667 (Tex. Crim. App. 2001). T E X
. C O D E C R I M
. P R O C . art. 64.05. 3SHORT T DISS ENT — 4

an orde r. There are at least t wo o ther instances in which appea l from an order is authorized. First, althoug h a defe ndant has no rig ht to appea l fr om the denial of a motion to suppress evidenc e, the
State has a rig ht to appea l from the g rant of such a motion. That rig ht and the State’s rig ht to appea l 4
other order s comes specific ally from Art. 44.01, which supports the idea that appea l from an order must be specific ally

authorized. Second, while we have on occa sion ref err ed to nunc pro tunc order s, and say that there is a rig ht to appea l from the gra nt of one, the actual holding of this Court in that reg ard is that there is

a rig ht to appea l a nunc pro tunc judgme nt, not a nunc pro tunc order

. This is beca use when a nunc 5
pro tunc motion is g rante d, the judgme nt is chang ed, “now for then.” So the rig ht to appea l in that kind of ca se does not amount to the rig ht to appeal f rom an orde r. Be cause the rig ht to appea l order s in criminal case s is so rar e, and when it exis ts it is specific
to the particula

r kind of o rd er , we s h ould not rea d a rig ht to appea l from “convic tion and punishment” to encompa ss the rig ht to appeal f rom an orde r g ranting shock proba tion. Whil e it mig ht se em unfa ir to deny someone a

n appea l, the statutory

scheme indicates that
a person p l ace d on shock probation would still have avenue s for raising any leg itimate claims. A constitut i o n al ch al l eng e to a condition of probation can be raised in a habea s application under Article 11.072. Although a non-constitutional challeng e to a condition of probation could not be 6

ra i s ed i n a habea s application, g iven the wide latitude aff orded to a trial court to impose “any

Id. art. 44.01(a )(5)

. 4 Blanton v. State , 369 S.W .3d 896 (Tex. Crim. App. 2012). 5 See T E X
. C O D E C R I M
. P R O C . art. 11.072, §§ 2(b) (2), 3( c). 6SHORT T DISS ENT — 5

r e a s o n a b le c o n d ition” of supervision, one would be hard- presse d to articula te a leg itimate complai n t 7
that would not also be a c onstitut ional g round for challeng ing a conditi on of probation, unless the particula r condition was f

latly prohibited by

statute, in which ca se one c ould obtain relief by way 8
of mandamus. And the leg islature has contemplated that defe ndants often will not have the ability

9

t o co m p l ai n about a condition of probation in a direc t appea l beca use an order amending the conditions of probation is not appea lable. 1 0
When a decision raises as many red flag s as today ’s does, we should not ignor e the war nings.
Sooner or later, the questions that the Court puts off answe ri n g will have to be addre ssed, and I suspect that the results will be less than satisfac tory

. L ike most courts of appea ls that have addre ssed this issue, I would hold that the leg islature has not confe rre d jurisdiction to appea l an order g ranting

1 1

See T E X
. C O D E C R I M
. P R O C . art. 42.12, § 11(a ). 7 See e.g. i d. § 1 1(f) (“A judge may not require a defenda nt to underg o an orchiectomy as 8 a condition of c ommunity supervision.”). See In re St ate ex rel. W

ee ks , 391 S.W .3d 117, 122 (Tex. Crim. App. 2013) (mandamus 9 relief available when ther e is no ade quate r emedy at law a nd a cle ar r ight to the r elief soug ht). See Basaldua v. State , 558 S.W .2d 2, 5 (Tex. Crim. App. 1977) (“We find neither 1 0 constitutional nor statutory authority which would confe r jurisdiction on this court to hear an appea l from an or der . . . a ltering or modify ing pr obationary

conditions.”). See Pippin v. Stat e , 2 7 1 S.W .3d 861 (Tex. App.—Amar illo 2008, no pet.) (finding no 1 1 jurisdictio n t o en t ertain an appea l from an order g ranting shock probation); Perez v. State , 938 S. W

. 2d 761 (Tex. App.—Austin 1997, pet. ref ’d) (same)

. See also W alker v. State , No. 05-16- 0 0 2 2 9-CR, 2017 WL 1090614, *3 (Tex. App.—Dallas Marc h 23, 2017, no pet.) (not desig nated for publication) (same) ; Parker v. State , No. 01-15-00334- CR, 2015 WL 5297526, at *1 (Tex. App.—Houston [1st Dist.] 2015, no pet.) (not desig nated for publication) (same) ; Roberts v. State , No. 04-10-00558- CR, 2010 W L4523788, at *1 (Tex. App.—San Antoni o 2010, pet. ref’d) (not desi gn at ed for publication) (same)

. But see Smith v. State , 518 S.W .2d 641, 645 (Tex. App.—Waco 2017, pet. g rante d) (holding that a judgme nt rende red by a trial court afte r g ranting a motion for shock probation is appea lable, though the decision to g rant shock probation may not be appea lable, and dismiss ing defe ndant’s appea l from orig inal judgme nt of conviction on the g round that it was mooted by judgme nt g ranting shock probation and beca use no notice of appea l was g iven from the judg ment g ranting shock proba tion).SHORT T DISS ENT — 6

shock proba tion. I respe ctfully dissent. Filed: F ebrua

ry 14, 2018 Publis h