NO. 07-06-0057-CR IN THE COURT OF APPEALS FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO PANEL A MAY 17, 2006

______________________________ THADDEUS ALLAN DUKE, AP PELLANT

V. THE STATE OF TEXAS, APPELLE E

_________________________________ FROM THE 251 ST DISTRICT COURT OF POTTER COUNTY; NO. 51197 -C; HONOR ABLE PA

TRICK PI RTLE, JU DGE

_______________________________ Before REAVIS and CAMPBELL and H ANCOCK, JJ. MEMORAND UM OPINION Appella nt, Thaddeus Allan Duke, appeals from a S upple ment al Order Amending Conditions of Probation. We dismiss for want of jurisdiction
. BACKGROUND On January 25, 2006, the trial court amended appellant’scommunit y supervi sion to add, as a condition of his community supervision, that ap pellant participate in a Se x Offender program. On Febru ary 16, 20 06, appe llant filed not ice of appeal, seeking our2

reviewof the trial court’s modification of hiscommunit y supervi sion. Th is court, considering its jurisdiction, ab ated fu rther proceedings and allowed the parties to present an y other considerations as to wh y this co urt had ju risdicti on to con sider t his matter . Neither appellant nor the State filed any additional briefs. LAW
A threshol d questi on in any case i s whether t he co urt has jur isdi cti on over the pe nding contro versy . See State v. Roberts , 940 S.W.2d 655, 657 (Tex.Crim.App. 1996) overruled on other grounds , State v. Medra no , 67 S.W.3 d 982 (Tex.Crim.A pp.2002)
. A court has j uri sdic ti on to deter mine whe ther it has jurisdiction
. Id . at 657 ; Olivo v. State , 918 S.W.2d 519, 523 (Te x.Cr im.App. 1996). Court s wil l add ress the qu esti on of jur isdi cti on sua spo nte
. Ro berts , 940 S.W.2d at 657. For unl ess a co urthas jurisdiction over a ma tter, its acti ons in the m atter are witho ut validity. Id . at 657 n.2. Jurisdiction is the po wer of th e court over the subject matter of the case, conveyed by statute or constitutional provision. Id
. If the j uri sdic ti on of a court of appeal s is not p rop erl y in voked, the p ower of the app ellate court

to ac t i s as abs ent as i f i t di d notexist, Olivo , 918 S.W.2d at 523 (q uoti ng Ex parte Ca ldw ell , 383 S.W.2d 5 8 7, 589 (Tex.C rim.A pp. 19 64). If an app ellate court determines t hat it has n o jurisdi ction to decide t he meritsof an ap peal, theappropri ate action i s to dismi ss. See State v. Taft , 958 S.W. 2d 842, 843 (Tex. Crim.App . 1998).1 The Rul es of App ellateProcedure do not establish jurisdiction of courts of appeals,

but, rather, the Rules provide procedures w hich must be followed in order to invoke jurisdict ion over

a partic ular app eal. See Olivo , 918 S.W. 2d at 523
. 3 ANALYSI S Ordinarily, an order

modifyin g probati on is not subject to appea l. See Basaldua v. S ta te , 558 S.W.2 d 2, 5 (Tex.Crim.A pp.1977) . Case law has al lowed co mplaintsabout a modification order on appeal only when violation of the modified order forms the basis of a subsequent revocation. See Elizond o v. State , 966 S.W.2d 671, 672 (Tex.App.–San Antonio 1998, no

pet.). Under Rules of Appellate Procedure 25.2 and 26.2, 1 a defendant’s appeal from a judgment or other appealable order is perfected by fili ng a notice of appeal within 30 days after the date sentence is imposed or suspended in open court, or after the daythe trial co u rt enters a n appeal able ord er. Because this is a n appeal from a modification of the conditions of probation, and not from a revocation of probation, we find that the order is not appealable and we h ave no jurisdiction. CONCLUS ION Determining that we have no jurisdiction to entertain appellant’s appeal, we dismiss for want of jurisdiction.

Mackey K. Hancock Justice