1

See Abbott v. State, 245 S.W.3d 19 (Tex.App.–Waco 2007).

IN THE COURT OF CRIMINAL APPEALS

OF TEXAS

NO. PD-1816-07

JOHNNY RAY ABBOTT, Appellant

v.

THE STATE OF TEXAS

ON STATE’S PETITION FOR DISCRETIONARY REVIEW

FROM THE TENTH COURT OF APPEALS

ELLIS COUNTY

HERVEY, J., delivered the opinion for a unanimous Court. HOLCOMB, J., filed a

concurring opinion. 

O P I N I O N

In this case, the court of appeals addressed the merits of appellant’s appeal from the trial

court’s post-judgment order denying appellant’s request for a time credit on his 180-day

incarceration in a county jail as a condition of his community supervision. We decide that the court 1

of appeals should have dismissed the appeal for lack of jurisdiction.

Appellant was convicted of indecency with a child and received a twenty-year prison
Abbott--2

2

This was over two years after appellant began serving his prison sentence on May 25, 2005.

The record is silent on exactly when appellant was returned to the Ellis County jail for a new

punishment hearing. 

3

We note that, under state law, appellant apparently would not be entitled to credit for these

180 days on any prison sentence that he might receive on his indecency conviction in the event that

his community supervision for that conviction is revoked. See Article 42.03, § 2(a), TEX. CRIM.

PROC., (providing for credit on a defendant’s sentence “for the time that the defendant has spent in

jail in said cause, other than confinement served as a condition of community supervision, from the

time of his arrest and confinement until his sentence by the trial court”) (emphasis supplied); Ex

parte Harris, 946 S.W.2d 79, 80-81 (Tex.Cr.App. 1997). 

sentence, which appellant began serving on May 25, 2005. On June 7, 2006, this prison sentence

was overturned on direct appeal, with a new punishment hearing ordered. By June 4, 2007, appellant

had been returned to the Ellis County jail from prison at which time he was released on bond pending

the new punishment hearing. See Abbott, 245 S.W.3d at 20. At the new punishment hearing on 2

August 16, 2007, a jury sentenced appellant to ten years in prison on the indecency conviction and

recommended that this sentence “be suspended subject to community supervision.”

The trial court’s judgment, dated August 16, 2007, “adjudged [appellant] guilty” of the

indecency offense and ordered that appellant be placed on community supervision for ten years

commencing on that day “subject to the conditions of supervision imposed by the Court and served

on the Defendant.” This judgment also recites that appellant’s sentence was imposed on August 16,

2007. The trial court signed another order on August 16, 2007, setting out the conditions of

appellant’s community supervision. One of these conditions required appellant to “[r]emain under

custodial supervision and serve 180 days in the Ellis County Wayne McCollum Detention Center”

beginning on August 18, 2007. This condition further recited that appellant “shall be credited with 3

0 days” on this 180-day incarceration.
Abbott--3

4

This motion alleged that appellant was entitled to this time credit pursuant to Article 42.03,

§ 3, TEX. CODE CRIM. PROC., which provides that the trial judge in the convicting court shall give

a defendant credit on his “sentence” for time that the defendant spent in “jail” pending disposition

of an appeal. Appellant’s motion further alleged that denial of the time credit would also be contrary

to constitutional caselaw and Due Process.

5

See Speth v. State, 6 S.W.3d 530, 532 (Tex.Cr.App. 1999) (“community supervision is not

a sentence or even a part of a sentence”).

On August 24, 2007, appellant filed a motion in the trial court seeking a time credit on this

180 days for the approximately two years of his “previous confinement time.” The State’s response 4

to this motion asserted that appellant is not entitled to any credit on this 180 days, because, as a

condition of appellant’s community supervision, this 180 days is not considered part of appellant’s

sentence for purposes of Article 42.03, § 3. The State’sresponse further asserted that appellant will 5

be entitled to this credit if “his community supervision is revoked and he is ordered to serve a prison

sentence.” The State’s response asserted:

In this case, Defendant was originally sentenced within the allowable range of

punishment. He has not been penalized for filing an appeal. The time he served in

prison will be credited when his community supervision is revoked and he is ordered

to serve a prison sentence. In fact, one must wonder whether Defendant will, should

his request for credit toward the condition of community supervision be granted now,

argue upon revocation that the time he previously served in prison should also count

toward his sentence. Just as Defendant will not be entitled to time toward his

sentence for the time he will serve as a condition of community supervision, he is not

now entitled to the reverse. This Court has not abused its discretion in declining to

grant Defendant time credit toward his condition of community supervision.

On September 7, 2007, the trial court signed an order denying appellant’s time-credit motion.

On Tuesday, September 18, 2007, appellant filed a notice of appeal from this order (the clerk’s filestamp indicates that this notice of appeal was filed on September 18, 2007, at 2:45 p.m., while the

certificate of service on the notice of appeal indicates that it was sent to opposing counsel on
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Appellant’s Tuesday, September 18, 2007 notice of appeal does not purport to appeal from

the trial court’s August 16, 2007 judgment placing appellant on community supervision “subject to

the condition[]of supervision” that appellant serve 180 days as a condition of his community

supervision with no time credits. See Collins v. State, 240 S.W.3d 925, 928 (Tex.Cr.App. 2007)

(“credit for time served” is an element of the judgment). We further note that such a notice of

appeal, filed more than 30 days after appellant’s sentence was imposed on August 16, 2007, would

not have been timely. See TEX. R. APP. PROC. 4.1(a); 26.2(a)(1).

7

The court of appeals remanded the case “to the trial court with the instructions to apply

Abbott’s prison time served as a credit toward the 180-day confinement as a condition of community

supervision and, because that credit greatly exceeds 180 days, to immediately release Abbott from

jail.” See Abbott, 245 S.W.3d at 23.

September 17, 2007).

6

The court of appeals, with one justice dissenting, decided that it had jurisdiction to consider

the merits of appellant’s appeal and that the trial court should have granted appellant credit for the

time previously served. See Abbott, 245 S.W.3d at 20-23. We granted review. The grounds upon 7

which we granted review present the following issues:

1. Did the Tenth Court of Appeals have jurisdiction to consider an appeal from the

order denying time credit?

2. Did the Tenth Court of Appeals err in determining that the trial court was without

discretion to deny credit for the time served on the original sentence toward the days

ordered as a condition of community supervision after retrial?

The court of appeals decided that it had jurisdiction to decide the merits of appellant’s appeal

from the trial court’s post-judgment order denying his time-credit motion, because there was no

“statute or rule precluding” the appeal. See Abbott, 245 S.W.3d at 20. This, however, is not the

standard for determining jurisdiction. The standard for determining jurisdiction is not whether the

appeal is precluded by law, but whether the appeal is authorized by law. See TEX. CONST. art. V,

§ 6(a), (providing that courts of appeals “shall have appellate jurisdiction co-extensive with the
Abbott--5

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In Sellers v. State, this Court noted the long-established rule that a defendant’s general right

to appeal under Article 44.02 “has always been limited to appeal” from a “final judgment.” See

Sellers v. State, 790 S.W.2d 316, 321 n.4 (Tex.Cr.App. 1990) (internal quotes omitted).

9

We note that the court of appeals relied on the published decision in Watson in support of

its decision that it had jurisdiction to decide the merits of appellant’s appeal from the trial court’s

post-judgment order denying his time-credit motion. See Abbott, 245 S.W.3d at 20. Unlike this

case, however, Watson involved an appeal from the trial court’s judgment reflecting “no credit for

time served pending the appeal.” See Watson, 942 S.W.2d at 724; see also Sellers, 790 S.W.2d at

321 n.4 (defendant’s general right to appeal under Article 44.02 has always been limited to appeal

limits of their respective districts, which shall extend to all cases of which the District Courts or

County Courts have original or appellate jurisdiction, under such restrictions and regulations as may

be prescribed by law” and “[s]aid courts shall have such other jurisdiction, original and appellate,

as may be prescribed by law”); Article 44.02, TEX. CODE CRIM. PROC., (“[a] defendant in any

criminal action has the right of appeal under the rules hereinafter prescribed”); TEX. R. APP. PROC.

25.2(a)(2) (a defendant “has the right of appeal under Code of Criminal Procedure article 44.02 and

these rules” in every case in which the trial court “enters a judgment of guilt or other appealable

order”); McIntosh v. State, 110 S.W.3d 51, 52 (Tex.App.–Waco 2002, no pet.) (a defendant has right

to appeal from a final judgment of conviction or when “expressly granted by law”) (internal quotes

omitted); Abbott, 245 S.W.3d at 23 (Gray, J., dissenting) (courts of appeals have no appellate

jurisdiction in criminal matters “absent a specific authorization by law”).

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In this case, we have not found any rule or any statutory or constitutional provision that

would authorize appellant’s appeal from the trial court’s post-judgment order denying his time-credit

motion. See Staley v. State, 233 S.W.3d 337, 338 (Tex.Cr.App. 2007) (dismissing the defendant’s

appeal because it was not authorized by law). The court of appeals, therefore, lacked jurisdiction

to decide the merits of appellant’s appeal. See id.; Abbott, 245 S.W.3d at 23 (Gray. J., dissenting).

9
Abbott--6

from a “final judgment”). In addition, the issue of the court of appeals’ jurisdiction was neither

raised nor addressed in Watson. The court of appeals also relied on a published decision in Jackson

v. State, 990 S.W.2d 879, 882 (Tex.App.–Beaumont 1999, no pet.). See Abbott, 245 S.W.3d at 21.

Jackson, however, also involved an appeal from the trial court’s judgment with the issue of the court

of appeals’ jurisdiction not being raised or addressed.

The judgment of the court of appeals is reversed, and the case is remanded there for further

proceedings consistent with this opinion.

Hervey, J.

Delivered: September 10, 2008

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