In re J.A.D. , 2000 Tex. App. LEXIS 6713 ( 2000 )

REX D. DAVIS, Chief Justice,

dissenting.

The majority concludes that the allegations of the original motion to modify cannot serve as a basis to affirm the judgment because the State failed to serve J.A.D. with a copy of the original motion. Because this conclusion does not address the question of whether J.A.D. was harmed by the court’s error in acting on the untimely-filed second amended motion, I respectfully dissent.

Whenever we find error in the proceedings below, we must conduct a harm analysis, except when the error “defies analysis by harmless error standards or the data is insufficient to conduct a meaningful harmless error analysis.” In re D.I.B., 988 S.W.2d 753, 759 (Tex.1999) (quoting Cain v. State, 947 S.W.2d 262, 264 (Tex.Crim.App.1997)). According to Rule of Appellate Procedure 44.1(a)(1), we cannot reverse the judgment unless we conclude that the error “probably caused the rendition of an improper judgment.” Tex.R.App.P. 44.1(a)(1); see also In re C.P., 998 S.W.2d 703, 712 (Tex.App.—Waco 1999, no pet.).

The original motion to modify alleges in part that J.A.D. violated the conditions of his probation by being expelled from school on November 6, 1998. The court found this allegation to be true. J.A.D. does not challenge the sufficiency of the evidence to support this finding. Accordingly, I would conclude that the court’s error in proceeding on the untimely-filed motion did not result in “rendition of an improper judgment.” See Guillot v. State, 543 S.W.2d 650, 653 (Tex.Crim.App.1976); Chreene v. State, 691 S.W.2d 748, 750 (Tex.App.—Texarkana 1985, pet. ref'd). Thus, I would affirm the judgment.