Najma Parker v. State ( 2015 )

Opinion issued September 10, 2015
In The
Court of Appeals
For The
First District of Texas
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NO. 01-15-00334-CR
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NAJMA PARKER, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 300th District Court
Brazoria County, Texas
Trial Court Case No. 73,269
MEMORANDUM OPINION
Appellant, Najma Parker, pleaded guilty to the state-jail-felony offense of
theft with two or more previous convictions without an agreed recommendation on
punishment. See TEX. PENAL CODE ANN. § 31.03(e)(4)(D) (West Supp. 2014).
After a presentence investigation, the trial court assessed appellant’s punishment at
two years’ confinement in state jail on March 20, 2015, with the sentence to begin
on that date. See id. at § 12.35(a). The trial court certified appellant’s right of
appeal because this was not a plea-bargained case. See TEX. R. APP. P.
25.2(a)(2)(B). On April 10, 2015, appellant timely filed a notice of appeal from
the judgment of conviction, challenging the sentence. See id. at 26.2(a)(1).
On August 14, 2015, appellee, the State of Texas, filed an unopposed motion
to dismiss the appeal for lack of jurisdiction. See TEX. R. APP. P. 10.3(a)(2). The
State contends that this Court lacks jurisdiction because the trial court granted
appellant’s July 21, 2015 motion for shock probation, and signed a new judgment
on July 29, 2015, suspending her two-year state jail sentence and placing her on
community supervision for a period of five years. We agree and dismiss the
appeal.
There is no constitutional right to appellate review of criminal convictions.
Phynes v. State, 828 S.W.2d 1, 2 (Tex. Crim. App. 1992); see also Perez v. State,
938 S.W.2d 761, 762 (Tex. App.—Austin 1997, pet. ref’d). The right to appeal in
criminal cases is conferred by the legislature, and a party may appeal only those
orders/judgments which the legislature has authorized. See TEX. CRIM. PROC.
CODE ANN. § art. 44.02 (West Supp. 2014); Marin v. State, 851 S.W.2d 275, 278
(Tex. Crim. App. 1993); see also Perez, 938 S.W.2d at 762 (citations omitted).
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There is no right of appeal from a trial court’s order granting shock
probation. See TEX. CODE CRIM. PROC. ANN. art. 42.12, § 6(a) (West Supp. 2014)
(shock probation statute in non-state jail felony cases); Pippin v. State, 271 S.W.3d
861, 863–64 (Tex. App.—Amarillo 2008, no pet.) (dismissing for want of
jurisdiction appeal of order granting shock probation in state jail felony case);
Perez, 938 S.W.2d at 762–63 (concluding that court of appeals lacked authority to
review direct appeal from order placing appellant on shock probation in felony
case); see also Basaldua v. State, 558 S.W.2d 2, 5 (Tex. Crim. App. 1977)
(dismissing for want of jurisdiction appeal of order denying modification of
conditions of shock probation in felony case). When a court grants community
supervision under article 42.12, section 6 (“shock probation”) of the Texas Code of
Criminal Procedure for non-state jail felony sentences, the court imposes the
sentence, the defendant actually serves a portion of the sentence, and the court, by
granting “shock probation,” suspends the further execution of the sentence. See
TEX. CODE CRIM. PROC. ANN. art. 42.12, § 6(a); Amado v. State, 983 S.W.2d 330,
331–32 (Tex. App.—Houston [1st Dist.] 1998, pet. ref’d); see, e.g., Harris v. State,
No. 01–04–01174–CR, 2006 WL 488677, at *2 (Tex. App.—Houston [1st Dist.]
Mar. 2, 2006, no pet.) (mem. op., not designated for publication) (defining “shock
probation” in non-state jail felony cases).
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Similarly, “[o]n conviction of a state jail felony punished under Section
12.35(a), Penal Code,” as here, “the judge may: (A) suspend the imposition of the
sentence and place the defendant on community supervision . . . .” TEX. CODE
CRIM. PROC. ANN. art. 42.12, § 15(a)(2)(A) (West Supp. 2014). “The court retains
jurisdiction over the defendant for the period during which the defendant is
confined in a state jail.” Id. at § 15(f)(2). “At any time after the 75th day after the
date the defendant is received into the custody of a state jail, the judge . . . on the
motion of the defendant may suspend further execution of the sentence and place
the defendant on community supervision under the conditions of this section.” Id.
“The minimum period of community supervision a judge may impose under this
section is two years,” while “[t]he maximum period of community supervision a
judge may impose under this section is five years . . . .” Id. at § 15(b).
Here, the trial court retained jurisdiction over appellant while she was in
state jail, and had the authority to grant her motion for shock probation on July 29,
2015, which was after the required seventy-five day period had elapsed following
her receipt into state jail custody on March 20, 2015. See TEX. CODE CRIM. PROC.
ANN. art. 42.12, § 15(f)(2). The trial court’s July 29, 2015 judgment suspending
appellant’s two-year state jail sentence and placing her on community supervision
for a period of five years was within the maximum range permitted. See id. at §
15(b). Thus, although this Court initially had jurisdiction over the appeal from the
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March 20, 2015 judgment imposing state jail confinement, that judgment was
rendered moot by the July 29, 2015 judgment granting shock probation, over
which we lack jurisdiction. See Basaldua, 558 S.W.2d at 5; Pippin, 271 S.W.3d at
863–64; see, e.g., Cruz v. State, Nos. 14–13–00745–CR, 14–13–00746–CR, 2013
WL 6926251, at *1 (Tex. App.—Houston [14th Dist.] Nov. 21, 2013, no pet.) (per
curiam) (mem. op., not designated for publication) (granting appellant’s motion to
dismiss after trial court’s grant of appellant’s motion for new trial on punishment
and imposition of community supervision rendered moot appeals of original prison
sentences).
CONCLUSION
Accordingly, we grant the State’s motion and dismiss the appeal for want of
jurisdiction. See TEX. R. APP. P. 43.2(f).
PER CURIAM
Panel consists of Justices Keyes, Massengale, and Lloyd.
Do not publish. TEX. R. APP. P. 47.2(b).
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