Gerrit Mitchell Albers v. State

NUMBER 13-15-00422-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
____________________________________________________________
GERRIT MITCHELL ALBERS, Appellant,
v.
THE STATE OF TEXAS, Appellee.
____________________________________________________________
On appeal from the 36th District Court
of Aransas County, Texas.
____________________________________________________________
MEMORANDUM OPINION
Before Justices Garza, Benavides, and Longoria
Memorandum Opinion Per Curiam
Appellant, Gerrit Mitchell Albers, attempts to appeal from an order modifying the
terms of his community supervision. We dismiss the appeal.
On March 13, 2014, pursuant to a plea agreement, appellant pled guilty or nolo
contendere to the offense of possession of heroin in an amount of less than one gram
(Count 1), and tampering with physical evidence (Count 2). See TEX. HEALTH & SAFETY
CODE ANN. §481.115(b) (West 2010); TEX. PENAL CODE ANN. §37.09. Appellant was
given a suspended sentence of three years deferred supervision for Count 1 and a
suspended sentence of five years deferred supervision for Count 2.
On June 18, 2015, the State filed a motion to adjudicate guilt, alleging that Albers
had violated the terms of his community supervision. A hearing on the motion was held
on July 23, 2015. The trial court found that appellant violated the terms and conditions
of his community supervision, but that Albers’ community supervision should not be
revoked. The trial court ordered the term of community supervision to be extended for a
period of two years from the date of expiration of the original term for Counts 1 and 2.
Appellant filed a notice of appeal on September 14, 2015.
The right to appeal is conferred by the legislature, and a party may appeal only
that which the legislature has authorized. Marin v. State, 851 S.W.2d 275, 278 (Tex.
Crim. App. 1993). A defendant has a right to appeal when his community supervision is
revoked and he is adjudicated guilty and sentenced. See TEX. CODE CRIM. PROC. art.
42.12, § 23(b). To the contrary, there is no statutory basis for an appeal of an order
modifying a term or condition of probation. See Christopher v. State, 7 S.W.3d 224, 225
(Tex. App.—Houston [1st Dist.] 1999, pet. ref’d). Case law has long held that an order
modifying or refusing to modify probation is not subject to appeal. See Basaldua v.
State, 558 S.W.2d 2, 5 (Tex. Crim. App. 1977); Perez v. State, 938 S.W.2d 761, 762-63
(Tex. App.—Austin 1997, pet. ref’d); Eaden v. State 901 S.W.2d 535, 536 (Tex. App.—El
Paso 1995, no pet.).
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In this case, the record does not contain any order revoking Albers’ community
supervision, adjudicating his guilt, or assessing a jail or prison sentence. The trial court’s
orders of July 23, 2015, modified the terms of community service by extending the period
of community service an additional two years.
The Court, having examined and fully considered the documents on file, is of the
opinion that the appeal should be dismissed for want of jurisdiction. Accordingly, the
appeal is hereby DISMISSED FOR WANT OF JURISDICTION. See TEX. R. APP. P.
42.3(a).
PER CURIAM
Do not publish.
See TEX. R. APP. P. 47.2(b).
Delivered and filed the
29th day of October, 2015.
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