IN THE COURT OF CRIMINAL APPEALS
OF TEXAS



NO. 2189-01

 

HAROLD WAYNE BAILEY, Appellant

v.


THE STATE OF TEXAS




ON APPELLANT'S PETITION FOR DISCRETIONARY REVIEW
FROM THE FOURTEENTH COURT OF APPEALS
HARRIS COUNTY

Meyers, J., delivered the opinion of the Court, in which Price, Johnson, Holcomb, and Cochran, J.J., joined. Cochran, J., filed a concurring opinion. Keller, P.J., filed a dissenting opinion. Womack, J., filed a dissenting opinion in which Keller, P.J., and Hervey, J., joined. Keasler, J., filed a dissenting opinion.



O P I N I O N



Appellant Harold Wayne Bailey pleaded guilty to the offense of failure to stop and render assistance. Tex. Transp. Code 550.021(c). The trial court imposed a probated sentence, and later added an order for payment of restitution to the conditions of community supervision. Appellant filed a notice of appeal from the restitution order, which was dismissed as untimely by the court of appeals. We granted review to clarify the application of Texas Rule of Appellate Procedure 26.2, governing time to perfect an appeal. We hold that the notice of appeal in this case was timely, and therefore we will reverse the court of appeals.

On February 12, 2001, appellant pleaded guilty to the offense of failure to stop and render assistance. At that time, the trial court assessed punishment at 5 years, probated for 10 years, and imposed general conditions of community supervision. The trial court then reset the case for a hearing on March 12, 2001, to consider the State's request for restitution as a further condition of probation. On the plea form, defendant explicitly reserved the right to appeal any restitution ordered.

At the March 12th restitution hearing, the State presented testimony from the victim's mother, and evidence in the form of medical bills. Appellant unsuccessfully argued that restitution did not flow from the offense of failure to stop and render aid. The trial court ordered that the conditions of probation be amended to require appellant to make restitution payments in the amount of $49,148.43 to the victim. The order was reduced to a writing entitled "Conditions of Community Supervision; 1st Amended," which was signed and entered on the same date, March 12, 2001.

On April 4, 2001, appellant filed a notice of appeal. The notice stated:

The Defendant desires to appeal the JUDGMENT and SENTENCE in the above cause, in addition to the Court's appealable ORDERS concerning restitution and probationary conditions. The trial court has granted the Defendant permission to appeal.



In an unpublished memorandum opinion, the 14th Court of Appeals dismissed the appeal as untimely. Bailey v. State, No. 14-01-00466-CR (Tex. App. - Houston [14th Dist.] Aug. 23, 2001) (not designated for publication), 2001 Tex. App. LEXIS 5738. The court of appeals noted that because no motion for a new trial had been filed, appellant had 30 days after the sentence was imposed to file a notice of appeal. Id., citing Tex. R. App. P. 26.2(a)(1).(1) Because the notice of appeal was filed more than 30 days after the original sentencing hearing (which was on February 12, 2001), the court held that the appeal was not timely perfected, and that the court of appeals therefore had no jurisdiction to address the merits of the appeal. Bailey, 2001 Tex. App. LEXIS 5738 (citing Slaton v. State, 981 S.W.2d 208, 210 (Tex. Crim. App. 1998)).

Appellant filed a motion for rehearing and a motion to reinstate the appeal, both of which were overruled. This Court granted discretionary review. Appellant argues that his notice of appeal, filed within 30 days of the March 12 restitution order, was timely. He notes that the court of appeals' holding would have the undesirable result of barring any appeal from an order issued more than 30 days after the original judgment. The State argues that the trial court's order requiring appellant to pay restitution as a condition of probation is not, by itself, an appealable order. Therefore, the State argues, because appellant's notice of appeal was filed more than 30 days after the original judgment and sentence, the court of appeals properly dismissed appellant's appeal.

Our precedent has established that conditions of community supervision imposed at the time of the original sentencing may not be appealed at a revocation hearing, unless they were objected to when originally imposed. Hull v. State, 67 S.W.3d 215, 217 (Tex. Crim. App. 2002). Furthermore, the court of appeals lacks jurisdiction to hear a challenge to a judgment of conviction brought more than 30 days after the imposition of community supervision, unless a motion for a new trial was timely filed. Manuel v. State, 994 S.W.2d 658, 660 (Tex. Crim. App. 1999) citing Tex. Code Crim. Proc. Ann. art. 42.12, 23(b)(Vernon Supp. 1998)(defendant's right to appeal conviction and punishment accrues when defendant is placed on community supervision). Those holdings are not determinative, however, of the issue in this case. At issue in this case is not whether the restitution order itself is an appealable order. Instead, the issue is at what time appellant's full sentence was actually assessed and imposed. Was the sentencing complete: 1) at the initial sentencing hearing on February 12, 2001, or 2) at the time the trial court ordered restitution, on March 12, 2001? Due to the unique facts of this case, we find that the sentence was actually imposed at the restitution hearing, and we reverse the court of appeals.

Appellant cites two cases for the proposition that restitution orders are appealable at the time they are imposed. Cartwright v. State, 605 S.W.2d 287 (Tex. Crim. App. 1980); Lemos v. State, 27 S.W.3d 42 (Tex. App. - San Antonio 2000, no pet.). Although we find for appellant, we disagree that either Lemos or Cartwright are determinative in this case. Though both of those cases involved appeals from restitution orders imposed as conditions of probation, the restitution orders in those cases were entered at the time of the initial sentencing, not weeks later (as in appellant's case). See Cartwright, 605 S.W.2d 287; Lemos, 27 S.W.3d 42.

The State cites several cases for the proposition that an order altering or modifying probationary conditions is not appealable. Basaldua v. State, 558 S.W.2d 2, 5 (Tex. Crim. App. 1977); Dodson v. State, 988 S.W.2d 833 (Tex. App. - San Antonio 1999, no pet.); Jones v. State, 680 S.W.2d 580 (Tex. App. - Beaumont 1984, no pet.). Basaldua involved a challenge to the trial court's refusal to modify a probation order that was entered at the time sentence was suspended in open court. No appeal was made at the time the conditions of probation were imposed, and the defendant filed his motion to modify the conditions 4 months later. The motion was denied after a hearing, and the defendant filed a notice of appeal to this Court a week after the denial of the motion. Basaldua, 558 S.W.2d at 2-4. We found:

. . . neither constitutional nor statutory authority which would confer jurisdiction on this court to hear an appeal from an order. . . altering or modifying probationary conditions or an order, as in the instant case, refusing to alter or modify such conditions.



Id. at 6 (emphasis added). The Court held that it did not have jurisdiction to hear a direct appeal from a specific trial court ruling: an order denying a motion to modify existing conditions of probation which were entered at the time the sentence was originally suspended.

The operative word here is "modify." This Court was careful to point out that the matter was not an appeal from an original order granting or revoking probation. Basaldua, 558 S.W.2d at 6-7. Such appeals are clearly authorized by Article 42.12 23(b) of the Texas Code of Criminal Procedure, and the timing for notice of appeal is governed by Rule 26.2 of the Texas Rules of Appellate Procedure. A motion to modify an existing condition of probation, on the other hand, could conceivably be brought at any time during the term of the probation. The denial of such a motion is not final, because under Article 42.12 11(a), "the judge of the court having jurisdiction of the case shall determine the conditions of community supervision and may, at any time, during the period of community supervision alter or modify the conditions." Tex. Code Crim. Proc. Ann. art. 42.12 11(a) (Vernon 2004). Appellant's case, however, was not a modification; the sentence was not complete until March 12, 2001, the date of the restitution hearing. Thus, Basaldua is not controlling.

In Dodson, also cited by the State, the court of appeals held that it did not have jurisdiction to hear an appeal from the denial of a motion for shock probation.(2) Dodson, 988 S.W.2d 833. The motion requesting shock probation in that case was timely filed, and a hearing was scheduled on the motion. Due to a series of scheduling problems and mis-communications, the hearing was scheduled 182 days after the original sentencing date. Since a trial court loses jurisdiction over the case 180 days after sentencing under Article 42.12 6(a),(3) the trial judge found that his authority to conduct the hearing had ceased, and he denied the motion. Id. at 834. The court of appeals held that it also lacked jurisdiction, under Texas Rules of Appellate Procedure 26.2(a)(1), because more than 30 days had passed since the imposition of the sentence. Id. Dodson is not decisive for the same reasons that Basaldua is not decisive: In appellant's case, no modification was being made to an existing order; rather, the sentencing was not complete until the restitution hearing.

In Jones, the other case cited by the State, the appellant was convicted of a theft offense. Jones, 680 S.W.2d 580. On May 10, 1982, the trial judge assessed the defendant's punishment at 10 years probation, and included restitution, in an amount to be set after the defendant filed a financial statement. The defendant filed for bankruptcy on June 29, 1982. On August 9, 1982, the District Judge signed a written order placing the defendant on probation and ordering the defendant to "[p]ay restitution in such sums and at such time as ordered by the Court." Id. at 580. But at that time, the bankruptcy court had not come back with a decision. Finally, on December 22, 1982, the bankruptcy court discharged the defendant's debts, which included amounts owed to the victims of the case. The hearing by the district court amending the probation judgment to include restitution was not held until July 29, 1983, many months after the original order placing the defendant on probation. The defendant then filed a "Motion to Set Aside Amended Conditions of Probation" less than 30 days after the restitution hearing, alleging that the order violated the bankruptcy court's discharge order. Id. The trial court denied the motion, and the defendant appealed the denial to the court of appeals. Id. The court of appeals concluded that it was without jurisdiction to consider the appeal, again based on the Basaldua holding. Id. at 581, (citing Basaldua, 558 S.W.2d at 5). Jones gives little guidance to appellant's situation, however, because the case concerned an amendment to a probation order, just as in Basaldua and Dodson. It can hardly be argued that the restitution hearing in Jones, held almost a year after the written community supervision order, was a continuation of the original sentencing. The community supervision order called for a yearly hearing "to consider the defendant's ability to make restitution." Id. at 581. And, the bankruptcy court proceedings complicated the matter because the proceeding was pending at the time of the written order by the district court. Due to these distinguishing factors, appellant's situation cannot be compared to the defendant's situation in Jones.

Basaldua, Dodson, and Jones stand for the proposition that no appeal lies from an order denying a motion to alter or modify existing conditions of community supervision. Here, unlike in the cases cited by the State, no restitution was ordered at the original sentencing, and the order imposing restitution was not an "alteration" or "modification" of the terms of community supervision. Article 42.037(e) of the Texas Code of Criminal Procedure states, in relevant part, that "[t]he imposition of the order [of restitution] may not unduly complicate or prolong the sentencing process." Tex. Code Crim. Proc. Ann. art. 42.037(e) (Vernon 2002). This statement, essentially including restitution in the "sentencing process," implies that restitution is imposed as part of the original sentence, and that the sentence is not complete until restitution is imposed. Article 42.02(25) of the Texas Code of Criminal Procedure also prescribes that "the judgment" should reflect ". . . a statement of the amount of restitution ordered . . . ." Tex. Code Crim. Proc. Ann. art. 42.01(25) (Vernon 2002). In appellant's case, not only did he not know the amount of restitution that would be imposed- he did not know whether restitution would be imposed at all. There was nothing to appeal from until the date of the restitution order on March 12, 2001. Additionally, when the court reset the case for a hearing to decide the State's motion for restitution, appellant specifically reserved the right to appeal any restitution that might be imposed. Clearly, the parties regarded the judgment as incomplete until the amount of restitution was set at the later hearing.

The case Arguijo v. State, 738 S.W.2d 367 (Tex. App.- Corpus Christi 1987) supports our holding. In Arguijo, on October 3, 1986, the judge signed and entered judgment finding the defendant guilty and sentencing him to probation. On December 11, 1986, a hearing was held in which the defendant was given his probationary terms and conditions. The defendant filed a motion for new trial on that same day. In its decision, the court stated: "We conclude . . . that the judgment was incomplete on October 3 due to the court's failure to include probationary terms and conditions at that time. On December 11, when [defendant] was specifically informed of his duties, the judgment was then made whole, and [defendant's] sentence was imposed for purposes of perfecting appeal . . . ." 738 S.W.2d at 369.

Similarly, appellant was not ordered to make restitution until the March 12 hearing. Before that time, he could not have appealed a decision granting restitution because there was no restitution award to appeal. In the unique facts of this case, the parties considered the sentencing to be incomplete until the amount of restitution, if any, was set.(4) Because of these facts, the day the sentence was "suspended in open court," within the meaning of Rule 26.2(a)(1), was the day the last condition of probation was decided, and appellant's filing of his appeal was timely.

Accordingly, the judgment of the court of appeals is vacated, and the cause remanded for a hearing to decide the merits of appellant's challenge to the restitution order.



Meyers, J.

Delivered: March 24, 2004

Publish

 

1. The relevant portion of Rule 26.2, governing time to perfect appeal, reads as follows:

Criminal cases.

(a) By the Defendant. The notice of appeal must be filed:

(1) within 30 days after the day sentence is imposed or suspended in open court, or after the day the trial court enters an appealable order; or

(2) within 90 days after the day sentence is imposed or suspended in open court if the defendant timely files a motion for new trial.

2. After a trial court imposes a sentence of incarceration, and begins execution of the sentence (i.e., the defendant is actually incarcerated), the trial court may suspend further execution of the sentence and place the defendant on community supervision, or "shock probation," as it is commonly called. Tex. Code Crim. Proc. Ann. art. 42.12 6(a) (Vernon 2004).

3. Tex. Code Crim. Proc. Ann. art. 42.12 6(a): For the purposes of this section, the jurisdiction of a court in which a sentence requiring imprisonment in the institutional division of the Texas Department of Criminal Justice is imposed by the judge of the court shall continue for 180 days from the date the execution of the sentence actually begins.

4. In Judge Womack's dissent, he suggests that our holding today will allow each of "175,000 defendants" on probation "to appeal the modification of a condition of probation, thus avoiding the responsibility to obey the condition." But his assertion is based on a misconception that our opinion applies to modifications of conditions of probation. It does not. The very premise of this holding today is that the sentencing hearing was not yet complete and thus no modification occurred; in this case, the date restitution was awarded was the time sentencing was complete.