MEMORANDUM OPINION
No. 04-11-00154-CR
Mary ROBERTS,
Appellant
v.
The STATE of Texas,
Appellee
From the 226th Judicial District Court, Bexar County, Texas
Trial Court No. 2006CR6404A
Honorable Sid L. Harle, Judge Presiding
PER CURIAM
Sitting: Karen Angelini, Justice
Sandee Bryan Marion, Justice
Phylis J. Speedlin, Justice
Delivered and Filed: May 25, 2011
DISMISSED FOR LACK OF JURISDICTION
On February 21, 2008, Appellant Mary Roberts (“Roberts”) was convicted of five counts
of theft by coercion or deception and was sentenced to ten years’ imprisonment, to run
concurrently on all counts. The judgments for each count reflect that her sentence was then
suspended and that she was placed on community supervision. Additionally, the judgments
reflect that no restitution was ordered. Also on February 21, 2008, the trial court signed an order
imposing terms and conditions of her community supervision. Roberts appealed and requested
04-11-00154-CR
that these terms and conditions be held in abeyance pending her appeal, a request that the trial
court granted because Roberts filed an appellate bond. On March 17, 2010, this Court affirmed
the judgments of the trial court. See Roberts v. State, 319 S.W.3d 37 (Tex. App.—San Antonio
2010, pet. ref’d).
On February 11, 2011, the trial court signed an order modifying the terms and conditions
of Roberts’s community supervision. As part of the new terms and conditions, Roberts was
ordered jointly and severally responsible with the defendant in Trial Court Cause Number
2006CR6404B, Ted Roberts, to make a donation of $70,000.00 to a children’s charity. Roberts
then filed a notice of appeal, seeking to appeal this order by the trial court requiring her to donate
to a children’s charity. However, we have no jurisdiction over this appeal.
In Basaldua v. State, 558 S.W.2d 2, 5 (Tex. Crim. App. 1977), the Texas Court of
Criminal Appeals held there was no constitutional or statutory authority permitting a direct
appeal from an order modifying or refusing to modify probationary conditions. A defendant may
appeal the judgment at the time she is first placed on community supervision. TEX. CODE CRIM.
PROC. ANN. art. 42.12, § 23(b). A defendant may also appeal her revocation of community
supervision when she is notified of the decision to revoke and “is called on” to serve a sentence
in jail or in the institutional division of the Texas Department of Criminal Justice. Id. However,
modification of community supervision is not appealable at the time of modification. Basaldua,
558 S.W.2d at 5. Here, Roberts’s community supervision has not been revoked. And, she cannot
appeal from a trial court order modifying the terms and conditions of her community
supervision. See id.; Ruiz v. State, No. 10-00576-CR, 2010 WL 3511534, at *1 (Tex. App.—San
Antonio 2010, no pet.).
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Roberts argues that we do have appellate jurisdiction pursuant to the Texas Court of
Criminal Appeals’s holding in Bailey v. State, 160 S.W.3d 11 (Tex. Crim. App. 2004). However,
Bailey is distinguishable from the present case. In Bailey, 160 S.W.3d at 12, the appellant pled
guilty to an offense on February 21, 2001; that same day, the trial court assessed punishment at
five years; suspended the appellant’s sentence; placed the appellant on community supervision
for ten years; and imposed general conditions of community supervision. However, because the
trial court wished to consider the State’s request for restitution, it reset the case for a hearing on
March 12, 2001. Id. At that March 12th restitution hearing, the trial court ordered that the
appellant was required to make restitution payments to the victim as a condition of community
supervision. Id. On April 4, 2001, the appellant filed a notice of appeal. Id. Noting that the notice
of appeal had been filed more than thirty days after the February 21, 2001, hearing imposing the
appellant’s sentence, the Fourteenth Court of Appeals dismissed the appeal as being untimely
filed. Id. at 12-13. The court of criminal appeals reversed, explaining the appellant’s full
sentence had not been imposed until the March 12, 2001, restitution hearing. Id. at 14. The court
of criminal appeals distinguished the case from its previous holding in Basaldua, noting that
because the appellant’s sentence was not complete until the restitution hearing, the order being
appealed from was not an order modifying the terms and conditions of community supervision.
Id. at 14.
The court of criminal appeals then distinguished a case from this court, Dodson v. State,
988 S.W.2d 833 (Tex. App.—San Antonio 1999, no pet.), in which this court held that it did not
have jurisdiction to hear an appeal from the denial of a motion for shock probation. According to
the court of criminal appeals, “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
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sentencing was not complete until the restitution hearing.” Bailey, 160 S.W.3d at 14 (emphasis in
original). Here, however, there was an existing order dated February 21, 2008, that set the terms
and conditions of Roberts’s community supervision. It was that order that Roberts requested the
trial court to abate pending her appeal. Thus, the February 11, 2011, order signed by the trial
court is a modification to an existing order, and under Basaldua, we have no jurisdiction over an
appeal from such an order. 1
Roberts also argues that we have jurisdiction over this appeal because the trial court, by
requiring her to pay restitution in the order modifying the terms and conditions of her community
supervision, violated her constitutional rights. We disagree. Pursuant to Basaldua, 558 S.W.2d at
5, we have no jurisdiction to hear a direct appeal from an order modifying the terms and
conditions of her community supervision. The procedural vehicle for such a claim is an
application for writ of habeas corpus. See TEX. CODE CRIM. PROC. ANN. art. 11.072, § 2(b)(2)
(allowing applicant to challenge the legal validity of the conditions of community supervision);
see also id. § 3(c) (“An applicant may challenge a condition of community supervision under this
article only on constitutional grounds.”).
For the reasons stated above, we dismiss this appeal for lack of jurisdiction.
PER CURIAM
Do not publish
1
We note that under Roberts’s argument, her previous appeal, see Roberts v. State, 319 S.W.3d 37 (Tex.
App.—San Antonio 2010, pet. ref’d), would be a nullity, because her sentence was not complete until the trial court
ordered restitution as a part of the terms and conditions of community supervision in 2011. In Bailey, the court of
criminal appeals commented on the absurdity of such an argument when distinguishing the case, Jones v. State, 680
S.W.2d 580 (Tex. App.—Beaumont 1984, no pet.), from the facts presented in Bailey: “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.” Bailey, 160 S.W.3d at 15.
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