In The
Court of Appeals
Seventh District of Texas at Amarillo
No. 07-16-00104-CR
ASHLEY NICOLE JIMENEZ, APPELLANT
V.
THE STATE OF TEXAS, APPELLEE
On Appeal from the 121st District Court
Terry County, Texas
Trial Court No. 6519, Honorable Kelly G. Moore, Presiding
August 9, 2016
MEMORANDUM OPINION
Before QUINN, C.J., and HANCOCK and PIRTLE, JJ.
Ashley Nicole Jimenez (appellant) appeals from an order modifying and
continuing her probation. She had previously been convicted of injury to a child and
sentenced to two years in a state jail facility. The trial court suspended that sentence
and placed her on five years of community supervision. Thereafter, the State moved to
revoke that supervision. Upon convening a hearing on the motion, the trial court found
that appellant had violated various conditions of her community supervision but opted
not to revoke her probation. Instead, it continued appellant’s community supervision
and modified the terms of it. Appellant timely appealed from the judgment manifesting
that decision. Through one issue, she argues that “the judgment in this Cause fatally
fails to meet the statutory requisites of a valid judgment as required by Art. 42.01 of the
Code of Criminal Procedure.”1 The State replied to that argument and, in its appellee’s
brief, moved to dismiss the appeal for want of jurisdiction. We dismiss.
Again, appellant does not question anything about the actual modification of the
conditions appended to her continued probation. Nor does she question the decision to
continue her probation. Instead, her complaint relates to the content of the judgment
entered when she was initially found guilty, sentenced and granted probation. Again,
she argues that not all the information required by art. 42.01, § 1 of the Code of Criminal
Procedure was included in the decree. That such a matter could have been reviewed
by an appeal from that aspect of her prosecution and conviction is beyond doubt. Wiley
v. State, 410 S.W.3d 313, 320 (Tex. Crim. App. 2013). Indeed, issues relating to a
conviction resulting in community supervision or probation must be raised when
community supervision is originally imposed. Manuel v. State, 994 S.W.2d 658, 661-62
(Tex. Crim. App. 1999); Whetstone v. State, 786 S.W.2d 361, 363 (Tex. Crim. App.
1990); Niavez v. State, No. 07-12-00184-CR, 2013 Tex. App. LEXIS 6259, at *4 (Tex.
App.—Amarillo May 20, 2013, no pet.) (mem. op., not designated for publication). And,
though an exception to that rule exists, it generally encompasses situations where the
judgment is void. Nix. v. State, 65 S.W.3d 664, 667-68 (Tex. Crim. App. 2001); Niavez
v. State, 2013 Tex. App. LEXIS 6259 at *4; accord, Gaston v. State, 63 S.W.3d 893,
1
Allegedly, the judgment failed to state the offense or offenses for which appellant was convicted,
even though the original judgment stated that she was convicted of “Injury To A Child” and the order
continuing her probation stated that she was convicted of “Injury To A Child.” See TEX. CODE CRIM. PRO.
ANN. art. 42.01, § 1(13) (West Supp. 2015) (stating that the judgment “shall reflect . . . [t]he offense or
offenses for which the defendant was convicted”).
2
897 (Tex. App.—Dallas 2001, no pet.) (stating that “[w]hile generally the original plea
cannot be attacked on an appeal of the revocation order, the court may review the
underlying judgment of conviction to see if it is ‘void.’”).
Yet, omitting from a judgment those things required by art. 42.01, § 1 does not
render the judgment void, but merely voidable. Ford v. State, No. 11-03-00355-CR,
2005 Tex. App. LEXIS 3034, at *2-3 (Tex. App.—Eastland April 21, 2005, no pet.);
Gaston v. State, 63 S.W.3d at 898; accord, Jones v. State, 795 S.W.2d 199, 202 (Tex.
Crim. App. 1990) (recognizing that the information “required to be set out in the
judgment is merely a record of events which have occurred in fact” and that the
intermediate appellate court erred in concluding that the omission of same rendered the
judgment void). For this reason, such complaints fall outside the exception recognized
in Nix and into the rule propounded by Whetstone and reiterated in Manuel. They
cannot be postponed until the community supervision previously granted is affected by
later decisions of the trial court. Ford v. State, supra; Gaston v. State, supra. In the
latter scenario, the reviewing court no longer has the jurisdiction to review them. Ford
v. State, supra; Gaston v. State, supra.
So, per the authority of Gaston, Ford, Manuel, or Nix, we have no jurisdiction
over the sole issue raised by appellant and dismiss the appeal for want of jurisdiction.
Brian Quinn
Chief Justice
Do not publish.
Pirtle, J., concurring.
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