Jerome Evans v. The State of Texas--Appeal from 210th District Court of El Paso County

COURT OF APPEALS

EIGHTH DISTRICT OF TEXAS

EL PASO, TEXAS

Appellant,

v.

THE STATE OF TEXAS,

Appellee.

No. 08-03-00185-CR

Appeal from the

210th District Court

of El Paso County, Texas

(TC# 74637)

This is an attempted appeal from an order modifying Appellant's terms and conditions of community supervision. Appellant was convicted for the offense of possession of cocaine on August 18, 1994 and was placed on community supervision for ten (10) years. On February 13, 2003, the trial judge signed an order dismissing the State's motion to revoke Appellant's probation and Appellant's community supervision was modified to require him to attend a treatment program. On March 11, 2003, Appellant filed a notice of appeal appealing the modification of probation. On April 22, 2003, this Court notified Appellant that the Court lacked jurisdiction regarding the appeal and gave notice that it was the Court's intent to dismiss the appeal for want of jurisdiction unless any party within ten days from the date of the notice could show grounds for continuing the appeal. No response was received. The issue before us is whether the modification of probation is an appealable order. We conclude that it is not and dismiss the attempted appeal for want of jurisdiction.

Ordinarily, an order modifying probation is not subject to appeal. See Basaldua v. State, 558 S.W.2d 2, 5 (Tex. Crim. App. 1977). In Basaldua, the court noted that the statute governing probation allows appeal only from a court's revocation of probation. See id. To complain of an error in the modification of probation, a defendant must file a writ of habeas corpus. See id. Case law has allowed complaints about a modification order on appeal only when violation of the modified order forms the basis of a subsequent revocation. See Elizondo v. State, 966 S.W.2d 671, 672 (Tex. App.--San Antonio 1998, no pet.). Because this is an appeal from a modification of the conditions of probation, and not from a revocation of probation, we find that the order is not appealable and we have no jurisdiction over the appeal. Accordingly, we dismiss the appeal.

May 22, 2003

__________________________________________ RICHARD BARAJAS, Chief Justice

Before Panel No. 4

Barajas, C.J., Larsen, McClure, JJ.

(Do Not Publish)