Cooper, Roderick Keith v. The State of Texas--Appeal from 23rd District Court of Brazoria County

Dismissed and Opinion filed December 19, 2002.

In The

Fourteenth Court of Appeals

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NO. 14-02-00898-CR

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RODERICK KEITH COOPER, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 23rd District Court

Brazoria County, Texas

Trial Court Cause No. 30,909

M E M O R A N D U M O P I N I O N

Appellant was convicted of the offense of engaging in organized criminal activityCaggravated robbery, and on August 17, 1998, the trial court assessed punishment at confinement in the penitentiary for ten years, probated. The State moved to revoke appellant=s probation on October 8, 2001. On May 28, 2002, appellant filed a motion for a speedy trial. Before a hearing on the speedy trial motion, the State moved to dismiss the revocation proceeding because appellant=s capital murder trial was set for September 23, 2002, in Harris County. On June 25, 2002, the trial court signed an order dismissing the State=s motion to revoke probation. On July 1, 2002, appellant filed a motion to amend the order of dismissal to prohibit the State from refiling the motion to revoke on the same allegations. After a hearing, the trial court signed an order denying appellant=s motion on July 23, 2002. On August 22, 2002, appellant filed a notice of appeal.

On December 9, 2002, the State moved to dismiss the appeal, asserting that appellant=s claim is not ripe for adjudication until the State files a subsequent motion to revoke probation on the same grounds alleged in the initial revocation proceeding. See generally Burks v. State, 876 S.W.2d 877, 889 (Tex. Crim. App.1994) (finding claim of jeopardy from future prosecution not ripe for consideration in appeal challenging sufficiency of indictment); Rumph v. State, 687 S.W.2d 489, 495 (Tex. App.CHouston [14th Dist.] 1985, no pet.) (holding challenge alleging inability to pay fine imposed as probation condition not ripe for review until probation revoked for failure to pay). In addition, the State has no right to appeal an order granting a motion to quash a revocation of probation motion. State v. Cuellar, 815 S.W.2d 295, 297 (Tex. App.CAustin 1991, no pet.). We likewise find no authority permitting appellant to appeal the dismissal of a motion to revoke probation. Appellant has submitted a brief that does not address the issue of our jurisdiction over this appeal. We agree with the State=s contention that appellant must raise his complaints at such time as the State again moves to revoke his probation on the same grounds alleged in the motion in this case. The State=s motion is granted.

Moreover, even if the order dismissing the revocation were appealable, appellant=s notice of appeal was not filed within thirty days of the order dismissing the motion to revoke. See Tex. R. App. P. 26.2(a)(1) (notice of appeal must be filed within thirty days after the trial court enters an appealable order).

Accordingly, the appeal is ordered dismissed.

PER CURIAM

Judgment rendered and Opinion filed December 19, 2002.

Panel consists of Chief Justice Brister and Justices Hudson and Fowler.

Do Not Publish Tex. R. App. P. 47.3(b).