John A. Luna v. The State of Texas--Appeal from 144th Judicial District Court of Bexar County

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No. 04-98-00774-CR
John LUNA,
Appellant
v.
The STATE of Texas,
Appellee
From the 144th Judicial District Court, Bexar County, Texas
Trial Court No. 97-CR-1588
Honorable Susan D. Reed, Judge Presiding

PER CURIAM

Sitting: Phil Hardberger, Chief Justice

Tom Rickhoff, Justice

Alma L. L pez, Justice

Delivered and Filed: October 30, 1998

DISMISSED FOR LACK OF JURISDICTION

Appellant, John A. Luna ("Luna"), was sentenced to two years incarceration for the offense of possession of cocaine under one gram. The sentence was suspended, and Luna was placed on community supervision for three years. The State subsequently filed a motion to revoke Luna's probation; however, instead of revoking Luna's probation, the trial court entered an order modifying the terms of Luna's probation. Luna seeks to appeal that order.

This court does not have jurisdiction to consider an appeal from an order altering or modifying probation conditions. See Basaldua v. State, 558 S.W.2d 2, 5 (Tex. Crim. App. 1977); see also Marin v. State, 851 S.W.2d 275, 277-78 (Tex. Crim. App. 1993); Quaglia v. State, 906 S.W.2d 112, 113 (Tex. App.--San Antonio 1995, no pet.); Eaden v. State, 901 S.W.2d 535, 537 (Tex. App.--El Paso 1995, no pet.). On October 14, 1998, we ordered Luna to show cause why this appeal should not be dismissed for lack of jurisdiction.

Luna first responded to our order by noting that when an appeal of a modification contains facts which raise an unconstitutional infringement of an appellant's rights, the Court of Criminal Appeals has considered such an appeal as a habeas corpus proceeding. See Basaldua, 558 S.W.2d at 5. Although such consideration can properly be given by the Court of Criminal Appeals, this court does not have original habeas corpus jurisdiction in criminal cases. See Ex parte Miller, 931 S.W.2d 724, 725 (Tex. App.--Austin 1996, no pet.). Luna also responded by citing cases in which courts of appeals have considered issues relating to the modification of probation conditions in appeals from the revocation of probation. In those cases, the courts of appeals had jurisdiction over the appeals because the appeals were from the revocation of probation, not the modification of probation conditions.

Because this court does not have jurisdiction to consider an appeal from an order modifying the terms of Luna's probation, this appeal is dismissed.

PER CURIAM

DO NOT PUBLISH

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