Johnathan James Foster v. State ( 2012 )

Opinion issued March 1, 2012.

In The

Court of Appeals

For The

First District of Texas

NO. 01-11-00678-CR

____________

JOHNATHAN JAMES FOSTER, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 337th District Court

Harris County, Texas

Trial Court Cause No. 1287645

MEMORANDUM OPINION

          Appellant, Jonathan James Foster, pleaded guilty to the felony offense of assault on a family member.  Pursuant to appellant’s plea agreement with the State, the trial court deferred adjudication of his guilt and, on December 7, 2010, placed him on community supervision for four years.  On May 23, 2011, the State moved to adjudicate appellant’s guilt.  On July 14, 2011, the trial court dismissed the State’s motion and modified the conditions of his community supervision.  On July 29, 2011, appellant filed a notice of appeal.  We dismiss the appeal.

To the degree that appellant seeks to appeal the trial court’s December 7, 2010 order deferring adjudication of his guilt and placing him on community supervision, his notice of appeal is untimely. See Tex. Code Crim. Proc. Ann. art. 42.12, § 5 (Vernon Supp. 2011); Dillehey v. State, 815 S.W.2d 623, 626 (Tex. Crim. App.1991) (allowing appeal from order deferring adjudication of guilt).  The record reflects that appellant was placed on community supervision on December 7, 2010 and any notice of appeal was due on or before January 6, 2011.  See Tex. R. App. P. 26.2(a).  Because appellant filed his notice of appeal on July 29, 2011, it was untimely and we have no jurisdiction to consider it.  See Olivo v. State, 918 S.W.2d 519, 522 (Tex. Crim. App. 1996); Slaton v. State, 981 S.W.2d 208, 210 (Tex. Crim. App. 1998).   

Moreover, the trial court’s certification of appellant’s right to appeal states that this is a plea bargain case and he has no right of appeal.  See Tex. R. App. P. 25.2(a)(2); Hargesheimer v. State, 182 S.W.3d 906, 913 (Tex. Crim. App. 2006) (holding that plea bargain is complete at time defendant enters plea of guilty in exchange for community supervision). Appellant did not appeal any pre-trial matters, and the trial court did not give appellant permission to appeal.  See Tex. R. App. P. 25.2(a)(2).  The record supports the trial court’s certification. See Dears v. State, 154 S.W.3d 610, 615 (Tex. Crim. App. 2005); Hargesheimer, 182 S.W.3d at 913 (stating that rule 25.2 restricts appeal when defendant appeals placement on community supervision). Because appellant has no right of appeal, we must dismiss the appeal.  See Chavez v. State, 183 S.W.3d 675, 680 (Tex. Crim. App. 2006).

Further, to the degree that appellant seeks to challenge the trial court’s July 14, 2011 order modifying the terms and conditions of his community supervision [1], such an order is not appealable.  See Davis v. State, 195 S.W.3d 708, 711 (Tex. Crim. App. 2006); Christopher v. State, 7 S.W.3d 224, 225 (Tex. App.—Houston [1st Dist.] 1999, pet. ref’d) (stating that no appeal lies from order modifying conditions of community supervision).

Accordingly, we dismiss the appeal for want of jurisdiction and dismiss all pending motions as moot.

PER CURIAM

Panel consists of Justices Jennings, Massengale, and Huddle.

Do not publish. Tex. R. App. P. 47.2(b).

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[1]               A trial court’s order to extend community supervision for an additional year and place a defendant in a substance abuse felony punishment program constitutes a modification of the conditions of community supervision. See Tex. Code Crim. Proc. Ann. art. 42.12, § 22(a)(2), (4) (West Supp. 2011).