PD-0948-17 11/01/2017
1. “Where, regardless of whether the shock-probation order was ‘original’ or ‘amended,’ because it is a type of order identified as appealable under the plain language of article 44.01, and because the State’s notice of appeal was filed within 20 days from the amended order’s entry, the Eighth Court, in holding that the State’s notice of appeal was untimely and dismissing the State’s appeal for lack of jurisdiction, failed to give effect to the plain language of article 44.01 and thus erred.”
2. “Where, by entering an amended order, the trial court indicated its intent to supercede its original shock-probation order, and where the trial court’s amended order contained additional fact findings that were a statutory prerequisite to the proper granting of shock probation, the Eighth Court erred in holding that it was the original (not the amended) order that constituted an ‘appealable’ order. The State’s notice of appeal from the amended order was therefore timely.”
The State dismissed its capital murder and murder indictments in exchange for Hanson’s plea of guilty to injury to a child, an 8-year prison sentence, and his waiver of the right to seek shock probation. The trial court followed the plea agreement and assessed the 8-year prison term. Thereafter, Hanson asserted that he had been diagnosed with a rare and serious condition requiring immediate medical attention. After initially releasing Hanson without bond, the judge then granted Hanson shock probation on the court’s own motion. Ten days later, the trial court entered an amended probation order. The State filed notice of appeal from the amended order. The notice was filed within 20 days of the trial court’s amended order but not the original order placing Hanson on community supervision. The court of appeals reasoned that the original order controlled the appellate timetable, not the amended one, and dismissed the State’s appeal as untimely.
The State argues that Code of Criminal Procedure article 44.01 permits the State to appeal an order modifying a judgment as long as it files notice of appeal within 20 days after the order “to be appealed” is entered by the trial court. The court of appeals has read in an additional requirement that the order to be appealed must be a first-in-time order. The State also contends that it was erroneous to require the State to appeal from the original order because (based on basic procedural principles developed in civil law) once amended, that order ceased to have legal effect and was no longer susceptible to appeal. The State asserts that since the amended order undertook for the first time to meet certain statutory requirements for a grant of shock probation, entry of this order should have rest the appellate timetable.
