Date: 09-28-2020

Case Style:

Case Number: 02-20-00081-CR

Judge: Per Curiam

Court: Court of Appeals Second Appellate District of Texas at Fort Worth

Plaintiff's Attorney: Andrea Simmons

Defendant's Attorney:

Description: Denton, TX - Criminal Defense Attorney, Miscellaneous/Other Criminal including Misdemeanor or Felony

Ladavious Cobur Ramon Smith filed a notice of appeal attempting to challenge
the trial court’s denial of (1) his motion for shock probation and (2) his request for
findings of fact and conclusions of law.
Generally, an appellate court may consider appeals by criminal defendants only
where there has been a final judgment of conviction. Bridle v. State, 16 S.W.3d 906, 907
(Tex. App.—Fort Worth 2000, no pet.) (per curiam). We do not have jurisdiction to
review interlocutory orders such as the one in this case unless that jurisdiction has been
expressly granted to us by law. Ragston v. State, 424 S.W.3d 49, 52 (Tex. Crim. App.
2014) (quoting Apolinar v. State, 820 S.W.2d 792, 794 (Tex. Crim. App. 1991)). The
narrow exceptions to this rule do not apply here. See Bridle, 16 S.W.3d at 907 n.1. The
denial of a motion for shock probation is not an appealable order. Houlihan v. State, 579
S.W.2d 213, 216 (Tex. Crim. App. 1979); Monson v. State, No. 02-16-00447-CR, 2018
WL 2248567, at *1 (Tex. App.—Fort Worth May 17, 2018, no pet.) (mem. op., not
designated for publication). And no statute or rule makes an order denying a request
for findings of fact and conclusions of law independently appealable. Cf. Ex parte
Prescott, No. 02-20-00066-CR, 2020 WL 1949013, at *1 (Tex. App.—Fort Worth
Apr. 23, 2020, no pet.) (mem. op., not designated for publication) (holding that an order
adopting findings and conclusions was not independently appealable); State v. Davis,
Nos. 03-15-00616-CR, 03-15-00620-CR, 2015 WL 7424702, at *1 (Tex. App.—Austin
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Nov. 19, 2015, no pet.) (per curiam) (mem. op., not designated for publication) (holding
that findings and conclusions did not constitute an appealable order).
In light of the foregoing, we sent Smith a letter expressing our concern that we
do not have jurisdiction because the trial court has not entered any appealable orders.
We informed Smith that unless he or any other party desiring to continue the appeal
filed a response showing grounds for continuing the appeal, we would dismiss it. See
Tex. R. App. P. 44.3.
In his response, Smith did not contend that the denial of his motion for findings
and conclusions was an appealable order. However, Smith did argue that Shortt v. State
allows an appeal from an order denying shock probation. 539 S.W.3d 321 (Tex. Crim.
App. 2018).
Smith has misread Shortt, which held that an order granting shock probation was
appealable under a statute that provided, “The right of the defendant to appeal for a
review of the conviction and punishment, as provided by law, shall be accorded the
defendant at the time he is placed on community supervision.” Id. at 323; see Tex. Code
Crim. Proc. Ann. art. 42A.755(e). Shortt reasoned that when the trial court grants a
defendant shock probation, the court “places the defendant on community
supervision” for purposes of the statute and thus triggers the right to appeal. Shortt,
539 S.W.3d at 326 (cleaned up). Shortt said nothing of those who are denied shock
probation, and its rationale does not embrace situations such as this one: those who
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are denied shock probation cannot be said to have been placed on community
supervision. See id.

Outcome: Because there is no appealable order, we dismiss the appeal for want of
jurisdiction.

Plaintiff's Experts:

Defendant's Experts:

Comments: