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SMITH, FERNANDO

PD-0514-17 08/23/2017

“When a defendant files a timely notice of appeal from a judgment adjudicating his guilt and is later placed on shock community supervision, to complain on appeal about a condition of that community supervision must he file a new notice of appeal?”

After Smith’s deferred adjudication community supervision was revoked, he appealed.  While the appeal was pending, the trial court granted Smith community supervision.   A new judgment was entered, and Smith did not file a notice of appeal.  In his pending appeal, Smith complained about errors related to the second judgment.  The court of appeals dismissed for lack of jurisdiction.  It determined that the second judgment rendered the first moot, and Smith failed to appeal the second judgment.

Smith argues that the court of appeals’ decision conflicts with Perez v. State, 938 S.W.2d 761 (Tex. App.—Austin 1997, pet. ref’d), and Dodson v. State, 988 S.W.2d 833 (Tex. App.—San Antonio 1999, no pet.).   Perez and Dodson, Smith maintains, held that a notice of appeal is timely in this scenario when the notice was filed after the original judgment, not the subsequent order suspending sentence.   Further, Tex. R. App. P. 27.1(b), governing premature notices of appeal, also supports the timeliness of the notice.

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