NO. 07-03-0013-CR
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL E
JULY 1, 2003
______________________________
OSCAR BALDERAS
,
Appellant
v.
THE STATE OF TEXAS,
Appellee
_________________________________
FROM THE 64TH DISTRICT COURT OF HALE COUNTY;
NO. A13518-9909; HON. JACK R. MILLER, PRESIDING
_______________________________
Before QUINN and REAVIS, JJ., and BOYD, S.J. (1)
Oscar Balderas (appellant) filed a hand written document which we construed to be a notice of appeal from his confinement in a restitution center as a condition of his probation. The clerk's record was filed on January 30, 2003. The reporter's record was filed on March 7, 2003. Thus, appellant's brief was due on April 7, 2003. However, one was not filed on that date. By letter dated April 16, 2003, we notified appellant of the expired deadline and directed him to respond to our notification of same by April 28, 2003, or the appeal would be abated to the trial court pursuant to Tex. R. App. P. 38.8. April 28, 2003, passed without appellant submitting any response to our notice.
Consequently, we abated this appeal and remanded the cause to the 64th District Court of Hale County (trial court) and directed that it conduct a hearing to assess, among other things, whether appellant desired to prosecute the appeal. At that hearing, appellant informed the trial court that he no longer did. Furthermore, appellant's representations were contained in a supplemental clerk's record which was filed on June 24, 2003.
Although we have no motion to dismiss before us as required by Texas Rule of Appellate Procedure 42.2(a), Rule 2 of the same rules permits us to suspend the operation of an existing rule. Tex. R. App. P. 2; see Rodriguez v. State, 970 S.W.2d 133, 135 (Tex. App.--Amarillo 1998, pet. ref'd). Therefore, pursuant to Rule 2, and because appellant has clearly revealed his desire to forego appeal, we suspend Rule 42.2(a) and dismiss the appeal based upon appellant's representation to the trial court.
Having so dismissed the appeal, no motion for rehearing will be entertained, and our mandate will issue forthwith. (2)
Brian Quinn
Justice
Do not publish.
1. John T. Boyd, Chief Justice (Ret.), Seventh Court of Appeals, sitting by assignment. Tex. Gov't Code Ann. §75.002(a)(1) (Vernon Supp. 2003). 2. On June 2, 2003, the State filed a motion to dismiss appellant's appeal based on missed deadlines and the lack of this court's jurisdiction over the appeal. Based on the disposition of the appeal, the State's motion is now moot.
o, 918 S.W.2d at 523 (quoting Ex parte Caldwell, 383 S.W.2d 587, 589 (Tex.Crim.App. 1964). If an appellate court determines that it has no jurisdiction to decide the merits of an appeal, the appropriate action is to dismiss. See State v. Taft, 958 S.W.2d 842, 843 (Tex.Crim.App. 1998).
ANALYSIS
Ordinarily, an order modifying probation is not subject to appeal. See Basaldua v. State, 558 S.W.2d 2, 5 (Tex.Crim.App.1977). Case law has allowed complaints about a modification order on appeal only when violation of the modified order forms the basis of a subsequent revocation. See Elizondo v. State, 966 S.W.2d 671, 672 (Tex.App.-San Antonio 1998, no pet.). Under Rules of Appellate Procedure 25.2 and 26.2, (1) a defendant's appeal from a judgment or other appealable order is perfected by filing a notice of appeal within 30 days after the date sentence is imposed or suspended in open court, or after the day the trial court enters an appealable order. Because this is an appeal from a modification of the conditions of probation, and not from a revocation of probation, we find that the order is not appealable and we have no jurisdiction.
CONCLUSION
Determining that we have no jurisdiction to entertain appellant's appeal, we dismiss for want of jurisdiction.
Mackey K. Hancock
Justice
1. The Rules of Appellate Procedure do not establish jurisdiction of courts of appeals, but, rather, the Rules provide procedures which must be followed in order to invoke jurisdiction over a particular appeal. See Olivo, 918 S.W.2d at 523.
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