author: DAVIS, Chief Justice. GRAY, Justice,

text:
    In re Dionel RUIZ and Renee Bonfiglio Ruiz.
    No. 10-00-174-CV.
    Court of Appeals of Texas, Waco.
    May 25, 2000.

      Robert T. Swanton, Jr., Law Offices of Robert T. Swanton, Jr., Waco, for relator Dionel Ruiz.
    John M. Hurley, Waco, for relator Renee Bonfiglio Ruiz.
    John W. Segrest, Criminal Dist. Atty., James Wiley, Asst. Criminal Dist. Atty., for real party in interest, Texas Dept, of Protective and Regulatory Services.
    Gary Raymond Coley, Frederick & Coley, Waco, attorney ad litem.
   OPINION

DAVIS, Chief Justice.

Relators Dionel Ruiz and Renee Bonfig-lio Ruiz ask this Court to issue a writ of mandamus against Respondent, the Honorable Ralph T. Strother, Judge of the 19th District Court of McLennan County. The Ruizes request that we order Respondent to dismiss a suit affecting the parent-child relationship filed against them by the Department of Protective and Regulatory Services (“DPRS”) because Respondent allegedly failed to render a final order in the case by the Monday following the first anniversary of DPRS’s appointment as temporary managing conservator of their daughter R.R. We will conditionally grant the relief requested.

BACKGROUND

Respondent signed an order appointing DPRS as temporary managing conservator of R.R. on April 6, 1999. A jury returned a verdict recommending termination of the Ruizes’ parental rights on March 28, 2000. On that date, Respondent made the following handwritten notation on the docket sheet:

Jury returned verdict at approximately 7:15 p.m. Decree of termination to be entered as to both parents per jury’s verdict, /s/ Ralph T. Strother, Judge Presiding.

The Ruizes filed substantially identical motions to dismiss the suit under section 263.401(a) of the Family Code on April 26 and 27. See Tex. Fam.Code Ann. § 263.401(a) (Vernon Supp.2000). Respondent set the matter for hearing on May 2. Respondent signed a final decree terminating the Ruizes’ parental rights and appointing DPRS as permanent managing conservator of R.R. on May 2. He signed an order denying the Ruizes’ dismissal motions three days later.

RENDITION OF JUDGMENT

The issue presented in this proceeding is whether the above-quoted docket notation constitutes rendition of a final order sufficient to avoid the one-year dismissal mandated by section 263.401(a). That statute requires a trial court to dismiss a suit filed by DPRS “on the first Monday after the first anniversary of the date the court rendered a temporary order appointing [DPRS] as temporary managing conservator” “[ujnless the court has rendered a final order or granted an extension.” Tex. Fam.Code Ann. § 263.401(a).

A trial court renders judgment by oral pronouncement of its decision in open court or by a signed, written memorandum filed with the clerk. S & A Restaurant Corp. v. Leal, 892 S.W.2d 855, 857-58 (Tex.1995) (per curiam). To constitute rendition, the court’s pronouncement “must clearly indicate the intent to render judgment at the time the words are expressed.” Id. at 858; Balogh v. Ramos, 978 S.W.2d 696, 701 (Tex.App. — Corpus Christi 1998, pet. denied) (op. on reh’g), cert. denied, — U.S.-, 120 S.Ct. 66, 145 L.Ed.2d 57 (1999). For suits affecting the parent-child relationship, the Legislature has provided that rendition of judgment may be accomplished by a docket notation. See Tex. Fam.Code Ann. § 101.026 (Vernon 1996).

Furthermore, section 263.401(d) specifically defines what is required to constitute a “final order” for purposes of that statute. See Tex. Fam.Code Ann. § 263.401(d) (Vernon Supp.2000). The parties agree that only subdivision (d)(4) potentially applies in this case. Id. § 263.401(d)(4). That subdivision defines a “final order” as one which “terminates the parent-child relationship and appoints a relative of the child, another suitable person, or the department as managing conservator of the child.” Id.

We have no record of an oral pronouncement in this case. See S & A Restaurant Corp., 892 S.W.2d at 857. Thus, the issue before us is whether Respondent’s signed docket notation constitutes rendition of judgment by written memorandum. Id. The docket notation states in pertinent part, “Decree of termination to be entered as to both parents per jury’s verdict.” This notation fails to satisfy either of the requirements of a subdivision (d)(4) “final order.” See Tex. Fam.Code Ann. § 263.401(d). The notation does not “grant” DPRS’s petition, nor does it “order” or “decree” that the Ruizes’ parental rights be terminated. Cf. Balogh, 978 S.W.2d at 700; Giles v. Giles, 830 S.W.2d 232, 234 (Tex.App. — Fort Worth 1992, no writ). Rather, it indicates the court’s intent to render a termination decree in the future. Cf. Intercoastal Warehouse Corp. v. Clear Lake Nat’l Bank, 795 S.W.2d 294, 295-96 (Tex.App. — Houston [14th Dist.] 1990, writ dism’d w.o.j.); Formby’s KOA v. BHP Water Supply Corp., 730 S.W.2d 428, 430-31 (Tex.App. — Dallas 1987, no writ).

Even assuming that rendition of a termination decree could be implied from the docket notation, the writing fails to address the appointment of a managing conservator for R.R., which subdivision (d)(4) requires in a “final order.” See Tex. Fam.Code Ann. § 263.401(d)(4). DPRS does not address the requirements of subdivision (d)(4) in its response. The attorney ad litem for R.R. argues that the docket notation nonetheless satisfies subdivision (d)(4) because, “under the circumstances of this case, the only party who could become managing conservator following the termination of parental rights was [DPRS].” We disagree.

Section 161.207(a) provides in pertinent part:

If the court terminates the parent-child relationship with respect to both parents or to the only living parent, the court shall appoint a suitable, competent adult, the Department of Protective and Regulatory Services, a licensed child-placing agency, or an authorized agency as managing conservator of the child.

Tex. Fam.Code Ann. § 161.207(a) (Vernon 1996). Section 161.207(a) finds its origin in a substantially similar statute first enacted by the Legislature in 1907. See Act approved Apr. 5, 1907, 30th Leg., R.S., ch. 64, § 6, 1907 Tex. Gen. Laws 136, 136 (amended 1962) (current version at Tex. Fam.Code Ann. § 161.207). The 1907 Act provided in pertinent part:

Upon the hearing of such case, if the said child shall be found to come within any of the provinces of Section 1 of this act it shall be adjudged a “dependent child,” and an order may be entered making disposition of said child as to the court seems best for its moral and physical welfare. It may be turned over to the care and custody of any suitable person or any suitable institution in the county or State organized for the purpose of caring for “dependent children” and which is able and willing to care for same.

Id.

Under the 1907 version of the statute, Texas courts held that “the trial court had the authority to award custody of the children to any suitable person or agency.” Moore v. Ham, 342 S.W.2d 826, 826 (Tex. Civ.App. — Amarillo 1961, no writ) (citing Bough v. Bough, 263 S.W.2d 573, 674 (Tex. Civ.App. — San Antonio 1953, no writ)); accord Davis v. Collins, 147 Tex. 418, 424, 216 S.W.2d 807, 811 (1949); DeWitt v. Brooks, 143 Tex. 122, 128, 182 S.W.2d 687, 691 (1944). In Bough, the court concluded that the trial court:

had the authority of its own motion, and in the absence of application therefor (if under the evidence it deemed that neither parent was a proper person to have the custody and control of the children), to award such custody to any suitable person disposed to assume this responsibility.

Bough, 263 S.W.2d at 574 (quoting Noble v. Noble, 185 S.W. 318, 319 (Tex.Civ. App. — Austin 1916, no writ)); accord Haynes v. Haynes, 191 S.W.2d 81, 81 (Tex. Civ.App. — Beaumont 1945, writ dism’d).

Because of the substantial similarities between the 1907 statute and section 161.207, we presume that the Legislature intended for this construction of the statute to continue. See Ector County v. Stringer, 843 S.W.2d 477, 479 n. 4 (Tex. 1992); Cooper v. St. Paul Fire & Marine Ins. Co., 985 S.W.2d 614, 617-18 (Tex. App.- — Amarillo 1999, no pet.); Blount v. Dutton, 967 S.W.2d 955, 957 (Tex.App.— Beaumont 1998, no pet.). Accordingly, we conclude that Respondent could have appointed any suitable person or agency to be R.R.’s managing conservator, regardless of whether such person or agency filed pleadings requesting such appointment. See Tex. Fam.Code Ann. 161.207; Bough, 263 S.W.2d at 574; Haynes, 191 S.W.2d at 81; Noble, 185 S.W. at 319.

ADEQUATE REMEDY AT LAW

Settled law establishes that mandamus relief is appropriate to correct a clear abuse of discretion when the Relator has no adequate remedy at law. Walker v. Packer, 827 S.W.2d 833, 839 (Tex.1992) (orig.proceeding); In re Bishop, 8 S.W.3d 412, 416 (Tex.App. — Waco 1999, orig. proceeding [mand. denied]). This Court has determined that mandamus is an appropriate vehicle for enforcement of section 263.401 because the relators in such a case have no adequate legal remedy by which they can otherwise obtain timely compliance with the statute. Bishop, 8 S.W.3d at 416, 421; accord In re Neal, 4 S.W.3d 443, 447 (Tex.App. — Houston [1st Dist.] 1999, orig. proceeding [mand. denied]).

DPRS contends that mandamus is inappropriate in this case because an appeal is “immediately available” to the Ruizes in which they can assert the question presented. DPRS distinguishes our Bishop decision, in which we held that the relators had no adequate remedy by appeal, on the basis that Bishop involved a pre-trial ruling. See Bishop, 8 S.W.3d at 415-16. We reject this distinction. When the Ruizes filed their respective motions to dismiss under section 263.401(a), Respondent had no discretion but to dismiss the suit. Id. at 419.

Respondent signed a “Final Judgment” in this case on May 2, six days after Dionel Ruiz filed his motion to dismiss. Assuming no motion for new trial is filed, the Ruizes’ notice of appeal would be due on June 1. Tex.R.App. P. 26.1(a). The Family Code mandates that appeals in such cases “be given precedence over other civil cases.” Tex. Fam.Code Ann. § 109.002(a) (Vernon Supp.2000). Assuming we treated such an appeal as an accelerated one for the remainder of the appellate timetables, the record would be due on June 12. See Tex.R.App. P. 35.1(b). The Ruizes’ brief would then be due on July 3 and DPRS’s brief on July 24. Id. 38.6(a), (b). If we shortened the usual twenty-one days’ notice for submission to two days, the appeal would be argued on July 26, which is more than two months later than the date on which this proceeding was argued and more than three months later than the dismissal date provided by section 263.401(a). Id. 38.6(d), 39.9.

As we observed in Bishop, the “legislature enacted [section 263.401] to carry out the recommendation of the Governor’s Committee that parental rights be terminated or families reunified within twelve months.” Bishop, 8 S.W.3d at 417. To accomplish this purpose, section 263.401 expressly requires not that the trial on the merits be had within twelve months after DPRS’s appointment as temporary managing conservator, but that a “final order” be “rendered” within that period. Tex. Fam. Code Ann. § 263.401(a).

“Justice demands a speedy resolution of child custody and child support issues.” Bishop, 8 S.W.3d at 416 (quoting Proffer v. Yates, 734 S.W.2d 671, 673 (Tex. 1987) (orig.proceeding)). The Supreme Court recognized in Proffer that an appeal “is frequently inadequate to protect the rights of parents and children” in these cases. Proffer, 734 S.W.2d at 673; accord Bishop, 8 S.W.3d at 416. Applying these principles to the Ruizes’ case and the legislative purpose for section 263.401, we believe that an appeal is inadequate to obtain timely compliance with the statute. See Bishop, 8 S.W.3d at 416, 421; Neal, 4 S.W.3d at 447.

ABSURD RESULT

Both DPRS and the ad litem contend that it would be absurd to apply the plain language of section 263.401(a) to this case because the jury’s verdict would be set aside, DPRS would have to re-file its petition, and R.R. would potentially have to spend up to eighteen additional months in foster care awaiting a second trial and judgment.

We will decline to follow the plain meaning of a statute when following the letter of the law would produce an absurd result. See Fleming Foods of Tex., Inc. v. Rylander, 6 S.W.3d 278, 284 (Tex.1999); Bishop, 8 S.W.3d at 418. The clear purpose of section 263.401 dictates “that parental rights be terminated or families reunified within twelve months.” Bishop, 8 S.W.3d at 417. Because a “final order” was not timely rendered, termination of the Ruizes’ parental rights was not complete for purposes of the statute. See Tex. Fam.Code Ann. § 263.401(a). Thus, R.R. must be reunited with her family if we conclude that dismissal is not an “absurd result.”

We have already determined that a dismissal under section 263.401(a) is without prejudice, so DPRS would be able to refile the case asserting the same grounds for termination as originally alleged. See Bishop, 8 S.W.3d at 420. However, it is not equally clear that DPRS can keep R.R. in foster care absent new facts supporting removal from the home. Cf. Slatton v. Brazoria County Prot. Servs. Unit, 804 S.W.2d 550, 552-53 (Tex.App. — Texarkana 1991, no writ) (res judicata applies in termination cases instituted by the State); see also Martin v. Cameron County Child Welfare Unit, 326 S.W.2d 31, 37-38 (Tex. Civ.App. — San Antonio), writ refd n.r.e., 160 Tex. 274, 329 S.W.2d 83 (1959) (per curiam) (parents entitled to custody of child after trial in which parental rights not terminated).

In light of Slatton, we conclude that DPRS cannot again remove R.R. from her home or keep her in foster care absent new facts which support removal under chapter 262 of the Family Code. According to Respondent’s docket sheet, DPRS removed R.R. from her home on or about April 1, 1999. Respondent signed temporary orders on April 6 appointing DPRS as temporary managing conservator. To support a subsequent removal, DPRS must rely on facts warranting removal which have occurred after the adversary hearing held on April 6, 1999. To hold otherwise would render section 263.401(a) meaningless because DPRS would be permitted to maintain custody of a child in its care indefinitely merely by annually re-filing suit. This is clearly contrary to the purpose of the statute. See Bishop, 8 S.W.3d at 417; see also Tex. Gov’t Code Ann. § 312.005 (Vernon 1998) (when construing statute, court “shall consider at all times the old law, the evil, and the remedy”).

For these reasons, we conclude that applying the plain language of section 263.401(a) in this case does not produce an absurd result. Rather, the statute mandates that R.R. must be reunified with her family because DPRS failed to obtain rendition of a “final order” in a timely manner. See 5 Roy W. McDonald & Elaine G. CaRlson, Texas Civil PRACTICE § 27:9 (2d ed.1999) (disputes concerning rendition of judgment “are unnecessary and reflect more on the trial judge and the prevailing counsel than on the rules of procedure”). Accordingly, we conditionally grant the requested writ of mandamus. The writ will issue only if Respondent fails to sign an order dismissing the suit filed by DPRS no later than 5:00 p.m., May 30, 2000.

Justice GRAY dissenting.

GRAY, Justice,

dissenting.

Because the Ruizes have an adequate remedy by appeal, I disagree with the conditional grant of the writ of mandamus. The requirement that mandamus will not issue where there is an adequate remedy by appeal is well-settled. Walker v. Packer, 827 S.W.2d 833, 840 (Tex.1992). Mandamus is intended to be an extraordinary remedy, available only in limited circumstances and will issue only in situations involving manifest and urgent necessity. Id. An exception to the “adequate remedy by appeal” requirement of Walker was recognized by the Texas Supreme Court in Proffer. The Court observed,

Parents and children who have a right under the mandatory venue provision to venue in a particular county should not be forced to go through a trial that is for naught Justice demands a speedy resolution of child custody and child support issues.

Proffer v. Yates, 734 S.W.2d 671, 673 (Tex. 1987) (emphasis added).

In Proffer, the parent and child had moved to another jurisdiction and the court of original jurisdiction was required to transfer the case to the new jurisdiction. The thrust behind the Proffer exception is avoidance of an unnecessary trial in child custody cases. In the cases in which this court has cited Proffer for allowing the parties to pursue relief by mandamus, we were likewise avoiding an unnecessary trial. See In re Verbois, 10 S.W.3d 825 (Tex. App. — Waco 2000, orig. proceeding); In re Bishop, 8 S.W.3d 412 (Tex.App. — Waco 1999, orig. proceeding); In re Simonek, 3 S.W.3d 285 (Tex.App. — Waco 1999, orig. proceeding); In re Sanchez, 1 S.W.3d 912 (Tex.App. — Waco 1999, orig. proceeding). However, in this case, there has already been a trial. The jury has already determined that the Ruizes’ parental rights should be terminated. The trial court has already signed an order of termination. The reason for allowing relief by mandamus simply does not exist in this case.

The order based on the jury’s verdict was signed by the trial court five days before the Ruizes filed their mandamus action. They have not demonstrated any reason that they do not have an “adequate remedy by appeal” as required by Walker. They have an adequate remedy by appeal, and therefore, this mandamus should be denied.

      . The Ruizes are represented by separate counsel.

      . The term "section” as used hereinafter refers to a section of the Family Code unless otherwise indicated.

      . Rendition of judgment and entry of judgment are distinct actions. See Burrell v. Cornelius, 570 S.W.2d 382, 384 (Tex.1978); Oak Creek Homes, Inc. v. Jones, 758 S.W.2d 288, 290 (Tex.App. — Waco 1988, no writ). Judgments usually go through three stages: rendition, reduction to writing, and entry. Oak Creek Homes, 758 S.W.2d at 290. The trial court renders its judgment. After rendition, the trial court or the prevailing party prepares a written judgment which is signed by the court. After signing, the trial court clerk enters the written judgment on the minutes of the court. Burrell, 570 S.W.2d at 384; Oak Creek Homes, 758 S.W.2d at 290.

      . This is contrary to the general rule in civil cases that a docket notation standing alone does not constitute rendition of judgment. See McCormack v. Guillot, 597 S.W.2d 345, 346 (Tex.1980) (orig.proceeding); Withrow v. State Farm Lloyds, 990 S.W.2d 432, 435 (Tex. App. — Texarkana 1999, pet. denied).

      . We note that section 161.207(a) contains a more expansive listing of entities whom the trial court can appoint as managing conservator than does section 263.401(d)(4) because the former includes appointment of (in addition to DPRS) "a licensed child-placing agency, or an authorized agency” while the latter does not. Compare Tex. Fam.Code Ann. § 161.207(a) (Vernon 1996) with Tex. Fam. Code Ann. § 263.401(d)(4) (Vernon Supp. 2000). However, because the docket notation in this case appoints no managing conservator, the distinction is irrelevant for purposes of this proceeding.

      . The Legislature codified section 6 of the 1907 Act as article 2189 of the Revised Civil Statutes of 1911. See Revised Statutes, 3 2d Leg., R.S., § 1, art. 2189, in Tex.Rev.Civ. Stat. (1911), § 1, at 467 (Austin Printing Co.1912). Article 2189 became article 2335 without substantive change in the Revised Civil Statutes of 1925. See Act effective Sept. 1, 1925, 39th Leg., R.S., § 1, art. 2335, in Tex.Rev.Civ. Stat. (1925), § 1, at 621-22 (A.C. Baldwin & Sons 1925). In 1973, this provision became section 15.05(b) of Title 2 of the Family Code. See Act of May 25, 1973, 63d Leg., R.S., ch. 543, § 1, sec. 15.05(b), 1973 Tex. Gen. Laws 1411, 1428-29 (amended 1989) (current version at Tex. Fam.Code Ann. § 161.207). The Legislature repealed the former Title 2 and enacted the current statute in 1995. See Act of Apr. 6, 1995, 74th Leg., R.S., ch. 20, § 1, sec. 161.207, § 2(1), 1995 Tex. Gen. Laws 113, 217, 282.

      . We leave for another day the issue of whether a party in the Ruizes' position who fails to seek dismissal of the suit until after the signing of a final order can be held to have forfeited any right to mandamus relief.

      . Even so assuming, an appeal given precedence by statute is not the same as an accelerated appeal. Compare Tex.R.App. P. 28 with Tex. Fam.Code Ann. § 109.002(a) (Vernon Supp.2000); but cf. Tex.R.App. P. 40.1. Accelerated appeals generally involve interlocutory orders with a limited record. See, e.g., Tex R.App. P. 28.1; Tex. Civ. Prac. & Rem.Code Ann. 51.014(a) (Vernon Supp.2000). On the other hand, appeals given statutory precedence generally arise following a trial on the merits and as such will usually involve a more lengthy record. See, e.g., Tex. Fam.Code Ann. § 56.01(h) (Vernon 1996) (appeal following juvenile adjudication in which child removed from home), § 109.002(a) (appeal from custody determination). For this reason, it may be unreasonable to expect the trial court clerk and court reporter to have the record prepared in such cases within the 10 days provided for interlocutory appeals.

      .Again we note that such an accelerated timetable would be highly unlikely given the delays which frequently occur in the appellate process.

      . Because Dionel Ruiz is apparently incarcerated, this would necessarily mean reunification with Renee Bonfiglio Ruiz.

      . Because I believe the mandamus should not be considered, much less granted, I will not discuss my substantial disagreement with the result, analysis or discussion of issues including many of which are not before this court in this proceeding.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    The STATE of Texas, Appellant, v. Mark Hamilton MORGAN, Appellee.
    No. 1083-03.
    Court of Criminal Appeals of Texas.
    Sept. 10, 2003.
    Craig Hughes, Houston, for Appellant.
    Gail Kikawa McConnell, Assist. DA, Conroe, Matthew Paul, State’s Atty., Austin, for State.
   ORDER

PER CURIAM.

Appellant was charged with driving while intoxicated (DWI), with one prior DWI conviction alleged for enhancement. The State filed a pretrial motion requesting that the trial court decide whether it would instruct the jury on the punishment range under Penal Code § 49.09(a) or Penal Code § 12.43(b) if the jury found Appellant guilty and the enhancement paragraph true. The trial court ruled that it would instruct the jury on the punishment range pursuant to § 12.43(b). The State appealed this order.

The Court of Appeals affirmed the trial court’s order, holding that an allegation of a prior conviction used to enhance a class B DWI to a class A DWI under Art. 49.09(a) must be read to the jury and proved during the guilt-innocence phase of the trial. State v. Morgan, 110 S.W.3d 512 (Tex.App.-Beaumont, 2003). The State has filed a petition for discretionary review challenging the Court of Appeals’ decision. The State’s petition is granted.

In addition, this Court grants on its own motion the following ground, “Whether Article 44.01, V.A.C.C.P., or any other law, authorizes the State’s appeal in this case.” The parties are ordered to brief this issue, along with the issue raised in the State’s petition.


author: KEASLER, J.,

text:
    The STATE of Texas v. Mark Hamilton MORGAN, Appellee.
    No. 1083-03.
    Court of Criminal Appeals of Texas.
    May 5, 2004.
    Rehearing Denied July 28, 2004.

      D. Craig Hughes, Houston, for Appellant.
    Gail Kikawa McConnell, Assistant District Attorney, Conroe, Matthew Paul, State’s Attorney, Austin, for State.
   OPINION

KEASLER, J.,

delivered the opinion of the Court joined by MEYERS, PRICE, WOMACK, JOHNSON, HERVEY, HOLCOMB, and COCHRAN, JJ.

The State charged Mark Hamilton Morgan with DWI and alleged a prior DWI conviction. Before trial, the State requested the judge to treat the information as alleging a Class A misdemeanor under Penal Code § 49.09. The judge instead ruled that he would treat it as charging a Class B misdemeanor with an enhancement allegation pursuant to Penal Code § 12.43. The State appealed this pretrial ruling. We find no jurisdiction for the State’s appeal.

Facts and Procedural History

The State’s information charged Morgan with driving while intoxicated on September 5, 2002. In a separate paragraph, the information alleged that Morgan had previously been convicted of driving while intoxicated in 1993. Because the judge had ruled in other cases that this type of information alleged a Class B offense, the State filed a motion for “a pre-trial determination of whether, if the defendant is found guilty, the jury will be instructed to consider a Class A range of punishment if the prior conviction is found true.” The State explained that it was seeking a pretrial ruling rather than disrupt the proceedings with an appeal after a finding of guilt.

At the hearing, defense counsel argued that the State’s request was premature because the State was seeking “a determination on a punishment issue” and that “any such determination should be made at the time of the punishment phase of the trial should that become necessary.” The judge acknowledged that the defense “could be right,” but nevertheless ruled. The judge said his opinion was that “it’s impossible for the Court to instruct on a Class A range because same has not been pled because I feel like it has to be an element of the offense to come under 49.09 Class A offense. The separate paragraph is pleading for enhanced B under 12.43 of enhancement for punishment, and that’s not what the State wants.”

In a written order, the judge granted the State’s motion in that he agreed to provide a pretrial ruling. He ruled that he would not instruct the jury on the Class A range of punishment if the defendant were found guilty and the enhancement paragraph were found true.

The State appealed this ruling. In its notice of appeal, it contended that it had the right to appeal pursuant to Art. 44.01(a)(1), which grants the State the right to appeal “an order of a court in a criminal case if the order dismisses ... any portion of an ... information.”

The Court of Appeals, relying on State v. Moreno, , concluded that it had jurisdiction over the appeal because “the trial court’s ruling effectively terminated the prosecution for an ‘enhanced’ offense.” Reaching the merits of the appeal, the appellate court found no error in the trial court’s ruling and remanded the case for further proceedings. Justice Burgess dissented on this point but did not dispute the court’s jurisdiction over the appeal.

We granted the State’s petition for discretionary review, which asks whether the prior conviction of a DWI offense punishable as a Class A misdemeanor is an element of the offense that should be read and proved by the State at guilt-innocence. We also granted review, on our motion, of an additional ground: whether Art. 44.01, or any other law, authorizes the State’s appeal in this case. Because of our resolution of this latter ground, we do not reach the State’s ground for review.

Analysis

The State is entitled to appeal an order that “dismisses an indictment, information, or complaint or any portion of an indictment, information, or complaint.” In Moreno, we examined this language in depth. There, the defendant filed a motion to quash the information. The trial judge granted the motion but crossed out language in the defendant’s order that said “and this cause is dismissed.” The State appealed the order granting the motion to quash. The Court of Appeals concluded that it did not have jurisdiction over the State’s appeal because the trial court’s order had not dismissed the information. Instead, the court of appeals said, the State had the ability to cure the defect by amending the information.

We reversed. We indicated that the word “dismisses” in Art. 44.01 is ambiguous because the Legislature did not use terminology from the Code of Criminal Procedure. We looked to extra-textual factors, including the bill analysis and federal caselaw, to ascertain the meaning of “dismisses.” We recognized that the intent of the statute was to afford the State the same right to appeal as that granted the federal government in 18 U.S.C. § 3731. We concluded that “[t]he mere label attached either to the defendant’s motion or to the trial court’s order ruling on same cannot determine its appealability” and that “the State has the power to appeal from any trial court order concerning an indictment or information ... whenever the order effectively terminates the prosecution in favor of the defendant.” That happens, we held, “whenever the effect of the [trial court’s] order forces any alteration of the indictment or information before the trial on the merits and the State is not willing to comply with that order.”

Relying on this language, the State argues that the trial judge’s order in this case “effectively quashed the information and terminated the prosecution of a Class A misdemeanor.” The State contends that “[t]he fact that the trial court did not actually or physically quash any part of the State’s indictment [sic] is of no moment.” Instead, the State argues, the judge’s order “required the State to amend the information.”

To clarify the issue, it is useful to explain the underlying dispute, even though we do not resolve it today. Driving while intoxicated is a Class B misdemeanor with a maximum term of confinement for 180 days. But under Penal Code § 49.09, it is a Class A misdemeanor, with a minimum term of confinement of 30 days, if it is shown on the trial of the offense that the person has previously been convicted of an intoxication-related offense. In that situation, the maximum confinement is one year. On the other hand, Penal Code § 12.43(b) provides that if a defendant convicted of a Class B misdemeanor has previously been convicted of a Class A or Class B misdemeanor or any felony, he is to be punished by confinement in jail for not more than 180 days or less than 30 days. So the Penal Code includes two separate statutes providing for potentially increased punishment in the case of a person’s second offense of driving while intoxicated. The trial judge in this case determined that § 12.43(b) controls due to the manner in which the State crafted its information, and the State objects.

Although we do not resolve the underlying substantive issue, this canvass illustrates the answer to our jurisdictional question. Regardless of how the trial court were to rule on the State’s pretrial motion, this DWI prosecution would proceed. It may not proceed in the manner in which the State or Morgan desired. It may proceed with the evidence of the prior DWI conviction being admitted at guilt-innocence. It may proceed with Morgan being subjected to a punishment range that one party opposes. But the prosecution will proceed. Nothing in the trial court’s order purports to prevent the prosecution from moving forward on this information. The order does not force an alteration of the information before trial can proceed. Instead, it forces the State to alter the information before trial can proceed in the manner in which the State chooses.

Since the prosecution would proceed regardless of the trial court’s ruling, this is an interlocutory appeal. As a general rule, interlocutory appeals are not permitted. Art. 44.01 provides several instances in which the State can appeal, but only one of those involves an interlocutory appeal. Subsection (a)(5) allows the State to file an interlocutory appeal from a trial court’s order granting a motion to suppress evidence. But the statute specifies conditions to such an appeal. The prosecutor must include a certification that the appeal is not taken for purposes of delay. There is no certification requirement under any of the other subsections, including subsection (a)(1). So an appeal under subsection (a)(1) is not to be utilized as an interlocutory appeal. It is supposed to be used only if the prosecution is terminated.

Additionally, we have recognized the need for speed with interlocutory appeals. The State seeks such speed in this case. It filed a motion to expedite this appeal on July 1, 2003, which we denied. The State’s recognition that speed is desirable is further evidence that this is an interlocutory appeal. And in the motion, the State concedes that “[i]f the court of appeals is correct, the State will happily read and prove the prior conviction at guilt-innocence.” The State acknowledges that this case will proceed, one way or another, after the trial court’s order. So the trial court’s order did not terminate the prosecution, and no jurisdiction exists for this appeal.

Conclusion

We disagree with the State that the trial judge’s order “effectively terminated the prosecution.” The order in this case affected only Morgan’s possible punishment range. As a result, this is an interlocutory appeal for which appellate courts have no jurisdiction.

We reverse the judgment of the Court of Appeals and remand this case to the trial court for proceedings consistent with this opinion. We dismiss the State’s ground for review as moot.

KELLER, P.J., concurred in the result.

      . Tex.Code Crim. Proc. Art. 44.01. Unless otherwise indicated, all references to articles are to the Texas Code of Criminal Procedure.

      . 807 S.W.2d 327, 334 (Tex.Crim.App.1991).

      . State v. Morgan, 110 S.W.3d 512, 513 (Tex.App.-Beaumont 2003).

      . Id. at 513-15.

      . Id. at 515-16 (Burgess, J., dissenting).

      . State v. Morgan, 160 S.W.3d 1, No. 1083-03, 2003 WL 22107912, at * 1 (Tex.Crim.App. Sept. 10, 2003).

      . Art. 44.01(a)(1).

      . State v. Moreno, 769 S.W.2d 661 (Tex.App.Corpus Christi 1989), rev’d, 807 S.W.2d at 334.

      . 807 S.W.2d at 334.

      . Id. at 329.

      . Id. at 329, 332.

      . Id. at 332.

      . Id.

      . Id. at 334.

      . Tex. Penal Code § 49.04(b).

      . Id. at § 12.22.

      . Id. at § 49.09(a).

      . Id. at §12.21.

      . Id. at § 12.43(b).

      . Ex parte Rathmell, 717 S.W.2d 33, 48 (Tex. Crim.App.1986).

      . Art. 44.01(c)(5); State v. Muller, 829 S.W.2d 805, 809 n. 5 (Tex.Crim.App.1992).

      . State v. Rosenbaum, 818 S.W.2d 398, 402 (Tex.Crim.App. 1991).


text:
    Charles Elvin WHITAKER, Appellant, v. The STATE of Texas.
    No. 74612.
    Court of Criminal Appeals of Texas.
    Jan. 14, 2004.

      Scott Pawgan, Huntsville, for Appellant.
    William Lee Hon, Asst. DA, Livingston, Matthew Paul, State’s Atty., Austin, for State.
   OPINION

KEASLER, J., delivered the opinion for a unanimous Court.

Charles Elvin Whitaker was convicted of the capital murder of Aline Berry and was sentenced to life in prison. He filed a motion for forensic DNA testing, which the trial court denied. Whitaker appeals, arguing that the trial judge erred in various respects. We disagree and affirm the trial court’s judgment.

Factual History

The Court of Appeals set forth the facts of this case as follows:

Charles Whitaker, Fred McGregor, and Danny Hill conspired for several hours to rob seventy-six year old Aline Berry, the owner and manager of the Berry Motel in Corrigan, Texas. In the middle of the night, they entered Ms. Berry’s residence at the motel through an unlocked patio, found her in bed, and held her down while they tied her feet with electrical cord and her hands with pantyhose. Searching for money, they ransacked her home while she lay bound on her bed. The men took a money bag found at the residence and then fled the scene. McGregor left first to get the car. After McGregor brought the car around to the motel, Hill exited the residence and got into the car where he and McGregor waited for one or two minutes for Whitaker to come out of the residence. McGregor testified that when Whitaker reached the car, he (Whitaker) stated he had struck Ms. Berry and “laid the bitch to rest.” The three men then drove to Hill’s residence where they split the money.

James Riley, chief of police in Corri-gan, Texas, arrived at the scene and found Ms. Berry, tied hand and feet, lying dead on her bed. He testified that her residence was in total disarray. He also stated it was known in the community that Ms. Berry kept large sums of money at her home; for that reason, Riley had previously advised her to make regular deposits rather than keep the money at her residence.

Investigator B.W. Emmons of the Montgomery County Sheriffs Department testified the cabinets had been opened in Ms. Berry’s home, almost all the drawers in the home had been dumped to the floor, and the freezer was left open. The door to her safe was also standing open. On the bed next to Ms. Berry’s body was a .22 pump rifle. The stock on the weapon was broken, and two large wooden splinters, which appeared to have come from the rifle’s broken stock, were also found on the bed.

Vladimir Parungao, the assistant medical examiner of Harris County who performed the autopsy on Ms. Berry’s body, stated Ms. Berry died from a blow to the right side of her head. He testified the cause of Ms. Berry’s death was “suppressed head due to blunt trauma to the head.” The dimensions of the end of the rifle butt were consistent with the dimensions of the depressed area on Ms. Berry’s skull. Parungao further testified he observed contusions on the left upper and lower lip, a contusion on the left side of the jaw, a faint linear abrasion on the left side of the face, and imprints where the wrists and ankles were tied.

Procedural History

Whitaker filed his motion for DNA testing and request for appointment of counsel in April, 2002. In it, he requested testing of the “alleged murder weapon,” presumably the rifle butt and stock. In June, he filed his affidavit in support, and in December, the Polk County District Clerk filed an affidavit verifying that State’s Exhibits 29 and 30, the rifle butt and the stock, still existed, were in her custody, were in a condition making DNA testing possible, and had been subjected to a chain of custody sufficient to establish that they had not been substituted, tampered with, replaced, or altered in any material respect.

Later that month, the trial judge signed Whitaker’s proposed findings of fact and order granting DNA testing. A week later, the judge withdrew the order, noting that he had “not had [the] benefit of reading the State’s response.” The State’s Amended Response (no original response is in the record) was filed in January 2003. In it, the State argued that Whitaker failed to satisfy Art. 64.03(a)(2) because he failed to establish that a reasonable probability existed that he would not have been prosecuted or convicted if exculpatory results were obtained through DNA testing. In March 2003, the trial judge entered her order denying Whitaker’s motion due to the failure to meet the requirements of Art. 64.03(a)(2).

Whitaker appeals, asserting three points of error. He contends that the trial judge erred in denying his motion because he established a prima facie case that he was entitled to DNA testing and the State failed to rebut that case. He also argues that the trial judge erred in failing to conduct a hearing on the motion and in concluding that he failed to satisfy Art. 64.03.

After September 1, 2003, appeals from DNA motions in which the defendant was convicted of capital murder and sentenced to life go initially to the courts of appeals. But since Whitaker’s DNA motion was filed before that date, the previous law applies, and the appeal is properly to this Court.

Analysis

A court may order forensic DNA testing if it finds three things: (1) that the evidence “still exists and is in a condition making DNA possible;” (2) that the evidence “has been subjected to a chain of custody sufficient to establish that it has not been substituted, tampered with, replaced, or altered in any material respect;” and (3) that “identity was or is an issue in the case.” However, the convicted person bears the burden of establishing, by a preponderance of the evidence, that “a reasonable probability exists that the person would not have been prosecuted or convicted if exculpatory results had been obtained through DNA testing.” This means that the convicted person must show a reasonable probability exists that exculpatory test results would prove his innocence. We defer to the “trial court’s determination of issues of historical fact and applieation-of-law-to-fact issues that turn on credibility and demeanor, while we review de novo other application-of-law-to-fact issues.”

We turn first to Whitaker’s second point of error, in which he argues that the trial judge erred in failing to conduct a hearing. Whitaker concedes that we held in Rivera v. State that “[njothing in Article 64.03 requires a hearing of any sort concerning the trial court’s determination of whether a defendant is entitled to DNA testing.” He argues Rivera is distinguishable because there, the State offered an affidavit in response to the appellant’s affidavits. In contrast, Whitaker argues, in this case the State offered nothing to rebut Whitaker’s affidavits. Because of that, he argues, “the Court should have had a hearing, to hear evidence from the State, or the Court had to rule in the Applicant’s favor since Applicant is the only one to have produced evidence before the Court.”

Whitaker is mistaken. Nothing in Chapter 64 requires the trial court to conduct a hearing, regardless of whether the State attaches affidavits to its response. We agree with the First Court of Appeals that “[n]o evidentiary hearing is required, and the state is not required to accompany its response with affidavits.” We overrule Whitaker’s second point of error.

Whitaker argues in his first point of error that he established a prima facie case demonstrating his entitlement to DNA testing and the State failed to rebut that case. He claims the State’s failure to submit any affidavit in response to his affidavit required the trial judge to rule in his favor. Whitaker misunderstands the nature of Art. 64.03.

That statute requires the trial judge to make certain findings before ordering DNA testing. It does not establish any presumptions in favor of the applicant when no response is filed by the State. The trial court may make findings for or against an applicant regardless of any response from the State. Whitaker’s first point of error is overruled.

Finally, Whitaker argues in his third point of error that the trial judge erred in finding that he did not satisfy Art. 64.03(a)(2). Whitaker claims in his brief that a test would reveal that another individual committed the murder. He does not elaborate. The State responds that there was no evidence at trial whether the blood on the murder weapon belonged to Whitaker, the victim, or a mixture of both. As a result, the State implies, a DNA test would be meaningless.

We agree with the State. Regardless of whose blood is on the rifle, other evidence at trial established Whitaker’s guilt, including his statement that he had killed the victim.

We agree with the trial judge that Whitaker failed to establish by a preponderance of the evidence that he would not have been prosecuted or convicted if exculpatory results had been obtained through DNA testing. Whitaker’s third point of error is overruled.

Conclusion

The trial court did not err in denying Whitaker’s motion for forensic DNA testing. We affirm the trial court’s judgment.

      . Whitaker v. State, 977 S.W.2d 869, 871-72 (Tex.App.-Beaumont 1998, pet. ref’d).

      . Tex.Code Crim. Proc. art. 64.05 (Vernon 2003).

      . Id. at art. 64.03(a)(l)(A)(i).

      . Id. at art. 64.03(a)(l)(A)(ii).

      . /¿.at art. 64.03(a)(1)(B).

      . Id. at art. 64.03(a)(2)(A).

      . Rivera v. State, 89 S.W.3d 55, 59 (Tex.Crim.App.2002).

      . Id.

      . Id. at 58-59.

      . Cravin v. State, 95 S.W.3d 506, 509 (Tex.App.-Houston [IstDist.] 2002, pet. ref'd).


author: PRICE, J.,

text:
    Ex parte Bobby Ray HOPKINS.
    No. 38173-02.
    Court of Criminal Appeals of Texas.
    Feb. 12, 2004.
    Gary A. Taylor, Austin, for appellant.
    Dale S. Hanna, DA, Cleburne, Matthew Paul, State’s Atty., Austin, for state.
    PRICE, J., filed a dissent to the order denying stay of execution.
   OPINION

Motion for stay of execution denied.

PRICE, J.,

dissenting.

Today the Court votes to deny a stay of execution to an applicant who claims that the method and chemicals used in the administration of the death penalty in Texas is cruel and unusual under the Eighth and Fourteenth Amendments of the United States Constitution. I write separately because I would stay the applicant’s execution pending a determination by this Court that the current method of administering the death penalty in Texas meets all constitutional requirements.

This is a subsequent writ of habeas corpus. The Court may not consider the merits of or grant relief on the subsequent application unless the application meets the requirements provided in Texas Code of Criminal Procedure Article 11.071 § 5(a). The Court may consider a subsequent application if the current claims and issues “could not have been raised in a timely initial application” because “the legal basis for the claim was unavailable on the date that the applicant filed the previous claim.” The applicant argues that the present claim was unavailable because the Texas Legislature only recently enacted a ban prohibiting the use of pancuroni-um bromide in euthanizing animals. Further, the applicant argues that the Court should recognize that this ban, combined with similar bans in twenty other states, demonstrates that “the evolving standards of decency that mark the progress of a maturing society” militate in favor of a national trend of legislatures finding that these chemicals are unacceptable for use in animals.

The Supreme Court has stated that the “clearest and most reliable objective evidence of contemporary values is the legislation enacted by the country’s legislatures.” Additionally, in Atkins v. Virginia, the Court stated that “[i]t is not so much the number of these states that is significant, but the consistency of the change.” Here, although only twenty-one states have acted to ban the use of this pancuronium bromide in the euthanasia of animals, the consistency of this trend over the last several years indicates that there is a national trend recognizing that the use of pancuronium bromide is inhumane in the euthanasia of animals.

Especially poignant is our own legislature’s action in banning the chemical. Clearly, the State of Texas has acted to eliminate the cruel and inhumane euthanasia of animals by limiting the procedures and chemicals that can be used to euthanize. It stands to reason that what is cruel and inhumane for use in animals is also cruel and inhumane for use in human beings. Therefore, a national trend that recognizes that pancuronium bromide is inhumane for use in animals can also be said to be a national trend that recognizes that pancuronium bromide is inhumane for use in human beings.

Because this national trend only recently came to Texas and was only recently acted on by the Texas Legislature, I believe that a new legal claim exists that was unavailable to the applicant in his initial application. Therefore, this Court has jurisdiction to review applicant’s claim pursuant to Texas Code of Criminal Procedure Article 11.071 § 5(a)(1). The Court should grant the applicant the stay of execution and consider the merits of his claim regarding the constitutionality of the current method of administration of the death penalty in Texas.

      . Tex.Code Crim. Proc. Art. 11.071 § 5(a).

      . See Tex. Health & Safety Code § 821.052 (2004) (where the legislature limited the methods of euthanasia to sodium pentobarbi-tal or commercially compressed carbon monoxide), and Tex. Health & Safety Code § 821.056 (2004) (where the legislature made the disregard of the law under this subchapter a Class B misdemeanor).

      . Prop v. Dulles, 356 U.S. 86, 100-101, 78 S.Ct. 590, 2 L.Ed.2d 630 (1958).

      . Penry v. Lynaugh, 492 U.S. 302, 331, 109 S.Ct. 2934, 106 L.Ed.2d 256 (1989).

      . 536 U.S. 304, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002).

      . Id. at 315, 122 S.Ct. 2242.

      . See supra note 2.


author:
MEYERS, J., COCHRAN, J.,
      KELLER, P.J., KEASLER, J.,

text:
    Harold Wayne BAILEY, Appellant, v. The STATE of Texas.
    No. 2189-01.
    Court of Criminal Appeals of Texas, En Banc.
    March 24, 2004.
    Rehearing Denied June 16, 2004.

      R. Scott Shearer, Houston, for Appellant.
    Alan Curry, Asst. DA, Houston, Matthew Paul, State’s Atty., Austin, for State.
   OPINION

MEYERS, J.,

delivered the opinion of the Court,

in which PRICE, JOHNSON, HOLCOMB, and COCHRAN, J.J., joined.

Appellant Harold Wayne Bailey pleaded guilty to the offense of failure to stop and render assistance. Tex. TRAnsp. Code § 550.021(c). The trial court imposed a probated sentence, and later added an order for payment of restitution to the conditions of community supervision. Appellant filed a notice of appeal from the restitution order, which was dismissed as untimely by the court of appeals. We granted review to clarify the application of Texas Rule of Appellate Procedure 26.2, governing time to perfect an appeal. We hold that the notice of appeal in this case was timely, and therefore we will reverse the court of appeals.

On February 12, 2001, appellant pleaded guilty to the offense of failure to stop and render assistance. At that time, the trial court assessed punishment at 5 years, probated for 10 years, and imposed general conditions of community supervision. The trial court then reset the case for a hearing on March 12, 2001, to consider the State’s request for restitution as a further condition of probation. On the plea form, defendant explicitly reserved the right to appeal any restitution ordered.

At the March 12th restitution hearing, the State presented testimony from the victim’s mother, and evidence in the form of medical bills. Appellant unsuccessfully argued that restitution did not flow from the offense of failure to stop and render aid. The trial court ordered that the conditions of probation be amended to require appellant to make restitution payments in the amount of $49,148.43 to the victim. The order was reduced to a writing entitled “Conditions of Community Supervision; 1st Amended,” which was signed and entered on the same date, March 12, 2001.

On April 4, 2001, appellant filed a notice of appeal. The notice stated:

The Defendant desires to appeal the JUDGMENT and SENTENCE in the above cause, in addition to the Court’s appealable ORDERS concerning restitution and probationary conditions. The trial court has granted the Defendant permission to appeal.

In an unpublished memorandum opinion, the 14th Court of Appeals dismissed the appeal as untimely. Bailey v. State, No. 14-01-00466-CR, (Tex.App.-Houston [14th Dist.] Aug. 23, 2001) (not designated for publication), 2001 WL 950939, 2001 Tex. App. LEXIS 5738. The court of appeals noted that because no motion for a new trial had been filed, appellant had 30 days after the sentence was imposed to file a notice of appeal. Id., citing Tex.R.App. P. 26.2(a)(1). Because the notice of appeal was filed more than 30 days after the original sentencing hearing (which was on February 12, 2001), the court held that the appeal was not timely perfected, and that the court of appeals therefore had no jurisdiction to address the merits of the appeal. Bailey, 2001 WL 950939, 2001 Tex.App. LEXIS 5738 (citing Slaton v. State, 981 S.W.2d 208, 210 (Tex.Crim.App.1998)).

Appellant filed a motion for rehearing and a motion to reinstate the appeal, both of which were overruled. This Court granted discretionary review. Appellant argues that his notice of appeal, filed within 30 days of the March 12 restitution order, was timely. He notes that the court of appeals’ holding would have the undesirable result of barring any appeal from an order issued more than 30 days after the original judgment. The State argues that the trial court’s order requiring appellant to pay restitution as a condition of probation is not, by itself, an appealable order. Therefore, the State argues, because appellant’s notice of appeal was filed more than 30 days after the original judgment and sentence, the court of appeals properly dismissed appellant’s appeal.

Our precedent has established that conditions of community supervision imposed at the time of the original sentencing may not be appealed at a revocation hearing, unless they were objected to when originally imposed. Hull v. State, 67 S.W.3d 215, 217 (Tex.Crim.App.2002). Furthermore, the court of appeals lacks jurisdiction to hear a challenge to a judgment of conviction brought more than 30 days after the imposition of community supervision, unless a motion for a new trial was timely filed. Manuel v. State, 994 S.W.2d 658, 660 (Tex.Crim.App.1999) citing Tex.Code Crim. PROC. Ann. art. 42.12, § 23(b)(Vernon Supp.l998)(defendant’s right to appeal conviction and punishment accrues when defendant is placed on community supervision). Those holdings are not determinative, however, of the issue in this case. At issue in this case is not whether the restitution order itself is an appealable order. Instead, the issue is at what time appellant’s full sentence was actually assessed and imposed. Was the sentencing complete: 1) at the initial sentencing hearing on February 12, 2001, or 2) at the time the trial court ordered restitution, on March 12, 2001? Due to the unique facts of this case, we find that the sentence was actually imposed at the restitution hearing, and we reverse the court of appeals.

Appellant cites two cases for the proposition that restitution orders are appeal-able at the time they are imposed. Cartwright v. State, 605 S.W.2d 287 (Tex.Crim.App.1980); Lemos v. State, 27 S.W.3d 42 (Tex.App.-San Antonio 2000, no pet.). Although we find for appellant, we disagree that either Lemos or Cartiuright are determinative in this case. Though both of those cases involved appeals from restitution orders imposed as conditions of probation, the restitution orders in those cases were entered at the time of the initial sentencing, not weeks later (as in appellant’s case). See Cartwright, 605 S.W.2d 287; Lemos, 27 S.W.3d 42.

The State cites several cases for the proposition that an order altering or modifying probationary conditions is not appealable. Basaldua v. State, 558 S.W.2d 2, 5 (Tex.Crim.App.1977); Dodson v. State, 988 S.W.2d 833 (Tex.App.-San Antonio 1999, no pet.); Jones v. State, 680 S.W.2d 580 (Tex.App.-Beaumont 1984, no pet.). Basaldua involved a challenge to the trial court’s refusal to modify a probation order that was entered at the time sentence was suspended in open court. No appeal was made at the time the conditions of probation were imposed, and the defendant filed his motion to modify the conditions 4 months later. The motion was denied after a hearing, and the defendant filed a notice of appeal to this Court a week after the denial of the motion. Basaldua, 558 S.W.2d at 2-4. We found:

... neither constitutional nor statutory authority which would confer jurisdiction on this court to hear an appeal from an order ... altering or modifying probationary conditions or an order, as in the instant case, refusing to alter or modify such conditions.

Id. at 6 (emphasis added). The Court held that it did not have jurisdiction to hear a direct appeal from a specific trial court ruling: an order denying a motion to modify existing conditions of probation which were entered at the time the sentence was originally suspended.

The operative word here is “modify.” This Court was careful to point out that the matter was not an appeal from an original order granting or revoking probation. Basaldua, 558 S.W.2d at 6-7. Such appeals are clearly authorized by Article 42.12 § 23(b) of the Texas Code of Criminal Procedure, and the timing for notice of appeal is governed by Rule 26.2 of the Texas Rules of Appellate Procedure. A motion to modify an existing condition of probation, on the other hand, could conceivably be brought at any time during the term of the probation. The denial of such a motion is not final, because under Article 42.12 § 11(a), “the judge of the court having jurisdiction of the case shall determine the conditions of community supervision and may, at any time, during the period of community supervision alter or modify the conditions.” Tex.Code CRIM. PROC. Aun. art. 42.12 § 11(a) (Vernon 2004). Appellant’s case, however, was not a modification; the sentence was not complete until March 12, 2001, the date of the restitution hearing. Thus, Basaldua is not controlling.

In Dodson, also cited by the State, the court of appeals held that it did not have jurisdiction to hear an appeal from the denial of a motion for shock probation. Dodson, 988 S.W.2d 833. The motion requesting shock probation in that case was timely filed, and a hearing was scheduled on the motion. Due to a series of scheduling problems and mis-communications, the hearing was scheduled 182 days after the original sentencing date. Since a trial court loses jurisdiction over the case 180 days after sentencing under Article 42.12 § 6(a), the trial judge found that his authority to conduct the hearing had ceased, and he denied the motion. Id. at 834. The court of appeals held that it also lacked jurisdiction, under Texas Rules of Appellate Procedure 26.2(a)(1), because more than 30 days had passed since the imposition of the sentence. Id. Dodson is not decisive for the same reasons that Basaldua is not decisive: In appellant’s case, no modification was being made to an existing order; rather, the sentencing was not complete until the restitution hearing.

In Jones, the other case cited by the State, the appellant was convicted of a theft offense. Jones, 680 S.W.2d 580. On May 10, 1982, the trial judge assessed the defendant’s punishment at 10 years probation, and included restitution, in an amount to be set after the defendant filed a financial statement. The defendant filed for bankruptcy on June 29, 1982. On August 9,1982, the District Judge signed a written order placing the defendant on probation and ordering the defendant to “[p]ay restitution in such sums and at such time as ordered by the Court.” Id. at 580. But at that time, the bankruptcy court had not come back with a decision. Finally, on December 22, 1982, the bankruptcy court discharged the defendant’s debts, which included amounts owed to the victims of the case. The hearing by the district court amending the probation judgment to include restitution was not held until July 29, 1983, many months after the original order placing the defendant on probation. The defendant then filed a “Motion to Set Aside Amended Conditions of Probation” less than 30 days after the restitution hearing, alleging that the order violated the bankruptcy court’s discharge order. Id. The trial court denied the motion, and the defendant appealed the denial to the court of appeals. Id. The court of appeals concluded that it was without jurisdiction to consider the appeal, again based on the Basaldua holding. Id. at 581, (citing Ba-saldua, 558 S.W.2d at 5). Jones gives little guidance to appellant’s situation, however, because the case concerned an amendment to a probation order, just as in Basaldua and Dodson. It can hardly be argued that the restitution hearing in Jones, held almost a year after the written community supervision order, was a continuation of the original sentencing. The community supervision order called for a yearly hearing “to consider the defendant’s ability to make restitution.” Id. at 581. And, the bankruptcy court proceedings complicated the matter because the proceeding was pending at the time of the written order by the district court. Due to these distinguishing factors, appellant’s situation cannot be compared to the defendant’s situation in Jones.

Basaldua, Dodson, and Jones stand for the proposition that no appeal lies from an order denying a motion to alter or modify existing conditions of community supervision. Here, unlike in the cases cited by the State, no restitution was ordered at the original sentencing, and the order imposing restitution was not an “alteration” or “modification” of the terms of community supervision. Article 42.037(e) of the Texas Code of Criminal Procedure states, in relevant part, that “[t]he imposition of the order [of restitution] may not unduly complicate or prolong the sentencing process.” Tex.Code CRIM. PROC. Ann. art. 42.037(e) (Vernon 2002). This statement, essentially including restitution in the “sentencing process,” implies that restitution is imposed as part of the original sentence, and that the sentence is not complete until restitution is imposed. Article 42.01(25) of the Texas Code of Criminal Procedure also prescribes that “the judgment” should reflect “... a statement of the amount of restitution ordered....” Tex.Code Crim. Proc. Ann. art. 42.01(25) (Vernon 2002). In appellant’s case, not only did he not know the amount of restitution that would be imposed-he did not know whether restitution would be imposed at all. There was nothing to appeal from until the date of the restitution order on March 12, 2001. Additionally, when the court reset the case for a hearing to decide the State’s motion for restitution, appellant specifically reserved the right to appeal any restitution that might be imposed. Clearly, the parties regarded the judgment as incomplete until the amount of restitution was set at the later hearing.

The case Arguijo v. State, 738 S.W.2d 367 (Tex.App.Corpus Christi 1987) supports our holding. In Arguijo, on October

3, 1986, the judge signed and entered judgment finding the defendant guilty and sentencing him to probation. On December 11, 1986, a hearing was held in which the defendant was given his probationary terms and conditions. The defendant filed a motion for new trial on that same day. In its decision, the court stated: “We conclude ... that the judgment was incomplete on October 3 due to the court’s failure to include probationary terms and conditions at that time. On December 11, when [defendant] was specifically informed of his duties, the judgment was then made whole, and [defendant’s] sentence was imposed for purposes of perfecting appeal.... ” 738 S.W.2d at 369.

Similarly, appellant was not ordered to make restitution until the March 12 hearing. Before that time, he could not have appealed a decision granting restitution because there was no restitution award to appeal. In the unique facts of this case, the parties considered the sentencing to be incomplete until the amount of restitution, if any, was set. Because of these facts, the day the sentence was “suspended in open court,” within the meaning of Rule 26.2(a)(1), was the day the last condition of probation was decided, and appellant’s filing of his appeal was timely.

Accordingly, the judgment of the court of appeals is vacated, and the cause remanded for a hearing to decide the merits of appellant’s challenge to the restitution order.

COCHRAN, J., filed a concurring opinion.

KELLER, P.J., filed a dissenting opinion.

WOMACK, J., filed a dissenting opinion in which KELLER, P.J., and HERVEY, J., joined.

KEASLER, J., filed a dissenting opinion.

COCHRAN, J.,

concurring.

I join the majority opinion. I write separately only to emphasize that restitution is an adjunct to punishment for a criminal offense and must be imposed, if at all, at the time of sentencing.

An order of restitution is akin to the assessment of court costs which compensates the government for the use of judicial resources. The purpose of restitution is not to punish the offender; fines and imprisonment do that. The purpose of restitution is to compensate the victim for his losses.

The principle of restitution is an integral part of virtually every formal system of criminal justice, of every culture and every time. It holds that, whatever else the sanctioning power of society does to punish its wrongdoers, it should also insure that the wrongdoer is required to the degree possible to restore the victim to his or her prior state of well-being.

Just as a criminal defendant must be informed of his punishment at the sentencing stage, so must he also be informed of the court costs and any restitution ordered. These are all aspects of, or adjuncts to, the sentence imposed. That sentence must be orally imposed in open court in the presence of the defendant. As we recently reiterated, “it is the pronouncement of sentence that is the appeal-able event, and the written sentence or order simply memorializes it and should comport therewith.”

The written judgment in a criminal case should contain a description of all of these items — the fine, any imprisonment, the court costs, any restitution, and any other special sentencing findings — so that the defendant, the State, the courts, victims, and any other interested person may always refer to the written memorialization of the oral sentence and know its contents. Article 42.01, § 1(25) explicitly states that, “in the event that the court orders restitution to be paid to the victim,” the judgment should contain “a statement of the amount of restitution ordered and ... the name of the victim and the permanent mailing address of the victim at the time of the judgment....”

Article 42.087 expressly deals with restitution and its imposition. It begins with the statement that:

In addition to any fine authorized by law, the court that sentences a defendant convicted of an offense may order the defendant to make restitution to any victim of the offense. If the court does not order restitution or orders partial restitution under this subsection, the court shall state on the record the reasons for not making the order or for the limited order.

If restitution is imposed in addition to a fine, and if the court must explain on the record why it declines to impose restitution to any victim of the offense, the plain meaning of the statute is that restitution is imposed at the same time as a fine, on the record, in the presence of the defendant and at the time of sentencing. Were there any doubt or ambiguity, section (e) of the same statute reads: “[t]he court shall impose an order of restitution that is as fair as possible to the victim. The imposition of the order may not unduly complicate or prolong the sentencing process.” The plain meaning of this sentence is that imposition of a restitution order is part of the sentencing process. As surely as night follows day, then, “the sentencing process” is not complete until the order of restitution, if any, is made.

Article 42.037, § (g) explains when a defendant is required to pay the restitution that a court has ordered. If the court makes no specific payment provisions, the defendant must pay all restitution “immediately,” ie., at the time of sentencing and at the same time that he pays any fine and court costs. However, as a practical matter, many, if not most, criminal defendants do not have the financial assets to pay restitution as a lump sum. Thus, article 42.037, § (g)(1) states that “[t]he court may require a defendant to make restitution under this article within a specified period or in specified installments” which may not be later than: the end of any probationary period; more than five years after the term of imprisonment has expired; or five years after the date of sentencing. This same article then states that if the defendant is placed on community supervision, the court shall order that the payment of any restitution order shall be a condition of community supervision.

So — there are two separate events here. One is the order of restitution — an order that is pronounced orally in open court as a part of the sentencing process. The other is when that oral pronouncement is reduced to a written judgment. Unless otherwise provided for, it must be paid immediately in one lump sum. However, if the defendant is placed on community supervision, the trial court shall add the payment of the restitution order to the written terms and conditions of community supervision. The trial court may, in those written terms and conditions, order restitution be paid, as a lump sum, within a specific time frame or it may order specific installment payments. The written conditions of community supervision specify how the restitution shall be made, and the trial judge may, “at any time, during the period of community supervision alter or modify” the terms and conditions by which the restitution shall be paid.

The trial court may not, however, alter or modify the terms and conditions of probation to add a restitution order which was never made orally in open court and in the defendant’s presence at the sentencing hearing. The amount of the fine, court costs, and restitution are set at the sentencing hearing, while the terms under which these items are paid are listed in the community supervision conditions. Those payment conditions may be altered or modified at any time. A defendant may not file a direct appeal to challenge these amendments to community supervision conditions, although he may challenge their constitutionality in a writ of habeas corpus.

With these comments, I join the Court’s opinion.

KELLER, P.J.,

dissenting.

Unless a motion for new trial is filed, a defendant must file notice of appeal “within 30 days of the day sentence is imposed or suspended in open court, or after the day the trial court enters an appealable order.” So, the time to file an appeal begins to run from one of three events: (1) imposition of sentence in open court, (2) suspension of sentence in open court, or (3) the entering of an appealable order. None of these events describe the trial court’s restitution order.

We have already held that the term “sentence” does not include the assessment of probation or the conditions of probation. “[I]mposition of a sentence is profoundly different from the granting of community supervision.” The text of Rule 26.2 recognizes the distinction by referring to sentence that is “imposed or suspended” — the suspension of sentence referring to the granting of probation. So the first category is not before us.

But neither is the second. The trial court granted probation on February 12, 2001, when appellant pled guilty. Sentence was “suspended in open court” at that time. The restitution order occurred 28 days later. Sentence was not suspended a second time by the restitution order; sentence had already been suspended. If, at the restitution hearing, the trial court had declined to impose restitution, neither appellant nor the State could claim that sentence had not been suspended at the initial hearing. And in that case, what date would start the appellate timetable?

It could be that the date sentence was suspended would retroactively become the triggering date for an appeal, but if the decision were made after thirty days, an appellant would by then have lost the ability to appeal his conviction.

Moreover, an order of restitution, as with any other condition of probation, does not suspend the imposition of sentence. The granting of probation does that, not the conditions attaching to that probation.

Third, the restitution order is not otherwise an appealable order. As the Court observes, we held in Basaldua v. State that orders modifying probationary conditions are not appealable.

I respectfully dissent.

WOMACK, J., dissenting, in which KELLER, P.J., and HERVEY, J., joined.

Today the Court decides that the time to file notice of appeal began when the trial court entered its order fixing the amount of restitution. It does so in a published opinion that will lead, I fear, to a significant number of attempts to appeal from post-sentencing orders that impose or modify conditions of probation.

The Court attempts to limit the damage to our criminal justice system by limiting its holding to the facts of this case. This may mean that other probationers will not succeed, as Bailey has, in having the merits of their appeals decided. But the damage will not come from having the merits decided. The damage will come from the appellate process itself, even though it leads to decisions by a court of appeals and this court that the appeal does not lie. Those decisions can be reached only after the appeals are heard. About two years will have passed, during which the trial court and the probation department will have no authority to supervise the person who has been found guilty (or subject to deferred-adjudication probation) because the judgment of probation is not final. More than 175,000 defendants are put on probation every year. Because of this decision, each of them will be able to appeal the modification of a condition of probation, thus avoiding the responsibility to obey the condition. The Court says that my “assertion is based on a misconception that our opinion applies to modifications of conditions of probation. It does not.” I respectfully point out that I have misconceived nothing. I repeat that every probationer whose conditions of probation are modified will be able to appeal to claim that his sentencing, like Bailey’s, was not complete until the modification was made. I do not understand how the Court is comforted by its prediction that each of these probationers will lose on the merits because each appeal will be held to be unlike Bailey’s. That is beside the point that I am making, which is that today’s decision makes the unsuccessful appeal possible, which makes the modified conditions unenforceable during the several years that will be consumed before the appeal ultimately fails. If there is a misconception about the effect of today’s decision, the misconception is not mine.

This is but the latest in a series of decisions by this Court that have the effect of thwarting the legislature’s decision in 1977 to have plea-bargainers placed in confinement or under probation supervision without appeal unless they met one of two conditions: they had the trial court’s permission to appeal or they were appealing from a matter raised by written motion filed before trial. The Court tore large holes in the 1977 statute by writing into its Rules of Appellate Procedure an unauthorized limitation that permitted every plea-bargaining defendant to appeal jurisdictional questions, and by making up out of whole cloth another unauthorized permission for every plea-bargaining defendant to appeal the voluntariness of the plea. Now, less than three months after mending these holes by amendment of Rule of Appellate Procedure 25.2, the Court tears •another hole in the rule against appeals.

Is this rip really necessary? In my view, it is not. The procedure that the district court followed in this case gave the appellant several opportunities to give timely notice of appeal.

The appellant was found guilty and sentenced to prison, and the execution of the sentence was suspended in open court.

He had 30 days in which to file a motion for new trial or a notice of appeal. The district court chose the 28th day of that period for a hearing to decide whether to add a condition of probation requiring him to make restitution to the victim of his crime. He told the court immediately that he might want to appeal if there were such a condition, so it is clear that he was contemplating filing notice of appeal. He had four weeks to get it ready. On day 28, the condition of which the appellant complains was imposed in open court. He did not file a notice of appeal that day, or the 29th day, or the 30th day. Nor did he file on any of those days a motion for new trial, which would have given him 60 more days in which to give notice of appeal.

But the clock still had not run out for him. After the 30th day passed, he had 15 more days in which to file the notice of appeal and a motion for extension of time. He did not. He waited to give notice of appeal until the 51st day after his sentence was suspended.

Bailey does not need a new hole in the law; there were several opportunities in the law of appeal that he passed up. Even now he could get an appeal by seeking the writ of habeas corpus on the ground that he was denied effective assistance of counsel when his lawyer passed up the chances to give timely notice of appeal. Rather than giving every probationer in Texas a “Get Out of Probation Free” card just to give this probationer an appeal in what the Court recognizes is a unique case, I would affirm the court of appeals and give the appellant the opportunity for habeas corpus. I respectfully dissent.

KEASLER, J.,

dissenting.

The Court concludes that Bailey’s judgment was not complete until the March 12th hearing and, therefore, that this case is not controlled by Basaldua v. State. I disagree.

Facts

The record includes a judgment which convicts Bailey of failure to stop and render assistance and sentences him to five years in prison, probated for 10 years. The judgment is signed by the judge and dated February 12, 2001. Attached to the judgment is a document entitled “Conditions of Community Supervision,” setting out 24 conditions. None of these conditions provide for restitution. This document is also signed by the judge and dated February 12, 2001.

The next document in the record is entitled “Conditions of Community Supervision 1st Amended.” Condition 12 requires Bailey to make restitution. This document is signed by the judge and dated March 12, 2001.

The docket sheet indicates that on February 12, 2001, Bailey “pleaded guilty,” that the court “found the defendant guilty” and “assessed the punishment,” and that imposition “of sentence [was] suspended and [the] Defendant [was] placed on Probation for ... 10 years.” The docket sheet reflects the case was “r/s,” which presumably means “reset,” for “3/12/01, Restitution Hearing.” The next entry is partially illegible due to a copying error. What is legible reflects that on some date (presumably March 12, 2001), there was a hearing with testimony and argument, and the court ordered Bailey to pay restitution.

It also states that Bailey, through his attorney, gave notice of appeal at that time.

In Bailey’s notice of appeal, he sought to appeal “the judgment and sentence in the above cause, in addition to the Court’s appealable orders concerning restitution and probationary conditions.”

Analysis

In Basaldua, the defendant was placed on probation in July of 1975. In November, the defendant filed a motion to modify the probation conditions which the trial court denied. The defendant appealed that ruling. We held that no appeal was allowed from the trial court’s order. We explained that we could find “neither constitutional nor statutory 'authority which would confer jurisdiction on this court to hear an appeal from an order ... altering or modifying probationary conditions or an order, as in the instant case, refusing to alter or modify such conditions.” We then proceeded to hear the defendant’s complaint, at his request, pursuant to our original habeas jurisdiction.

The facts of Basaldua are nearly identical to those in this case. The only distinguishing factor is that in this case Bailey appeals the judge’s order modifying his probation conditions, while in Basaldua the defendant appealed the judge’s ruling denying a motion to modify a probation condition. Nevertheless, this distinction is meaningless because both appeals are impermissible for the same reason, as we explained in Basaldua — there is no authority for appealing either an order modifying probation conditions or an order refusing to do so.

The majority finds Basaldua distinguishable because, according to the majority, the instant case does not involve a modification of probation. Instead, the majority contends, in this case the judgment was incomplete until the March 12th hearing. It bases this conclusion on its belief that a judgment is incomplete until restitution is ordered. This holding raises significant problems.

First, the majority’s authority for this conclusion is weak. It relies on Art. 42.037(e), which states that “[t]he imposition of the [restitution] order may not unduly complicate or prolong the sentencing process.” The Court says that this statement “essentially” includes restitution within sentencing and therefore “implies” that “restitution is imposed as part of the original sentence, and that the sentence is not complete until restitution is imposed.” That is quite a leap. Nothing in the text of the statute states that a judgment is “incomplete” until restitution is ordered. Instead, the statute seems to acknowledge that as a general rule, restitution will be part of the sentencing process. The statute does not foresee a case in which the restitution order is not entered until a later date.

The Court also relies on Art. 42.01, § 1(25), which says that the judgment “should” reflect the amount of restitution. But saying that the judgment should reflect that amount does not mean that this judgment did so. Regardless of the mandates of Art. 42.01, Bailey’s February 12th judgment did not contain restitution. Nothing in Art. 42.01 states that a judgment is incomplete until restitution is ordered.

Finally, the majority relies on Arguijo v. State. Of course, Arguijo is distinguishable because in that case, the judge failed to enter any conditions of probation at the time the defendant was placed on probation. The court of appeals held that the judgment was not complete until the later hearing when all the probation conditions were entered. This case is different because here, the trial court did impose conditions of probation — 24 of them — at the first hearing. The only thing the judge added at the later hearing was the restitution. This was an amendment of the previously ordered probation conditions.

The judge could have, and possibly even should have, waited until the March 12th hearing to enter the judgment against Bailey, but she did not do so. Instead, she entered a judgment of conviction on February 12th and set forth probation conditions. Later, she entered a “1st Amended” list of probation conditions. The very fact that the judge titled the list “1st Amended” demonstrates the parties’ understanding that the judgment was complete on February 12th but was amended on March 12th. If the judgment were incomplete on February 12th, there would have been nothing to “amend” on March 12th. And since the March 12th order “amended” the previous judgment, this case falls directly under the ambit of Ba-saldua, which prevents an appeal from such an order.

Indeed, even Bailey himself recognized this in his notice of appeal. He specifically sought to appeal the judgment “in addition to the court’s appealable order[ ] concerning restitution.” If the judgment were incomplete until March 12th, there would be no need to appeal both the restitution order and the judgment — an appeal of simply the judgment would have been sufficient.

Finally, under the Court’s rationale, anytime a judgment omits one of the requirements of Art. 42.01, it is incomplete. And since Art. 42.01, § 1(10), requires the judgment to set forth the conditions of probation, anytime a judge amends conditions of probation after sentencing, the judgment will be entered anew at that time. So no judgment is ever really complete, because we never know when a trial judge may amend the conditions of probation. This will wreak havoc on the law.

Perhaps most troubling about the Court’s opinion is that it is so unnecessary. The Court seems worried that Bailey will have no recourse if we do not allow his appeal, but this is just not true. His remedy is to file an application for a writ of habeas corpus attacking the probation condition. The remedy is most certainly not to create a body of law unsupported by statute or case law, as the majority has done in this case.

I dissent.

      . The relevant portion of Rule 26.2, governing time to perfect appeal, reads as follows:
      Criminal cases.
      (a) By the Defendant. The notice of appeal must be filed:
      (1) within 30 days after the day sentence is imposed or suspended in open court, or after the day the trial court enters an ap-pealable order; or
      (2) within 90 days after the day sentence is imposed or suspended in open court if the defendant timely files a motion for new trial.

      . After a trial court imposes a sentence of incarceration, and begins execution of the sentence (i.e., the defendant is actually incarcerated), the trial court may suspend further execution of the sentence and place the defendant on community supervision, or “shock probation,” as it is commonly called. Tex. Code Crim. Proc. Ann. art. 42.12 § 6(a) (Vernon 2004).

      . Tex.Code Crim. Proc. Ann. art. 42.12 § 6(a): For the purposes of this section, the jurisdiction of a court in which a sentence requiring imprisonment in the institutional division of the Texas Department of Criminal Justice is imposed by the judge of the court shall continue for 180 days from the date the execution of the sentence actually begins.

      . In Judge Womack’s dissent, he suggests that our holding today will allow each of "175,000 defendants” on probation "to appeal the modification of a condition of probation, thus avoiding the responsibility to obey the condition.” But his assertion is based on a misconception that our opinion applies to modifications of conditions of probation. It does not. The very premise of-this holding today is that the sentencing hearing was not yet complete and thus no modification occurred; in this case, the date restitution was awarded was the time sentencing was complete.

      . United States v. Webb, 30 F.3d 687, 689 (6th Cir.1994) (quoting S.Rep. No. 532, 97th Cong., 2d Sess. 30, reprinted in 1982 U.S.C.C.A.N. 2515, 2536).

        .See, e.g., United States v. Chaney, 964 F.2d 437, 451 (5th Cir.1992) ("Restitution under the VWPA [Victim and Witness Protection Act] is a criminal penalty and a component of the defendant's sentence”); United States v. Snider, 957 F.2d 703, 705 (9th Cir.1992) ("[b]ecause restitution under the VWPA is a criminal penalty, its imposition must comport with the substantive and procedural requirements of due process”).

      . TexCode Crim. Proc. art. 42.03, § 1(a) ("[except as provided in Article 42.14, sentence shall be pronounced in the defendant’s presence”); see Ex parte Madding, 70 S.W.3d 131, 135 (Tex.Crim.App.2002).

      . Ex parte Madding, 70 S.W.3d at 135 (quoting Coffey v. State, 979 S.W.2d 326, 328 n. 8 (Tex.Crim.App. 1998)).

      . TexCode Crim. Proc. art. 42.01 § 1 ("[t]he sentence served shall be based on the information contained in the judgment”).

      . Id. at art. 42.01, § 1(25).

      . Id. at art. 42.037, § (g)(3).

      . Id. at art. 42.037, § (g)(2).

      . Id. at art. 42.037, § (g)(1).

      . Id. at art. 42.12, § 11(a).

      . See Ex parte Madding, 70 S.W.3d at 136 ("[a] defendant has a due process legitimate expectation' that the sentence he heard orally pronounced in the courtroom is the same sentence that he will be required to serve”).

      . Sometimes a restitution order cannot include a specific dollar amount. It may instead contain a description of the victim’s loss whose precise monetary value cannot be determined, or the expense has not occurred, by the date of the sentencing. For example, under article 37.037(b)(1), the court may order a defendant charged with a property offense to pay an amount equal to or greater than “the value of the property on the date of sentencing less the value of any part that is returned on the date the property is returned.” (emphasis added). Similarly, the trial court may order a defendant charged with inflicting bodily injury to pay "an amount equal to the cost of necessary medical and related professional services and devices relating to physical, psychiatric, and psychological care,” for the victim, even though not all of those services may have been provided by the date of sentencing.

      . TEX. R. APP. P. 26.2(a)(1).

      . Speth v. State, 6 S.W.3d 530, 532 (Tex.Crim. App.1999).

      . Id.

      . 558 S.W.2d 2, 5 (Tex.Crim.App. 1977).

      .Article 11.072 of the Texas Code of Criminal Procedure also appears to be relevant to the issue before us and, in my opinion, argues against the Court’s interpretation.

      . See ante, at 16 ("In the unique facts of this case, the parties considered the sentencing to be incomplete until the amount of restitution, if any, was set”).

      . See Texas Department of Criminal Justice-Community Justice Assistance Division, Statistical Trends in Community Supervision 12 (2003) (in each of the State Fiscal Years 1993 through 2002, the number of offenders newly placed on probation has been in a range from 174,602 to 186,124).

      . Ante, at 16 n. 4.

      . See Act of June 10, 1977, 65th Leg., R.S., ch. 351, § 1, 1977 Tex. Gen. Laws 940, repealed in part by Act of June 14, 1985, 69th Leg., R.S., ch. 685, §§ 1 & 4, 1985 Tex. Gen Laws 2472 (authorizing the Court of Criminal Appeals to promulgate rules of procedure and conditionally repealing statutes).

      . See Tex.R.App. P. 40(b)(1) (1986) (limiting the restriction of appeal to "an appeal for a non-jurisdictional defect or error”).

      . See Flowers v. State, 935 S.W.2d 131 (Tex.Cr.App.1996), overruled by Cooper v. State, 45 S.W.3d 77 (Tex.Cr.App.2001).

      . See Tex.R.App. P. 21.4(a).

      . See id., R. 26.2.

      . See id., R. 26.2(a)(2).

        .See id., R. 26.3.

      . 558 S.W.2d 2 (Tex.Crim.App.1977).

      . Id., at 5.

      . Ibid.

      . Id. at 5-7.

      . Ante, op. at 15.

      . 738 S.W.2d 367 (Tex.App.-Corpus Christi 1987, no pet.).

      . Id. at 369.

      . See Ex parte Alakayi, 102 S.W.3d 426 (Tex. App.-Houston [14th Dist.] 2003, no pet.); Ex parte Renfro, 999 S.W.2d 557 (Tex.App.-Houston [14th Dist.] 1999, pet. ref'd).