Connolly v. State

• Decision Date: 13 January 1999
• Docket Number: No. 1637-97,1637-97
• Citation: 983 S.W.2d 738
• Parties: Charles David CONNOLLY, Appellant, v. The STATE of Texas.
• Court: Texas Court of Criminal Appeals

Page 738

983 S.W.2d 738

Charles David CONNOLLY, Appellant, v. The STATE of Texas.

No. 1637-97.

Court of Criminal Appeals of Texas En Banc.

Jan. 13, 1999.

James H. Kreimeyer, Belton, for appellant.

James T. Russell, Assist. DA, Belton, Matthew Paul, State's Atty., Austin, for the State.

Before the court en banc.

OPINION

MANSFIELD, J., delivered the opinion of the Court, in which McCormick, P.J., and Keller, Womack, and Keasler, JJ., joined.

Article 42.12, § 5(b), of the Texas Code of Criminal Procedure provides:

On violation of a condition of [deferred adjudication] community supervision [i.e., probation] imposed under Subsection (a) of this section, the defendant may be arrested and detained as provided in Section 21 of this article. The defendant is entitled to a hearing limited to the determination by the court of whether it proceeds with an adjudication of guilt on the original charge. No appeal may be taken from this determination....

The question presented in this case is whether a defendant whose deferred adjudication community supervision was revoked after his supervisory term had expired, may appeal from the trial court's finding of due diligence on the part of the State in apprehending him and having the revocation hearing.

The Relevant Facts

On October 3, 1990, a Bell County grand jury returned an indictment in the 264 th District Court charging appellant, Charles David Connolly, with felony theft. See Tex. Penal Code § 31.03(a). On November 8, 1990, appellant pled guilty to the charged offense pursuant to a plea bargain, and the District Court found that the evidence substantiated appellant's guilt. The court then deferred further proceedings without entering a finding of guilt and placed appellant on community supervision for five years. See Tex.Code Crim. Proc. art. 42.12, § 5(a).

On March 16, 1995, the State filed a motion to revoke appellant's community supervision and proceed to judgment, alleging that appellant had violated several of the conditions of his community supervision. At the State's request, the District Court issued a capias that same day. On November 1, 1995, the State filed an amended motion to revoke and proceed to judgment, and the District Court, at the State's request, issued a second capias. On March 19, 1996, more than four months after the expiration of appellant's supervisory term, a Bell County deputy sheriff executed the capias.

On February 6, 1997, the District Court held a hearing on the State's amended motion to revoke and proceed to judgment. At the start of the hearing, appellant, relying upon Langston v. State, 800 S.W.2d 553 (Tex.Crim.App.1990), moved to dismiss the State's amended motion, arguing that the State had failed to use due diligence to apprehend him and have the revocation hearing. ¹ The State disputed appellant's claim and offered the testimony of a Bell County probation officer in an attempt to prove both due diligence and appellant's violations of the conditions of his community supervision. At the conclusion of the hearing, the District Court took the matters under advisement.

On February 19, 1997, the District Court denied appellant's motion and granted the State's amended motion. The court found that appellant had violated the conditions of his community supervision as the State had alleged. The court then adjudged appellant guilty of the offense originally charged and sentenced him to imprisonment for two years.

On appeal to the Third Court of Appeals, appellant presented three points of error. In two of those points, he argued that the record contained insufficient evidence to support the District Court's finding of due diligence on the part of the State. The State responded with the argument that, under Article 42.12, § 5(b), appellant could not appeal from the District Court's finding of due diligence.

The Third Court of Appeals, relying upon Prior v. State, 795 S.W.2d 179 (Tex.Crim.App.1990), and Langston v. State, supra, sustained appellant's two points of error concerning sufficiency of the evidence to prove due diligence and did not reach his remaining point of error. Connolly v. State, 955 S.W.2d 411, 414 (Tex.App.--Austin 1997). The Court of Appeals rejected the State's argument thusly:

Article 42.12, section 5(b) states that no appeal may be taken from the trial court's determination to proceed to adjudication. The State believes that this statutory limitation on the right to appeal from the adjudication decision bars our consideration of appellant's contention that due diligence was not shown in this cause. The court of criminal appeals, however, clearly did consider the due diligence issue in Prior and Langston, and in the latter case reversed the conviction after concluding that due diligence was not shown. While the court did not explain in either opinion why consideration of the due diligence issue was not foreclosed by the statutory prohibition on appeal, the court's past actions are plainly inconsistent with the State's contention that the due diligence question is not appealable in a deferred adjudication case. As an intermediate appellate court, we are bound to follow the example of the court of criminal appeals.

Appellate review of the due diligence question is not necessarily inconsistent with the language of section 5(b). The "determination" from which no appeal may be taken is the determination to revoke probation and adjudicate guilt on the ground or grounds alleged in the State's motion. If the adjudication hearing is held after the probationary term has expired and if the defendant raises the due diligence issue, the trial court must decide the question before addressing the merits of the State's motion to revoke and adjudicate. If due diligence is not shown, the trial court should dismiss the State's motion without reaching the merits.

Id. at 415.

We granted the State's petition for discretionary review to determine whether the Court of Appeals had erred in rejecting the State's argument. See Tex.R.App. Proc. 66.3(d).

Analysis

We must determine whether Article 42.12, § 5(b), prohibited appellant from appealing from the District Court's finding of due diligence. In our interpretation of Article 42.12, § 5(b), we are guided by several precedents. ²

In Williams v. State, 592 S.W.2d 931 (Tex.Crim.App.1979), the trial court revoked Roger Williams' deferred adjudication probation and adjudicated him guilty of the original charge after finding that he had violated one of the conditions of his probation. On direct appeal to this Court, Williams argued that the trial court had abused its discretion in revoking his probation because the evidence adduced at the revocation hearing had been insufficient to prove the allegations in the State's motion to revoke. We held, however, that Williams' claim was not properly before us, because, under Article 42.12, § 3d (now, § 5(b)), "the trial court's decision to proceed with an adjudication of guilt is one of absolute discretion and [is] not reviewable." Id. at 932-933.

In Wright v. State, 592 S.W.2d 604, 606 (Tex.Crim.App.1980), given facts and argument essentially identical to those in Williams v. State, supra, we held again that, "under the terms of the ... statute, no appeal may be taken from the hearing in which the trial court determines to proceed with an adjudication of guilt on the original charge." Accord: Daniels v. State, 615 S.W.2d 771 (Tex.Crim.App.1981).

In Phynes v. State, 828 S.W.2d 1 (Tex.Crim.App.1992), the trial court revoked David Phynes' deferred adjudication probation and adjudicated him guilty of the original charge, because, according to the trial court, Phynes had violated the conditions of his probation. On direct appeal, Phynes argued that the trial court had erred in proceeding with the revocation hearing because his attorney had not been present. The Second Court of Appeals held that, under Article 42.12, § 5(b), Phynes could not appeal from the trial court's decision to adjudicate. We agreed with the reasoning of the Court of Appeals, holding that, even if Phynes' right to counsel had been violated, he could not use direct appeal as the vehicle with which to seek redress. Id. at 2.

Finally, in Olowosuko v. State, 826 S.W.2d 940 (Tex.Crim.App.1992), the trial court revoked Dantes Olowosuko's deferred adjudication probation and adjudicated him guilty of the original charge after finding that he had violated three conditions of his probation. On direct appeal, Olowosuko argued that some of the probation conditions had been vague and unenforceable, and that some of the allegations in the State's motion to revoke had failed to state a violation. The Fifth Court of Appeals dismissed all of appellant's points of error under the authority of Article 42.12, § 5(b). We upheld the decision of the Court of Appeals, explaining that we had "held from the beginning of deferred adjudication practice that the Legislature [had] meant what it said in Article 42.12, § 5(b)." Id. at 942.

In all these cases, we have tried to make clear that, given the plain meaning of Article 42.12, § 5(b), an appellant whose deferred adjudication probation has been revoked and who has been adjudicated guilty of the original charge, may not raise on appeal contentions of error in the adjudication of guilt process. See G. Dix & R. Dawson, Texas Criminal Practice and Procedure § 43.117 (1995). Moreover, since the Legislature has not overturned our interpretation of the statute after all these years, we are confident that our interpretation is correct. See State v. Hall, 829 S.W.2d 184, 187 (Tex.Crim.App.1992) (prolonged legislative silence following judicial interpretation of statute implies approval of interpretation).

We explained in Harris v. State, 843 S.W.2d 34, 35-36, n. 1 (Tex.Crim.App.1992), that the due diligence issue "is really in the nature of a plea in bar or defense" which must be raised by the defendant at the revocation hearing. Thus, in this case, ...