Daniels v. State, 66842

• Decision Date: 20 May 1981
• Docket Number: No. 3,No. 66842,66842,3
• Citation: 615 S.W.2d 771
• Parties: Eddie Ray DANIELS, Appellant, v. The STATE of Texas, Appellee
• Court: Texas Court of Criminal Appeals

Page 771

615 S.W.2d 771

Eddie Ray DANIELS, Appellant, v. The STATE of Texas, Appellee.

No. 66842.

Court of Criminal Appeals of Texas, Panel No. 3.

May 20, 1981.

Douglas H. Parks, Dallas, for appellant.

Henry Wade, Dist. Atty., William D. Sheetz, and C. Wayne Huff, Asst. Dist. Attys., Dallas, Robert Huttash, State's Atty., Austin, for the State.

Before TOM G. DAVIS, McCORMICK and TEAGUE, JJ.

OPINION

TOM G. DAVIS, Judge.

Appeal is taken from an order revoking probation.

On April 1, 1977, appellant pled guilty to a charge of burglary of a building. After hearing the evidence, and finding that it substantiated appellant's guilt, the court deferred further proceedings without entering an adjudication of guilt, and placed appellant on probation for a period of four years.

On April 18, 1980, the State filed a motion to proceed with an adjudication of guilt. The trial court then revoked appellant's probation and entered an adjudication of guilt after finding that he had violated the conditions of his probation by committing an offense, failing to report to his probation officer, failing to pay the probation fee, and by failing to make restitution. On July 1, 1980, appellant's punishment was assessed at four years.

In this purported appeal, appellant contends the court abused its discretion in revoking his probation in that the evidence is insufficient to support the court's order finding the above violations.

Art. 42.12, Sec. 3d(b), supra, provides in part:

"On violation of a condition of probation imposed under Subsection (a) of this section, the defendant may be arrested and detained as provided in Section 8 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...."

In Williams v. State, Tex.Cr.App., 592 S.W.2d 931, we held that under the terms of the above 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. See Wright v. State, Tex.Cr.App., 592 S.W.2d 604. Accordingly, appellant's contention is not reviewable.

The judgment is affirmed.

TEAGUE, Judge, dissenting.

We gather together today to once again look at that wondrous and mystifying creature called, among the bench and bar of this State, "deferred adjudication." To appreciate this comment, attention is directed to the following decisions of this Court. McDougal v. State, 610 S.W.2d 509 (1981); Hardy v. State, 610 S.W.2d 511 (1981); Wright v. State, 592 S.W.2d 604 (1980); Laday v. State, 594 S.W.2d 100 (1980); Shields v. State, 608 S.W.2d 924 (1980); McNew v. State, 608 S.W.2d 166 (1980); and Williams v. State, 592 S.W.2d 931 (1979).

By the above cases, all of which involve "deferred adjudication," it appears that only members of the Dallas District Attorney's office understand what our legislature has said but, like so many other persons, have failed to grasp all of the statute's import.

Art. 42.12, Sec. 3d, V.A.T.C.C.P., hereinafter cited as C.C.P., provides in part:

(a) When in its opinion the best interest of society and the defendant will be served, the court may, after receiving a plea of guilty or plea of nolo contendere, hearing the evidence, and finding that it substantiates the defendant's guilt, defer further proceedings without entering an adjudication of guilt, and place the defendant on probation on reasonable terms and conditions as the court may require and for a period as the court may prescribe not to exceed 10 years. However, upon written motion of the defendant requesting final adjudication filed within 30 days after entering such plea and the deferment of adjudication, the court shall proceed to final adjudication as in all other cases.

(b) On violation of a condition of probation imposed under Subsection (a) of this section, the defendant may be arrested and detained as provided in Section 8 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. After an adjudication of guilt, all proceedings, including assessment of punishment, pronouncement of sentence, granting of probation, and defendant's appeal continue as if the adjudication of guilt had been deferred. (emphasis added)

The record reflects that appellant was originally charged by indictment with the offense of burglary of a building, a felony of the second degree. See V.T.C.A. Penal Code, Sec. 30.02. Appellant thereafter appeared in court and entered a plea of guilty. An order "deferring further proceedings without entering an adjudication of guilt" was then entered. Appellant was placed on "regular" probation for a term of four years. Thereafter, the State filed a motion to proceed with an adjudication of guilt, later amending same, alleging in both motions that appellant violated the probation in many ways. A hearing was held and the trial court entered judgment setting aside the order deferring adjudication, and entered a finding that "the said Defendant is guilty of the offense of Burglary of a building, a 2nd degree felony," and assessed his punishment at four years' confinement in the Texas Department of Corrections. Appellant was thereafter sentenced and timely gave notice of appeal to this Court.

If an accused enters a plea of guilty or nolo contendere to a criminal offense for which the trial court may grant adult probation, and the trial court finds the evidence substantiates the defendant's guilt, and if the trial court believes the best interest of society and of the defendant will be served, it may defer further proceedings and place the defendant on probation on reasonable terms and conditions as the court may require and for a period as the court may prescribe not to exceed 10 years. But, the trial court does not enter a judgment of guilt in that instance.

There is no appeal from that decision to this Court. However, a defendant is not without a remedy in law for if he is dissatisfied with the trial court deferring further proceedings and placing him on deferred adjudication probation, then the statute provides the defendant may, by filing written notice within 30 days after the entry of the plea and the deferment of adjudication, request final adjudication, and have his guilt adjudicated. Should this occur, and the trial court adjudicates the defendant's guilt, then there should be a punishment hearing pursuant to Art. 37.07, C.C.P., Cf. Basaldua v. State, Tex.Cr.App., 481 S.W.2d 851, 853 (1972), and, after assessment of punishment and sentencing, if necessary, the defendant would have the right to appeal to this Court; whether he is assessed a term of years in the penitentiary or is granted another probation.

If the defendant does not timely move to have his guilt adjudicated and the trial court subsequently proceeds to adjudicate the guilt of the defendant pursuant to motion of the State then, after the hearing and adjudication of guilt, there should be a punishment hearing, pursuant to Art. 37.07, C.C.P., Cf. Basaldua v. State, id., and thereafter punishment should be assessed by the trial court and the defendant sentenced, if necessary. The defendant would then have the legal right to appeal to this...