Dillehey v. State

• Decision Date: 19 June 1991
• Docket Number: No. 472-90,472-90
• Citation: 815 S.W.2d 623
• Parties: Clifton Robert DILLEHEY, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 623

815 S.W.2d 623

Clifton Robert DILLEHEY, Appellant, v. The STATE of Texas, Appellee.

No. 472-90.

Court of Criminal Appeals of Texas,

En Banc.

June 19, 1991.

Rehearing Denied Sept. 18, 1991.

Tim K. Banner, Hal E. Turley, Dallas, for appellant.

John Vance, Dist. Atty., and Yolanda M. Joosten and Gregg Long, Asst. Dist. Attys., Dallas, Robert Huttash, State's Atty., Austin, for the State.

Before the court en banc.

OPINION ON APPELLANT'S PETITION FOR DISCRETIONARY REVIEW

MILLER, Judge.

In this cause, appellant plead guilty to possession of cocaine and was placed on deferred adjudication pursuant to a plea bargain. The trial court placed appellant on probation for three years and fined appellant five hundred dollars. Art. 42.12, Sec. 3d(a), V.A.C.C.P. (see now Sec. 5(a)). Appellant requested and received permission from the trial court to appeal the trial court's order overruling his motion to suppress evidence (the cocaine). The Court of Appeals dismissed the appeal citing lack of jurisdiction to address an appeal from a deferred adjudication. Dillehey v. State, 788 S.W.2d 154 (Tex.App.--Dallas 1990).

The issue upon which we granted appellant's petition is whether or not a defendant can appeal from a deferred adjudication Nothing in this article is to interfere with the defendant's right to appeal under the procedures of Article 44.02 of this code. The defendant's right to appeal under 44.02 may be prosecuted by the defendant where the punishment assessed is in accordance with subsection (a), Section 3d, Article 42.12 of this code, as well as any other punishment assessed in compliance with art. 44.02 of this code.[ ¹

probation under the provisions of the article of the Texas Code of Criminal Procedure that authorizes the State's, not the defendant's, right to appeal. Specifically appellant, in an articulate, well reasoned brief seeks relief under the provisions of Article 44.01(j), V.A.C.C.P., which states:

Upon initial examination of this sentence, the strict construction utilized by the court of appeals appears to be a fairly logical technical interpretation of the law, particularly regarding the interpretation of the commonplace legal phrase "assessment of punishment", as used in Hernandez v. State, 705 S.W.2d 700 (Tex.Cr.App.1986).

However, research into the legislative intent behind paragraph (j) leads us to a completely different result than that reached in the court of appeals. ² The technical interpretation of paragraph (j), particularly the interpretation of the phrase "assessment of 'punishment' " advocated by the court of appeals, was simply not what the author of the bill or the author of paragraph (j), or for that matter, the legislature had in mind. We clearly see the intent of the legislature from the following excerpts from the Senate Floor discussions on the constitutional amendment (SJR 34, 1987) allowing the State's right to appeal and the corresponding enabling legislation (specifically, paragraph (j)) (SB 762, 1987). The discussions are between Senator Montford, author of the bill, and Senator Washington, author of paragraph (j).

SJR 34, SECOND READING, SENATE FLOOR

WASHINGTON So other than that situation [a not guilty verdict] the State has an unlimited right of appeal?

MONTFORD Yes.

WASHINGTON All right. Now the defendant has the right to appeal only after conviction, is that right?

MONTFORD Yes.

WASHINGTON So the defendant has to be at risk before he or she has the right to appeal and complain to a higher court with respect to the manner in which the law has been interpreted by the District Court or the County Court at Law?

MONTFORD Yes.

WASHINGTON And this would give a right to the State that the defendant doesn't have.

MONTFORD That right is absolute in terms of the defendant. No, I don't think so. I think the defendant unequivocably has the right of appeal. Period. Unless he or she is found not guilty.

WASHINGTON Unless he received deferred adjudication.

MONTFORD That's another instance and I indicated to you I would be willing to accept an amendment for clarity on the issue of deferred adjudication.

WASHINGTON So the law is now that the defendant has to be at risk, that is, the defendant has to be convicted before he/she can complain of any procedural or substantive error committed by the trial court, is that right?

MONTFORD Yes.

SB 762, SECOND READING, SENATE FLOOR Amendment (paragraph (j)), authored by Sen. Washington, is introduced and read.

WASHINGTON Thank you, Mr. President. Mr. President, Members of the Senate. This amendment is acceptable to the author. It merely provides for the situation which I believe is a hiatus in the law right now. A person can appeal, as Senator Montford and I were discussing, if a person enters a plea of guilty or no contest and receives probation, and there has been a legitimate pretrial issue where they've discussed, where the court has ruled on the admissibility of some evidence or some other matter that either or both parties feels may have been dispositive of the case, this would allow the person to appeal from a deferred adjudication probation the same as they can appeal from a regular probation. The courts have interpreted provisions of the law now as to now allow a person to be able to appeal on a deferred adjudication where they can appeal from a regular probation and I think the amendment is acceptable.

MONTFORD Amendment is acceptable, Mr. President.

(Emphasis added).

The amendment was adopted unanimously viva voce vote (viva voce--"With the living voice....signifies voting by speech or outcry", Blacks Law Dictionary, West Publishing Co.). All senators were present and answered "yea" to the roll vote on paragraph (j) except for Sen. Truan, who was absent excused. They were aware of, because they were told face to face on the Senate floor, the specific purpose of the addition of Art. 44.01(j). SB 762 passed to engrossment as amended. The 3-day rule was suspended, 3rd reading of SB 762 took place--with no discussion, Bill 762 passed. ³

The fundamental rule governing the construction of a statute is to ascertain the intent of the legislature in enacting the statute. Patterson v. State, 769 S.W.2d 938, 941 (Tex.Cr.App.1989) (most common rule of statutory construction is for judiciary to attempt to effectuate intent of legislature). Once determined, the intent of the legislature must be enforced by the courts even though it may not be entirely consistent with the strict letter of the statute. See State v. Terrell, 588 S.W.2d 784 (Tex.1979), Ex Parte Groves, 571 S.W.2d 888 (Tex.Cr.App.1978).

We have long honored, as binding evidence of legislative intent, bill analyses and study group reports and legislative council reports and floor debate. See Studer v. State, 799 S.W.2d 263 (Tex.Cr.App.1990). The intent of the legislature when enacting 44.01(j) is clear. The statute is susceptible to a construction that would effectuate the clear intent of the legislature. Where intent is clear, there is no room for further construction. Patterson, supra. ⁴ The legislature It is inherent in the duty of this Court to adhere to interpretations of the law consistent with the intent of the legislature. The court of appeals however, invoked the familiar "special controls over general" principle of statutory construction. See Alejos v. State, 555 S.W.2d 444 (Tex.Cr.App.1977) and Tex.Gov't.Code Ann. § 311.026 (Special Prevails Over General). Even in their analysis we believe they misapplied the doctrine. Article 42.12 is neither in conflict with or out of harmony with Art. 44.01(j). Put another way, there is nothing in Art. 42.12 for Art. 44.01(j) to "control", since Art. 42.12 does not by any of its wording prohibit or even deal with an appeal after one receives deferred adjudication. Article 42.12 deals with probation and 44.01(j) with appeals. If anything, Art. 44.01 is the special statute when it comes to what can be appealed, and Art. 42.12 is the special statute concerning probation. Thus neither Alejos nor § 311.026, supra, is implicated.

without a single objection, nor any discussion on paragraph (j), clearly spelled out that it intended for defendants placed on deferred adjudication probation to be allowed, under Article 44.01(j), V.A.C.C.P., to immediately appeal rulings on pre-trial motions in compliance with Article 44.02. ⁵

As previously stated, there can be no clearer declaration of legislative intent than we have in this case. Even without it though, Tex.Gov't.Code Ann. § 311.021 makes us presume that the legislature intended that the entirety of 44.01, including (j), be given effect. ⁶

In sum, it was not through legislative enactment but through this Court's interpretation of the interplay between Articles 42.12 and 42.13 that the prohibition against appealing in deferred adjudication arose. McDougal v. State, 610 S.W.2d 509 (Tex.Cr.App.1981). This was the "hiatus in the law" Senator Washington and the full Senate and the House and the Governor did away with in 1987. Today we acknowledge that historical fact and hold that a defendant may appeal under 44.02 even though he has received deferred adjudication probation and has not been adjudicated guilty. ⁷

The judgement dismissing the appellant's appeal is reversed, and this case is remanded to that court for proceedings not inconsistent with this opinion.

APPENDIX A

COMPILING TEXAS LEGISLATIVE HISTORY

at the Legislative Reference Library

State Capitol--Austin, Texas

Unlike U.S. legislation, Texas legislative history is not written and must be compiled by the researcher. The following steps should be taken by the researcher;

1. Determine the bill number and the session which enacted the bill.

2. Examine the original bill file.

3. Listen to the tape recordings of the public hearings of committee meetings and debate in the House and Senate.

4. Examine other documents which may be helpful.

Please note that the numbering of the House and Senate bills...