Ex parte Hernandez, 69320

• Decision Date: 05 March 1986
• Docket Number: No. 69320,69320
• Citation: 705 S.W.2d 700
• Parties: Ex parte Gabrino Trevino HERNANDEZ.
• Court: Texas Court of Criminal Appeals

Page 700

705 S.W.2d 700

Ex parte Gabrino Trevino HERNANDEZ.

No. 69320.

Court of Criminal Appeals of Texas En Banc.

March 5, 1986.

Don Higginbotham, Georgetown, for appellant.

Edward J. Walsh, Dist. Atty., Georgetown, Robert Huttash, State's Atty., Austin, for the State.

Before the court en banc.

OPINION

CLINTON, Judge.

This is a postconviction habeas corpus proceeding pursuant to Article 11.07, V.A.C.C.P. Facts of the matter are undisputed. The sole issue is one of law.

In April 1982 applicant pleaded guilty to a charge of indecency with a child, and in accordance with Article 42.12, § 3d(a), V.A.C.C.P., the trial court found evidence substantiated guilt, deferred further proceedings without entering an adjudication of guilt and placed applicant on "probation." In May 1983 the State moved to set aside the deferred adjudication order, alleging three violations of a condition of probation. Represented by court appointed counsel at a hearing for the trial court to determine whether to proceed with an adjudication of guilt on the original charge, applicant pleaded "not true," but after hearing evidence and argument of counsel the court set aside the deferred adjudication order and proceeded to adjudicate applicant guilty of the original charge. The trial court assessed punishment at confinement for fifteen years and one day and imposed sentence accordingly.

Applicant gave notice of appeal and filed an affidavit of indigency. He alleges that "on several occasions" he has requested a transcription of the notes of the court reporter taken at the initial plea proceeding and at the adjudication proceeding. The trial judge refused to appoint appellate counsel and to order an appellate record prepared. Indeed, it is alleged that though notice of appeal was "duly given" the record has not been made to reflect that fact, as prescribed by Article 44.08, § (d).

This application for writ of habeas corpus followed. Implicitly at least, applicant contends that he is being denied his right of appeal vouchsafed by Article 44.02, V.A.C.C.P., and thus denied due process, Fifth and Fourteenth Amendments, and due course of law, Article I, § 19, Constitution of the State of Texas. Conformably with Article 11.07, § 2(c), the convicting court made appropriate findings. Among others there is a finding of fact and a significant conclusion of law, viz:

"Further, the original plea of guilty was the result of a plea agreement, the punishment assessed at that time did not exceed the punishment recommended by the prosecutor and agreed to by the defendant and his attorney, and the trial court has not given permission to appeal that cause. Therefore, pursuant to Article 26.13(a)(3), applicant has no right to appeal that cause." ¹

The convicting court recommended that relief be denied, in part upon that conclusion. ² We turn to address that issue of law.

It is now axiomatic that this Court is not bound by findings, conclusions or recommendations from a convicting court in reaching a decision on a postconviction application for habeas corpus. Ex parte Bates, 640 S.W.2d 894, 898 (Tex.Cr.App.1982) ; see also Article 11.07, § 3. In this instance we accept the finding of fact, and though we must reject the legal conclusion we will follow the recommendation, albeit for different reasons.

In Article 42.12, V.A.C.C.P., as it then existed and as recently revised by Acts 1985, 69th Leg., Ch. 427, p. 2895, § 1, effective September 1, 1985, 9 Vernon's Texas Session Law Service (1985) 2895, 2901, § 3d(b), carefully delineates procedural rights granted to a defendant who is charged with violating a condition of "probation" required by the court in a deferred adjudication proceeding, viz:

"The defendant is entitled to a hearing limited to a 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 not been deferred."

An accused has no right of appeal from an order deferring adjudication of guilt. McDougal v. State, 610 S.W.2d 509 (Tex.Cr.App.1981). Whether a defendant is entitled to appeal after adjudication of guilt, judgment and "sentencing" [as defined by Article 44.08, (c) ] following determination by a trial court to proceed with an adjudication of guilt depends mainly on the setting and nature of any alleged error he would raise. Articles 42.12, § 3d(b), 37.07, § 3(a) and (d), and 44.02, V.A.C.C.P. ³

For instance, settled is the proposition that one may not appeal from a determination to proceed with an adjudication of guilt under Article 42.12, § 3d(b) or from an adjudication of guilt under Article 4476-15, § 4.12(b), V.A.C.S. Williams v. State, 592 S.W.2d 931, 932 (Tex.Cr.App.1979); Wright v. State, 592 S.W.2d 604, 606 (Tex.Cr.App.1980); McIntyre v. State, supra, at 417-418. Conceptually alike, their common rationale was explicated in McIntyre, viz:

"But the true objective of the conditional discharge [and deferred adjudication] is to divert the accused from the rest of the gauntlet run of the criminal justice system and the function of the trial court is to enter into a clearly understood pact with the accused that will induce and persuade him to follow the diversionary road.... Meanwhile, a judgment of guilt is not entered, punishment, as such, is not assessed and, of course, sentence is not imposed or suspended. In essence, what has happened is that the movement of the course of developments in a criminal action has been temporarily stilled and the accused has been permitted an opportunity to demonstrate his capacity for prescribed good behavior during a specified period. If he succeeds, the movement is reversed and disappears; however, should he fail, the movement in a criminal action continues with the normal incidents of trial." ⁴

Ibid. Accord: Williams v. State, supra, n. 1 at 932; see also Wright v. State, supra. That rationale explains consequences of interplay between Article 42.12, § 3d, Article 37.07, § 3(a) and (d) and Article 44.02.

Procedures for assessing punishment are prescribed by Section 3 of Article 37.07. They are applicable only "after a finding of guilt." An order finding that evidence substantiates guilt and that "the best interest of society and the defendant will be served," deferring adjudication of guilt and providing conditions of "probation," does not assess punishment within the meaning of Article 37.07, § 3(a) and (d), for "there has been no conviction," Ex parte Schillings, 641 S.W.2d 538, 540 (Tex.Cr.App.1982); "no sentence [sic] is assessed and imposition of sentence is not suspended," McNew v. State, 608 S.W.2d 166, 172, 176-178 (Tex.Cr.App.1978, 1980). Therefore, a condition of "probation" purporting to require that accused be incarcerated is unreasonable because it "stems from an offense for which there has been no conviction," Ex parte Schillings, supra, at 540.

For the same reasons, that upon agreement of the...