Fielding v. State

Decision Date10 September 1986
Docket NumberNos. 05-85-01019-C,05-85-01020-CR,s. 05-85-01019-C
Citation719 S.W.2d 361
PartiesB. Donald FIELDING, Appellant, v. The STATE of Texas, Appellee.
CourtTexas Court of Appeals

Shirley Baccus-Lobel, William M. Ravkind, Ronald L. Goranson, Dallas, for appellant.

Kathi Alyce Drew, Dallas, for appellee.

Before GUITTARD, C.J., and McCRAW and STEWART, JJ.

STEWART, Justice.

B. Donald Fielding appeals from two convictions for possession of a controlled substance with intent to deliver. Appellant contends that revocation of his unadjudicated "probation" violated due process of law and double jeopardy principles, that the change in status from deferred adjudication to 60 years' imprisonment violates the constitutional prohibition against cruel and unusual punishment, that the trial court erred in refusing to hold a hearing on appellant's motion for new trial, and that the sentencing process and sentence imposed violated due process. These contentions are without merit. We affirm the trial court's judgment.

I. Facts

On January 9, 1985, appellant entered his plea of guilty. After hearing evidence substantiating appellant's guilt, the trial court deferred further proceedings without an adjudication of guilt and placed appellant on ten years' "probation". See TEX.CODE CRIM.PROC.ANN. art. 42.12, § 3d (Vernon Supp.1986). One condition of appellant's deferred adjudication was that he "(a) [c]ommit no offense against the laws of this or any other state or the United States."

On May 24, 1985, the State filed its motion to proceed with adjudication of guilt. The motion alleged that appellant had violated condition (a) by driving a motor vehicle on a public street when his driver's license was suspended. On May 31, 1985, a hearing was held on the State's motion. At the close of that hearing the trial court accepted appellant's plea of true to the allegations in the State's motion, found that the allegations were true, granted the State's motion, and proceeded with the adjudication of guilt. The trial court accepted appellant's plea of guilty entered January 9, 1985, found appellant guilty, and assessed punishment at 60 years in the Texas Department of Corrections on each offense.

II. Decision to Proceed with Adjudication

In appellant's first five grounds of error, he alleges constitutional violations connected with the trial court's decision to proceed with adjudication of guilt. A defendant cannot appeal the trial court's determination to proceed with adjudication of guilt. TEX.CODE CRIM.PROC.ANN. art. 42.12, § 3d (Vernon Supp.1986). This decision is within the absolute discretion of the trial court and is not subject to appellate review. Homan v. Hughes, 708 S.W.2d 449, 451 (Tex.Crim.App.1986); Williams v. State, 592 S.W.2d 931, 932-33 (Tex.Crim.App.1979). Thus, in ruling on a preliminary motion, our court struck appellant's first five grounds of error. See Contreras v. State, 645 S.W.2d 298 (Tex.Crim.App.1983).

III. Cruel and Unusual Punishment

In his sixth ground of error, appellant contends that his change in status from deferred adjudication to sixty years' incarceration violated the constitutional ban against cruel and unusual punishment. Appellant argues that he has a substantial liberty interest granted by the trial court when it deferred adjudication; that he substantially complied with all the conditions of his deferred adjudication; that his only violations of those conditions were minor traffic offenses unrelated to the offenses with which he was charged; and that, although a lengthy sentence of imprisonment could originally have been imposed, the State is bound by its determination that its best interests were adequately protected by deferred adjudication unless there are sufficient grounds for a redetermination and reevaluation of the decision to impose probation. Appellant further maintains that the justification for the imposition of lengthy prison terms was alleged licensing offenses and that, therefore, the sentences were grossly disproportionate to the minor offenses, thus constituting cruel and unusual punishment.

We note initially that the sixty-year sentences are not punishment for driving with a suspended driver's license but for the unlawful possession of cocaine with intent to deliver. In essence, appellant's arguments amount to a contention that the trial court abused its discretion in determining to proceed with adjudication of guilt because there was insufficient evidence to support that determination. This same contention was overruled in Williams v. State, 592 S.W.2d 931 (Tex.Crim.App.1979), which held that the decision to proceed to adjudication is within the absolute discretion of the trial court and is not subject to appellate review. Contreras v. State, 645 S.W.2d 298 (Tex.Crim.App.1983). Furthermore, the punishment assessed was within the limits prescribed by statute. See TEX.REV.CIV.STAT.ANN. art. 4476-15, § 4.03(d) (Vernon Supp.1986). Therefore, the punishment, is not prohibited as cruel and unusual. McNew v. State, 608 S.W.2d 166, 174 (Tex.Crim.App.1978); Samuel v. State, 477 S.W.2d 611, 614-15 (Tex.Crim.App.1972). Appellant's sixth ground of error is overruled.

IV. Motion For New Trial

In his seventh ground of error appellant contends that the trial court erred in failing to hold a hearing on appellant's motion for new trial. Granting or denying motions for new trial rests within the discretion of the trial court, and appellate courts will ordinarily not reverse that decision unless the trial court has abused its discretion. This rule also applies where the trial court denies the motion without an evidentiary hearing. McIntire v. State, 698 S.W.2d 652, 660 (Tex.Crim.App.1985); Appleman v. State, 531 S.W.2d 806, 810 (Tex.Crim.App.1976). However, a hearing on a motion for new trial is mandated when an affidavit attacking the verdict on any matter outside the record itself is sufficient to give the trial court notice that reasonable grounds exist for disturbing its verdict. McIntire, 698 S.W.2d at 658, 660 (Tex.Crim.App.1985).

In this case, the only extrinsic matter raised by affidavit concerns appellant's reason for violating the conditions of his deferred adjudication. At the hearing on proceeding with adjudication, Fielding presented evidence showing that he had been unaware that his driver's license was suspended. The affidavit attached to Fielding's motion for new trial was executed by the attorney who represented Fielding for traffic violations. It gave the background facts concerning Fielding's suspended license "which were known to the trial court, but were not part of the record", as stated in the motion for new trial. This affidavit simply corroborated Fielding's testimony at the adjudication hearing. Fielding's motion for new trial presented no issues that required proof to be developed outside the record. Under these circumstances, the trial court did not err in denying Fielding a hearing on his motion. Darrington v. State, 623 S.W.2d 414, 416 (Tex.Crim.App.1981). Appellant's seventh ground of error is overruled.

V. Due Process

Finally, appellant contends that the sentencing process and sentence imposed in this case violate due process. Appellant argues that he substantially complied with the terms of his "probation" and that the trial court determined his sentence before hearing all the evidence. We initially observe that, to the extent that appellant's contention attacks the determination to proceed with adjudication of guilt, it is not reviewable by this court. Contreras, 645 S.W.2d at 298.

Appellant argues that the sentence imposed was illegal because the court's only option after adjudication of guilt was to reinstate appellant's "probation". He relies on the Supreme Court decisions in Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972) (parolee), and Gagnon v. Scarpelli, 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973) (probationer), holding that one who has substantially complied with the terms and conditions of probation is entitled as a matter of law to retain his liberty. Both of these cases concern probation after conviction and, therefore, are not applicable to a deferred adjudication proceeding. Deferred adjudication vests no rights in the defendant; it is a product of the court's leniency. Indeed, there is no appellate review from an order deferring adjudication. If a defendant is dissatisfied with such deferral, his proper remedy is to move for final adjudication under section 3d(a) of article 42.12. McDougal v. State, 610 S.W.2d 509 (Tex.Crim.App.1981).

There is no provision in the statutes for reinstatement of unadjudicated "probation" after guilt has been adjudicated. To the contrary, after an adjudication of guilt, assessment of punishment proceeds "as if the adjudication of guilt has not been deferred." TEX.CODE CRIM.PROC.ANN. art. 42.12, § 3d(b) (Vernon Supp.1986).

Further, the deferred adjudication statute does not enunciate a "substantial compliance" standard. Violating one condition of deferred adjudication authorizes an adjudication of guilt on the original offense. See Hunter v. State, 640 S.W.2d 656, 658 (Tex.App.--El Paso 1982, pet. ref'd). Indeed, appellant's plea of "true" is, standing alone, sufficient to justify the revocation. Pierce v. State, 636 S.W.2d 734, 736 (Tex.App.--Corpus Christi 1982, no pet.).

When it deferred adjudication in January, the trial court made the following statement:

When these things are adjudicated, if they are, you're not getting any ten years, you're not getting any twenty years, you're getting a substantial sentence. And I normally don't do this, but I'm laying my cards on the table, and if you violate the conditions of your probation, you're talking about 60 and up; is that clear?

Later, in May, when the trial court proceeded with adjudication and assessed punishment at 60 years, he remarked, "I believe I told you when you came before me...

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