McDougal v. State, 66249

• Decision Date: 21 January 1981
• Docket Number: No. 66249,66249
• Citation: 610 S.W.2d 509
• Parties: Vernon McDOUGAL, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 509

610 S.W.2d 509

Vernon McDOUGAL, Appellant, v. The STATE of Texas, Appellee.

No. 66249.

Court of Criminal Appeals of Texas, En Banc.

Jan. 21, 1981.

Robert Huttash, State's Atty., Austin, for the State.

Before the court en banc.

OPINION

DALLY, Judge.

This is an attempted appeal from an order deferring adjudication and placing Appellant on probation for 12 months. The record reflects that Appellant was charged by information with the offense of driving while intoxicated. Art. 6701l -1, V.A.C.S.

The record is before us without a transcription of the court reporter's notes or bills of exception. No brief was filed in Appellant's behalf pursuant to Art. 40.09, Sec. 9, V.A.C.C.P. There is no indication of indigency. However, in reviewing the record in the interests of justice under Art. 40.09, Sec. 13, we have discovered a jurisdictional defect which requires that this appeal be dismissed.

The record reflects that the appellant entered a plea of nolo contendere and was admonished of the consequences of his plea by the trial court. The trial court heard evidence and found that it substantiated the appellant's guilt. The trial court, however, found that the best interests of society and the appellant would be served by deferring further proceedings without entering an adjudication of guilt and placing the appellant on probation for 12 months under the provisions of Art. 42.13, Sec. 3d (misdemeanor deferred adjudication). No motion requesting final adjudication was ever filed by the appellant. Notice of appeal was given in open court from the order deferring adjudication. See also Art. 42.12, Sec. 3d (felony deferred adjudication).

In Williams v. State, 592 S.W.2d 931 (Tex.Cr.App.1979) and Wright v. State, 592 S.W.2d 604 (Tex.Cr.App.1980), this Court held that it had no jurisdiction to review the decision to proceed to adjudication under Art. 42.12, Sec. 3d. See also Shields v. State, 608 S.W.2d 924 (Tex.Cr.App.1980).

Both Art. 42.12, Sec. 3d and Art. 42.13, Sec. 3d specifically provide that no appeal may be taken from a trial court's determination to proceed with an adjudication of guilt. We conclude that the clear import of these statutory provisions is likewise to preclude appellate review of an order deferring adjudication. See George v. State, 557 S.W.2d 787 (Tex.Cr.App.1977). If a defendant is dissatisfied with the decision to defer adjudication or with the terms and conditions of the order, his proper remedy is to move for final adjudication as provided in Art. 42.12, Sec. 3d(a) and Art. 42.13, Sec. 3d(a). After adjudication of guilt, a defendant's normal appellate remedies are available to him. ¹ The purported appeal from an order deferring adjudication and placing appellant on probation is dismissed for want of jurisdiction.

CLINTON, Judge, concurring.

I agree the Court lacks jurisdiction of this purported appeal from an order deferring adjudication of guilt and placing appellant on "probation." But it seems to me there is a firmer ground for our holding the Court is without jurisdiction than the twin provisions of Articles 42.12 and 42.13, § 3d, V.A.C.C.P., barring an appeal from determination by the court below to proceed with an adjudication of guilt on the original charge. That is the fundamental proposition constitutionally laid down and articulated in Article V, § 5, of the Constitution of the State of Texas: "The Court of Criminal Appeals shall have appellate jurisdiction ... in all criminal cases ... with such exceptions and under such regulations as may be prescribed by law." The corollary is, as expressed by the Court in Ex parte Minor, 115 Tex.Cr.R. 634, 27 S.W.2d 805, 807 (1930), "(O)ne who would invoke the jurisdiction of the Court of Criminal Appeals must be able to point to some provision of the statute conferring the right of appeal and bring himself with the procedure prescribed by the Legislature." Appellant simply cannot do that in the situation he finds himself. See generally McIntyre v. State, 587 S.W.2d 413, 416 (Tex.Cr.App.1979).

As McNew v. State, 608 S.W.2d 166 (Tex.Cr.App. Opinion on Rehearing, delivered 1980), makes clear, the kind of "probation" utilized by the court in a deferred adjudication proceeding pursuant to § 3d, supra, is a breed other than "regular" probation granted under authority provided elsewhere in the probation and supervision acts. Conceptually, "probation" during deferred adjudication is similar to "probation" following a conditional discharge allowed by § 4.12 of the Controlled Substances Act, Article 4476-15, V.A.C.S. McIntyre v. State, supra, at 414.

The appeal permitted by § 8(b) of the acts "for a review of the trial and conviction ... at the time he is placed on probation" ¹ is not available to one situated as our appellant here for he has not yet suffered a conviction, as McNew v. State, supra, convincingly demonstrates.

However, the Court correctly points out appellate review is not completely denied our appellant and others similarly situated it merely awaits, as in the usual case, an adjudication of guilt, assessment of punishment, grant of "regular" probation or imposition of sentence "as if the adjudication of guilt had not been deferred," § 3d, supra; Williams v. State, 592 S.W.2d 931, 932 (Tex.Cr.App.1979); see McIntyre v. State, supra, at 418.

Accordingly, I concur in the order of dismissal.

McCORMICK, J., joins.

TEAGUE, Judge, concurring.

I concur wholeheartedly with what my Brethren Dally and Clinton say in these causes up to a point.

I believe, however, though dicta to these causes, Art. 42.12, Sec. 3d(b), V.A.C.C.P., may provide for multi-stage proceedings where the matter concerns deferred adjudication. The fear I have and why I write is that this Court's past and present decisions on deferred adjudication leave the Bench and Bar in some quarters of this State in a state of perplexity, confusion and anxiety.

First, if an accused enters...