Prior v. State

• Decision Date: 06 June 1990
• Docket Number: No. 0907-89,0907-89
• Parties: Randy PRIOR, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 179

795 S.W.2d 179

Randy PRIOR, Appellant, v. The STATE of Texas, Appellee.

No. 0907-89.

Court of Criminal Appeals of Texas En Banc.

June 6, 1990.

Warren Burnett and Nancy Barbour, Odessa, for appellant.

Gary P. Garrison, Dist. Atty., Michael T. Griffin, Asst. Dist. Atty., Odessa, and Robert Huttash, State's Atty., Austin, for the State.

Before the court en banc.

OPINION ON APPELLANT'S PETITION FOR DISCRETIONARY REVIEW

MILLER, Judge.

Appellant was indicted on January 11, 1982, for the then third-degree felony offense of delivery of more than one-fourth ounce of marijuana. See Art. 4476-15, § 4.05 of the Texas Controlled Substances Act. ¹ Upon appellant's plea of guilty, the trial court deferred further proceedings in the cause, without entering an adjudication of guilt, and entered an order on April 23, 1982, placing appellant on deferred adjudication probation for five years, pursuant to Art. 42.12, § 3d(a), V.A.C.C.P. ² On August 4, 1988, well after the probationary period had expired, the trial court proceeded to an adjudication of guilt and sentenced appellant to a term of five years in the Texas Department of Corrections. ³

On appeal, the El Paso Court of Appeals ruled in an unpublished opinion that the trial court had jurisdiction to enter an adjudication of guilt after the period of deferred adjudication had expired and affirmed appellant's conviction. Prior v. State, No. 08-88-00255-CR (Tex.App.--El Paso, May 3, 1989). We granted appellant's petition for discretionary review to examine his contention that this ruling was erroneous. We will affirm.

A review of the record reveals that after appellant was put on five-years' deferred adjudication probation on April 23, 1982, the State filed a "Motion for Warrant and to Adjudicate Guilt" in the cause on June 9, 1982, alleging that appellant had violated the terms of his probation. See Art. 42.12, § 3d(b), supra. On June 10, 1982, a warrant for appellant's arrest was issued. On July 10, 1988, approximately six years later and over one year after appellant's period of probation had expired, the warrant was executed by the arrest of appellant in Manchester, New Hampshire. Following a hearing, the trial court entered an order adjudicating appellant guilty of the original offense and imposed the five-year sentence on August 4, 1988.

In his appeal to the court of appeals, appellant raised two points of error, to-wit: that the trial court lacked jurisdiction to revoke probation because it occurred after appellant's probationary term expired; and that a judgment of acquittal should be entered because the State failed to show diligence in obtaining an adjudication of appellant's guilt during the period of deferred adjudication. The court of appeals overruled both points, stating:

We disagree [with appellant's contentions] because a proper motion to revoke probation and the warrant had issued before the end of the probationary period. Roberson v. State, 688 S.W.2d 657 (Tex.App.--Eastland 1985, no writ); Strickland v. State, 523 S.W.2d 250 (Tex.Crim.App.1975). Evidence at the revocation hearing was that the Appellant had never reported to his probation officer and had not obtained permission to leave the county. He was arrested on the warrant in New Hampshire. There was sufficient evidence to justify finding that the Appellant had fled the State of Texas and no showing of lack of diligence on the State's part to try to find him.

Appellant also relies on Tex.Code Crim.Pro.Ann. art. 42.12, sec. 3d(c) (Vernon Supp.1989), contending that the court was required to dismiss and discharge the Appellant since his probationary term had expired with no adjudication of guilt. However, we find that Tex.Code Crim.Pro.Ann. art. 42.12, sec. 3d(b) is applicable and not Section 3d(c) because the motion to adjudicate guilt and the arrest warrant were timely issued. There was also no showing that there was any lack of diligence on the part of the State.

Prior, slip op., at p. 2.

In his petition for discretionary review, appellant challenges the correctness of the court of appeals' decision on two grounds. First, appellant contends that the court of appeals erred in affirming the judgment of the trial court because appellant's deferred adjudication period had expired prior to an entry of a "guilty" judgment. In his second ground for review, appellant claims that the court of appeals erred in holding that the filing of a motion to adjudicate guilt and issuance of a capias prior to the expiration of the deferral period was sufficient to show due diligence in attempting to apprehend appellant even though the State offered no evidence of any efforts to apprehend appellant save the issuance of the arrest warrant. We will address appellant's contentions in order.

In support of his first ground for review, appellant argues that the plain language of Art. 42.12, § 3d(c) mandates a dismissal of the charges against a deferred adjudication probationer upon the expiration of the deferral period if the trial court has not proceeded to an adjudication of guilt at that time. Article 42.12, § 3d(c) states in pertinent part:

(c) On expiration of a probationary period imposed under Subsection (a) of this section, if the court has not proceeded to adjudication of guilt, the court shall dismiss the proceedings against the defendant and discharge him.

In response, the State contends that because a deferred adjudication probationer may be arrested and detained upon an allegation that he has violated the terms of his probation, Art. 42.12, § 3d(b), the sole reason for the dismissal of a deferred probationer is not the expiration of the probationary period alone, and that where a motion alleging such a violation and an arrest warrant are filed prior to the expiration of the probationary period, revocation and adjudication are proper upon a hearing, even after the expiration of the period. Article 42.12, § 3d(b) provides:

(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 by 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.

In further support of its position, the State places primary reliance on Coleman v. State, 632 S.W.2d 616 (Tex.Crim.App.1982), wherein we held that where a motion to revoke deferred adjudication probation was filed and a capias had issued thereon prior to the expiration of the probationary period, the trial court had jurisdiction to hear the motion, revoke the probation and enter an adjudication of guilt even though the period of probation had expired before the hearing. Coleman, 632 S.W.2d at 618. See also Garza v. State, 725 S.W.2d 256 (Tex.Cr.App.1987). However, the cases relied upon in Coleman involved "regular" probation, that is, probation of a sentence after a conviction, pursuant to the provisions found in Art. 42.12, § 7, supra. See Strickland v. State, 523 S.W.2d 250 (Tex.Cr.App.1975); Coffey v. State, 500 S.W.2d 515 (Tex.Cr.App.1973). Although we agree with the holding in Coleman, 632 S.W.2d 618, we believe the application of a rule regarding "regular" probation to "diversionary" probation merits more explanation than found in that opinion.

This Court has recognized that an accused whose guilt has yet to be adjudicated and who is placed on "diversionary" probation under Art. 42.12, § 3d(a), supra, does not attain the identical status of one who has been found guilty and placed on "regular probation" after punishment is assessed but then suspended. Garza, 725 S.W.2d at 258, note 2; McNew v. State, 608 S.W.2d 166, 174 (Tex.Cr.App.1980) (Opinion on Appellant's Motion for Rehearing). For example, as we stated earlier, Art. 42.12, § 3d(c), supra, provides that once the probationary period has expired for a deferred adjudication probationer, if the trial court has not proceeded to an adjudication of guilt, the court shall dismiss the proceedings against the probationer and discharge him. By contrast, Art. 42.12, § 7, supra, provides that for a non-deferred adjudication or "regular" probationer,

[u]pon the satisfactory fulfillment of the conditions of probation, and the expiration of the period of probation, the court, by order duly entered, shall amend or modify the original sentence imposed, if necessary, to conform to the probation period and shall discharge the [probationer].

Therefore, whereas a "regular" probationer will be discharged upon the satisfactory fulfillment of his probation conditions and the expiration of the period of probation, see Ex parte Fennell, 162 Tex.Crim. 286 284 S.W.2d 727 (1955), reh'g. denied, a deferred adjudication probationer shall be dismissed upon expiration of the probationary period, as long as the court has not proceeded to an adjudication of guilt. Art. 42.12, § 3d(c), supra.

These differences aside, the provisions for both deferred adjudication ⁴ and regular probation refer to Art. 42.12, § 8, supra, for the appropriate procedures to follow upon an allegation that the probationer has violated the terms of probation. That section provides in part:

(a) At any time during the period of probation the court may issue a warrant for violation of any of the conditions of the probation and cause the defendant to be arrested. Any probation officer, police officer or other officer with power of arrest may arrest such defendant without a warrant upon the order of the judge of such court to be noted on the docket of the court. A probationer so arrested may be detained in the county jail or other appropriate place of detention until he...