Watson v. State

• Decision Date: 29 May 1996
• Docket Number: 1288-94,No. 1287-94,1287-94
• Citation: 924 S.W.2d 711
• Parties: Gloria Renee WATSON, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 711

924 S.W.2d 711

Gloria Renee WATSON, Appellant, v. The STATE of Texas, Appellee.

No. 1287-94, 1288-94.

Court of Criminal Appeals of Texas En Banc.

May 29, 1996.

Ross Teter, Dallas, for appellant.

Kimberly Schaefer, Asst. Dist. Atty., Dallas, Robert A. Huttash, State's Atty., Austin, for the State.

Before the court en banc.

OPINION ON STATE'S PETITION FOR DISCRETIONARY REVIEW

MEYERS, Judge.

On April 15, 1987, in exchange for a recommendation from the prosecuting attorney that the trial judge "defer further proceedings without entering an adjudication of guilt, and place [her] on probation," appellant pled guilty to an indictment charging her with forgery. Tex.Code Crim.Proc. art. 42.12, § 3d(a), as amended through the 69th Legislature. Finding that the evidence substantiated appellant's guilt and that the best interests of society and appellant would be served thereby, the trial judge then placed appellant on probation, as recommended by the prosecutor, without adjudicating her guilty of the charged offense. But within a year, appellant violated the conditions of her probation, and the prosecutor filed a motion with the court to proceed with an adjudication of guilt. For reasons which are not entirely clear from the record, appellant was not brought before the court to answer this motion until more than four years later. When she finally did appear, she pled true to the allegations, this time without securing any recommendation from the prosecuting attorney concerning disposition of the case. On the basis of this plea the trial judge then proceeded to adjudicate her guilty of the original forgery charge and sentenced her to confinement in the penitentiary for ten years.

On appeal appellant complained that she was punished without due course of law because the trial judge decided to give her a ten-year sentence before even adjudicating her guilty. Tex. Const. art. I, § 19. The State argued, however, that the appellate court should dismiss the appeal for want of jurisdiction on the ground that appellant's notice of appeal did not comply with Texas Rule of Appellate Procedure 40 because it failed to recite that "the trial judge granted permission to appeal" or that the errors assigned on appeal "were raised by written motion and ruled on before trial." Tex.R.App.Proc. 40(b)(1). The Eighth Court of Appeals, relying on our opinion in Ex parte Hernandez, 705 S.W.2d 700 (Tex.Crim.App.1986), overruled the State's jurisdictional claim, holding that because "the order deferring adjudication did not assess punishment and Appellant did not enter into a plea bargain as to the punishment ultimately assessed upon adjudication," the scope of her appeal was not limited by Rule 40(b)(1). Watson v. State, 884 S.W.2d 836, 837 (Tex.Crim.App.1994). With respect to the merits of appellant's due-course-of-law complaint, the Court of Appeals then reversed the trial court's judgment and remanded for a new punishment hearing. Id. at 838-39.

On discretionary review the State now contests only the first of these decisions, insisting that the Eighth Court of Appeals erred to exercise its jurisdiction in this case absent a legally acceptable notice of appeal. Specifically, the State argues that, because a defendant may now appeal from a deferred adjudication order, and because it is clear that the legislature now regards deferred adjudication as a form of punishment in the context of negotiated pleas, the relevant statutory conditions under which Hernandez was decided have materially changed. We granted review to reconsider Hernandez in light of these changes.

Deferred adjudication has long been the subject of plea bargaining in Texas. Prosecutors and defense lawyers have found that they can settle more cases without the necessity of a trial if they consider conditioning a defendant's plea of guilty or nolo contendere on a recommendation that he be placed on probation without an adjudication of guilt. But, although the availability of this option has been useful during plea negotiations, it has raised difficult problems at later stages of the criminal prosecution.

When the Legislature first implemented deferred adjudication it did not expressly authorize the appeal of orders placing defendants on probation without an adjudication of guilt. This was a significant omission, since the right to appeal does not exist at all unless authorized by statute. Ex parte Paprskar, 573 S.W.2d 525, 528 (Tex.Crim.App.1978). Of course, the legislature has long expressly permitted appeals from convictions in criminal cases. Tex.Code Crim.Proc. art. 44.02. But, because a deferred adjudication order was, by its very terms, not a conviction, it could not be appealed under authority of that general statute. See McDougal v. State, 610 S.W.2d 509 (Tex.Crim.App.1981). Accordingly, a defendant who pled guilty in exchange for a recommendation that he be allowed to avoid conviction altogether by successfully completing a period of community supervision effectively lost the right to complain on appeal about errors affecting the legality of the order deferring an adjudication of his guilt and placing him on probation.

If, however, he was later found to have violated the conditions of his probation and the trial court decided to proceed immediately with an adjudication of his guilt, he could then appeal his conviction under the general statutory right to appeal in criminal cases. But, because deferred adjudication is only available to defendants who plead guilty or nolo contendere, there are certain statutory restrictions on the right of appeal from a conviction which necessarily affect all persons who fail successfully to complete their probationary period under a deferred adjudication order. Any defendant who has been convicted on his plea of guilty or nolo contendere and whose punishment has been assessed by the trial judge in accordance with a recommendation of the prosecuting attorney may only complain on appeal of those matters allowed by the trial judge or "raised by written motion filed prior to trial." Tex.Code Crim.Proc. art. 44.02, as amended through the 69th Legislature. See now Tex.R.App.Proc. 40(b)(1).

The question therefore soon arose whether a defendant's right to appeal from a criminal conviction might be restricted on account of an earlier recommendation by the prosecutor that he be placed on probation without an adjudication of guilt. In 1986 we held that, because "an order conforming with plea bargain for deferred adjudication is not an appealable order and does not assess punishment," any appeal from a subsequent judgment of conviction in the case is not restricted by the prosecutor's earlier recommendation of deferred adjudication. Hernandez, 705 S.W.2d at 703. In 1987, however, the conditions upon which we based that conclusion changed when the legislature added article 44.01(j) to the Code of Criminal Procedure, providing in part that an appeal "may be prosecuted by the defendant where the punishment assessed is in accordance with Subsection (a), Section 3d, Article 42.12 of this code," the deferred adjudication statute. See Acts 1987, 70th Leg., ch. 382, § 1. We have held that the effect of this statute is to make deferred adjudication orders appealable and, by implication, to restrict such appeals as prescribed by Rule 40(b)(1). Dillehey v. State, 815 S.W.2d 623 (Tex.Crim.App.1991).

Thus, the basic rationale of our opinion in Hernandez has been undercut by subsequent changes in the statutory law, and there is every reason to believe that it was undercut deliberately. A significant advantage of plea bargaining, at least in Texas, is that appellate review of disputed legal issues can be expedited by exchanging a plea of guilty for a punishment recommendation. Substantial judicial resources are thereby conserved because the State can secure an acceptable disposition of pending criminal cases and the defendant can obtain expeditious appellate review of contested legal matters without the necessity of a full adversarial trial.

The law in effect when Hernandez was decided reduced the desirability of deferred adjudication as a plea bargaining option in this process because appellate review was necessarily delayed in such cases until the trial court proceeded with an adjudication of guilt, often many years later. By providing that an order of deferred adjudication may henceforth be regarded as punishment for purposes of plea negotiations and by authorizing immediate appeal from deferred adjudication orders, the legislature opted to make the consequences of plea bargains for deferred adjudication equal to those involving other punishment recommendations. Attorneys for the defendant and for the State may now bargain for deferred adjudication, just as for any other disposition, confident on the one hand that an appeal may be taken immediately from any ensuing order or judgment in the case, and on the other hand that any such appeal will be limited to matters which the trial judge allows, to pretrial motions, and to jurisdictional defects.

By the express terms of rule 40(b)(1) (formerly article 44.02), these restrictions on the right to appeal apply only "if the judgment was rendered upon [a] plea of guilty or nolo contendere and the punishment assessed does not exceed the punishment recommended by the prosecutor and agreed to by the defendant and his attorney[.]" Because it is clear that the judgment of conviction against appellant in the instant cause was rendered upon her plea of guilty and that the punishment recommended in exchange for her plea was a deferred adjudication order placing her on probation, the only remaining question is whether the assessment of ten years confinement following her conviction exceeded the punishment to which she, her attorney, and the prosecutor agreed. We hold that it did not.

Although the term of years ultimately assessed against appellant in this case may not have been fixed by the plea...