*1 DAVIS, Appellant, Thomas J.
The STATE of Texas.
No. PD-0078-05.
Court of Criminal of Texas.
June *2 indicated Vicknair, attorney the matter and Corpus about Audrey Mullert Testimony Christi, ready proceed. he to Appellant. was any viola- hearing at did not establish the Norman, Atty., Douglas K. District asst. community super- conditions of tion of the Christi, Paul, Corpus Matthew State’s was, however, to shown Appellant vision. Austin, atty., for State. responses two out given deceptive on have KELLER, examinations, P.J., and the opinion polygraph of of four delivered the MEYERS, PRICE, period appel- the Court which court the trial extended WOMACK, HERVEY, HOLCOMB On Feb- by year. one supervision lant’s COCHRAN, JJ., joined. 13, 2002, hearing at a at which ruary counsel, his by pellant represented was that in there We know the usual case by more was extended two supervision no from trial court’s determina- 19, 2002, the years, September and on adjudicate to there is a guilt tion because adjudicate. a motion to After State filed it.1 statutory prohibition against pled true to several appellant us is is an before whether there adjudi- allegations, the trial court State’s to that exception claims ten guilt appellant and sentenced to cated jurisdiction trial that attack a to years in case, prison. appellant alleges act. that he hearing was denied counsel at earlier at supervision
which the term of his was ex- Opinion Appeals B. Court of lack tended and that the of counsel caused the claiming that Appellant appealed, subsequent adjudica- the extension the jurisdiction adjudicate to court lacked to tion both be void. We hold that there is guilt purported the first because jurisdictional exception prohibi- to 24th was community supervision May on against appealing tion the determination to nullity to of counsel.2 due the absence adjudicate guilt. of written waiver Despite the existence adjudication hearing, I. BACKGROUND Appeals concluded that the Court A. Facts claim because appellant’s could consider 31, 1999, August pled appellant On waiver invalid3 and because was guilty indecency to with a child. Pursu- to appel- an error unrelated claim involved to plea agreement, placed ant he was not, The court how- lant’s conviction.4 did years. for two On deferred ever, the claim was barred discuss whether 18, 2001, May the trial court decided to against appeal by statutory prohibition progress supervi- of appellant’s review adju- a trial court’s determination give opportu- but recessed to him the sion guilt.5 dicate nity hearing counsel. obtain When claim, the later, Regarding the merits of the days six was appellant was convened court counsel, that the trial but he had consulted an Court held without 42.12, 5(b). All Art. Proc., at 200, 1. Tex.Code Crim. are to the Texas future references to articles Code of Criminal Procedure. at 207-208. Id., passim; 200-204 see Tex.Code
2. Davis Proc., Art. Crim. 2004). (Tex.App.-Corpus 5(b). Christi appellant denied his aspects adjudi counsel of a Some deferred May hearing failing proceeding appealable; 24th cation admonish are some are not. regarding dangers him sort “[A]n must disadvan *3 out tages rulings various of make self-representation failing in the of adjudication course a deferred indigent.6 determine whether was he proceeding to determine those which the The court held that this denial rendered 13 Legislature provided right to appeal.” void the of supervision perio question We first address the of whether Fulce,8 Relying d.7 parte Ex May 24th determination to extend the that, appellate court concluded because the term of supervision independently ap- was subsequent adjudication guilt of occurred pealable. outside of the period supervi authorized sion, adjudication itself was also a null State, In v. Basaldua we recog ity.9 nized, context, “regular” probation Legislature
that the
has authorized appeal
(1)
in two
grant
instances:
from an order
II. ANALYSIS
(2)
ing probation and
from an order revok
regard
With
to a trial court’s ad
ing probation.14
legislative
is no
There
judication
guilt,
42.12, §
authority
entertaining
for
a direct appeal
provides: “No appeal may be taken from from an
modifying the
order
conditions
this determination.”10
recently
We have
community supervision.15 A complaint
reaffirmed that this language means that
can,
however,
about
modification
“the
of appeals
jurisdic
courts
do not have
in an appeal
raised
from a revocation if the
tion to
relating
consider claims
to the trial
validity of
depends
the revocation
on the
proceed
determination to
with an validity of
the modification.
Rickets v.
adjudication
guilt
original
on the
State, the
of proba
defendant’s conditions
charge.”11
means,
This
thing,
for one
impose
tion were modified to
an additional
an appellate court cannot consider on ap
condition.16 His probation was later re
peal a
right
claim that the defendant’s
violating
voked for
that added condition.
counsel
was violated at the
complained
He
on appeal from the revoca
hearing.12 The present case involves an
tion that
condition
too
added
was
alleged
violation of the
to counsel. vague to be
held that Rick-
enforced. We
question
The
timing
is whether the
complain
els was
add
entitled
about the
alleged
changes
violation
the outcome of
probation
ed condition of
at that
be
time
the ease. We find that it
object
does not.
cause he
at
opportunity
had
Davis,
State,
940,
6.
at
150 S.W.3d
210.
v.
826
941
13.
Olowosuko
(Tex.
1992).
Crim.App.
7.
(Tex.Crim.App.1999).
8.
opinion was the
not act as
does
only because
case20 and
appealable
was
habeas
modification
validity
proceedings.21
of the later revoca-
it affected
in habeas
bar
complaint
A
a con-
entitled
proceeding.
appellant
tion
about
is whether
this case
revocation,
by way
not a
dition that was
basis
on direct
to seek relief
instance,
consid-
would not have been
Connolly v. State22
corpus.
of habeas
language sug-
ered.
contain
v. State do
Hogans
may be
jurisdictional claims
gesting
analogous
adjudication is
Deferred
*4
5(b)’s
against
§
exempt from
up
regard
With
to deferred
point.
to
language is dicta because
but the
authorized
Legislature
the
adjudication,
cases.
in those
presented
not
the issue was
(1) an
only
types
two
of orders:
appeal of
adjudication, and
granting deferred
order
§
that
held
Connolly,
In
this Court
(2)
pursu
imposing punishment
an order
was insuf-
a claim that the evidence
barred
adjudication
It follows
guilt.18
to an
of
ant
had
to
that
the
exer-
show
State
ficient
Basaldua,
reasoning in
the
our
from
the
apprehending
diligence
cised due
Rickels,
modifying
that an order
result
distinguished two earlier
defendant.23 We
adjudi
terms or conditions of deferred
the
issue on
entertained the
cases that had
appealable.
in itself
cation is not
in those
the
appeal by saying that
Court
the
“regular” probation,
But unlike with
that
under the notion
“operated
cases had
specifically
appeal
has
barred
Legislature
matter
diligence
jurisdictional
was a
due
adjudicate.
to
the determination
Arti-
appeal despite
on
and could be raised
therefore,
is,
opportunity
There
5(b).”24
42.12,
of those
§
But neither
cle
of de-
peal
challenge
to
a modification
of the
applicability
the
cases addressed
a basis
ferred-adjudication supervision as
adjudica-
barring appeal
provision
adjudication.
overturning
an
So while the Connol-
tion determination.25
may
correct
believ-
ly
have been
the
remaining
The
whether
influenced
ing
the earlier cases were
“jurisdictional”
appellant’s
nature of
claim
jurisdictional
issues
by the “notion”
statutory
exempts it from the
somehow
5(b)’s
prohi-
§
exempt
were
the trial
prohibition against appealing
implied,
bition,
was at best
a notion
such
adjudicate,
that the
court’s decision to
so
any
lend
attempt to
the cases did not
part
as
of
may
challenged
modification
Connolly
it.
And since
support
actual
from the revocation.
main
of those
repudiated one of the
results
relied
Fulce for
Court
(the
diligence on
of due
cases
consideration
that an unauthorized extension
proposition
persua-
particularly
do not find
appeal),
we
probation
renders
revoca-
of the term
23. 983
at 741.
S.W.2d
Id. at 902.
5(b);
44.01(j),
Olowosuk
18. See Arts.
179,
(citing
795 S.W.2d
Prior
ho,
826 S.W.2d
941-942.
Langston v.
(Tex.Crim.App.1990)
184
553,
(Tex.Crim.App.
554
800
Davis,
S.W.3d at
150
1990)).
Fulce,
S.W.2d at 661.
20. See
passim.
Langston,
25. See Prior and
Carmona,
(2006).
sive
notions that the
did guage
appear
cases
does not
to contain one.32
support.
not
Griffin,
In
we
legislative
addressed the
“proviso” limiting plea-bargaining
defen-
Hogans,
we cited Nix v. State26 for
appeal.33 Although
dant’s
pro-
proposition
“Legislature’s pro
that the
viso
repealed pursuant
had been
to the
hibition [in
] includes all complaints
rule-making
Court’s
authority, we were
related to
pro
court’s decision to
obliged to maintain its
provi-
substantive
adjudication
ceed to an
guilt,
except
permitted
sions because our rules are not
those challenging
jurisdic
the trial court’s
“abridge,
Nix, however,
enlarge,
modify
tion.”
or
spoke
sub-
of the “void
rights of
litigant.”34
stantive
judgment exception” only
We held
in connection
Manuel,28
plain
with
that the
language
which
former
extended to
de
44.02
nothing
“includes
ferred
context
indicate that the
the doctrine
legislature
exempt jurisdiction-
that a
intended to
origi
defendant
attack an
plea
nal
al
during
general
from a
issues from the
limits
revocat
recognized
ion.29 We
proviso.”35
We found that
doctrine
this Court had
*5
was borrowed from a
“regular”
inappropriately
jurisdictional
line of
inserted a
probation cases,30
which,
course,
exemption
past
in an
caselaw and
earlier
§
does not
apply.
even
Manuel’s
version
one of our
rules of
adoption of the doctrine prohibiting such procedure but had corrected the situation
appeals was based
upon
passage
omitting “jurisdiction” from the latest
44.01(j)31
and not
prohibi
version of the rule.36
tion against
appeal found Article
legislative proviso,
As with the
the pro-
5(b).
To
judg
the extent that a “void
hibition
juris-
found in
contains
might
Nix,
ment” claim
possible
under
exception.
dictional
in ques-
The sentence
it
only
would be
as
origi
an attack on the
says:
may
tion simply
“No
be taken
nal plea proceedings imposing
ad
deferred
jurisdictional
A
determination.”
judication,
jurisdiction
aon trial court’s
attack on the trial court’s determination is
adjudicate
upon subsequent
based
determination,
still
attack on that
and
events.
appeal.
not be advanced on
A recent decision in a similar context
suggests
judgment
“juris-
we should not find a
Court
is
exception
reversed,
dictional”
to a
and the trial
judgment
against appeal
statutory
when the
lan-
affirmed.37
(Tex.Crim.
26.
concurred J.,
COCHRAN, concurring filed MEYERS,
opinion HERVEY, in which HOLCOMB, JJ., joined. J.,
COCHRAN, a concurring filed MEYERS, HERVEY,
opinion in which HOLCOMB, JJ., joined. join majority opinion
I with un- appellant, though pre-
derstanding raising alleging
cluded from claim—
improper community of his su-
pervision term —on direct is not
precluded raising same claim
a post-conviction corpus. writ of habeas *6 Noey MARTINEZ,
Ex Parte José
Applicant.
No. AP-75086.
Court of Criminal Texas.
June