Hardy v. State
610 S.W.2d 511
Tex. Crim. App.
1981
Check Treatment

Charles Randall HARDY, Appellant, v. The STATE of Texas, Appellee.

No. 66169.

Court of Criminal Appeals of Texas, En Banc.

Jan. 21, 1981.

610 S.W.2d 511

Steve Bairstow, Houston, for appellant.

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

OPINION

DALLY, Judge.

This is an attempt to appeal from an order deferring adjudication and placing Appellant on probation for a period of three years. The record reflects that Appellant was charged with the offense of possession of a controlled substance, namely methamphetamine. Art. 4476-15, § 4.04, V.A.C.S.

The record further reflects that Appellant waived trial by jury and entered a plea of guilty before the court. The trial court heard evidence and found that it substantiated Appellant‘s guilt. The trial court, however, entered an order deferring adjudication of guilt and placed Appellant on probation for three years under the provisions of Art. 42.12, § 3d, V.A.C.C.P. (felony deferred adjudication). No motion requesting a final adjudication was ever filed by Appellant. Notice of appeal was given in open court from the order deferring adjudication.

In

, (No. 66,249 delivered this day) we held that there was no appeal from an order deferring adjudication under Art. 42.13, § 3d (misdemeanor deferred adjudication). As we stated in
, 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, § 3d(a). After adjudication of guilt, a defendant‘s normal appellate remedies are available to him.

This purported appeal from an order deferring adjudication is dismissed for want of jurisdiction.

Charles Randall HARDY, Appellant, v. The STATE of Texas, Appellee.

No. 66169.

Court of Criminal Appeals of Texas, En Banc.

Jan. 21, 1981.

TEAGUE, Judge, concurring.

For the same reasons stated in

, No. 66,249, decided this date, I concur in the result reached by Judge Dally.

There is no appeal from that decision to this Court. However, a defendant is not without a remedy in law for if he is dissatisfied with the trial court deferring further proceedings and placing him on deferred probation, then the statute provides the defendant may, by filing a written notice within 30 days after the entry of the plea and the deferment of adjudication, request final adjudication, and have his guilt adjudicated. Should this occur, and the trial court adjudicates the defendant‘s guilt, then there should be a punishment hearing, pursuant to Art. 37.07, V.A.C.C.P., and, after assessment of punishment and the expiration of the usual times governing motions and amended motions for new trial and sentencing, if any, the defendant would then have the right to appeal to this Court; whether he is assessed a term of years in the penitentiary or is granted another probation.

If the defendant does not timely move to have his guilt adjudicated and subsequently the trial court proceeds to adjudicate the guilt of the defendant pursuant to a motion that the defendant has violated his probation then, after the hearing and adjudication of guilt, there should be a punishment hearing, pursuant to Art. 37.07, V.A.C.C.P., and thereafter the assessment of punishment by the trial court and sentence, if necessary. The defendant would thereafter have the legal right to appeal to this Court “all proceedings, including assessment of punishment, pronouncement of sentence, if any, and granting of probation, if any,” just as in an ordinary appeal of a plea of guilty or nolo contendere case.

In sum, I do not believe there is an appeal from the trial court‘s decision deferring adjudication of guilt, but once the decision is made to adjudicate the defendant‘s guilt, and the guilt is adjudicated, then I believe the matter is not any different, for appeal purposes, from that where the defendant has appeared in court, plead guilty or nolo contendere to a felony offense, and awaits the assessment of his punishment.

A close reading of Judge Dally‘s opinion does not allow for the proper procedure because the “appellate remedies that are available to a defendant,” do not commence at least until there has been an assessment of punishment, the overruling of a motion or amended motion for new trial, and a sentence, where required by law or, if no sentence, then the filing of a motion or amended motion for new trial pursuant to Art. 44.08(b), V.A.C.C.P., and thereafter the giving of timely notice of appeal.

In my opinion, my distinguished Brethren imply there is a different procedure available to a defendant in a deferred adjudication cause but I have concluded there is only one procedure available and it is dependent upon (1) whether the defendant himself desires to have his guilt adjudicated or (2) if the trial court subsequently adjudicates his guilt. Perhaps, someday in the future members of the Bench and Bar of this State will be blessed with an opinion by this Court discussing the full panoply of the handling of a deferred adjudication case. In the meantime, however, I fear the decisions of this distinguished Court and its members will leave many defendants, their attorneys, some prosecutors and some trial judges grouping in the dark like a virgin husband on the first night of his honeymoon. But, someday, I hope my Brethren will be fortunate enough to find the light bulb that will reveal the true meaning of deferred adjudication to those members on the Bench and Bar who have not found the light switch which I now tender to the other members of this Court.