923 S.W.2d 174 | Tex. App. | 1996
Lead Opinion
OPINION
Appellant Muhammad Faleh Abu Jarour was charged with theft of property valued at $750 or more but less than $20,000. Upon his plea of guilty, the trial court deferred adjudication and placed him on probation for a period of two years. Before the end of the probationary term, the State moved to adjudicate Jarour’s guilt, alleging that he had failed on several occasions to report to his probation officer as required by the conditions of his probation. At the adjudication hearing, Jarour pleaded true to the allegation of failure to report. The trial court found him guilty of theft and sentenced him to two years in prison.
In his sole point of error, Jarour complains that he was denied the right to confront the witnesses against him at the adjudication hearing because the trial court failed to sua sponte appoint an Arabic interpreter for him. For the reasons stated below, we are juris-dictionally barred from addressing the merits of this complaint.
Article 42.12 of the Texas Code of Criminal Procedure, controls questions concerning adult probation and applications to revoke probation.
DAUPHINOT, J., files a concurring opinion.
. Probation is now called community supervision. Tex.Code Crim.Proc.Ann. art. 42.12 (Vernon Supp.1996).
Concurrence Opinion
concurring.
In the case before us, the majority holds that we do not have jurisdiction to review Jarour’s contention that he was denied his constitutional right to confront the witnesses against him at the adjudication hearing. As I understand current law, I am constrained to concur.
Article 42.12, section 5(b) has created a veritable Gordian Knot for the intermediate appellate courts.
Section 5(b) also establishes that the defendant may be arrested and detained as provided in section 21 of article 42.12.
The United States Supreme Court has enunciated the minimum requirements of due process that must be observed in probation revocation hearings. They include: written notice of the claimed violations of probation, disclosure to the probationer of the evidence against him, the opportunity to be heard in person, and by counsel, and to present witnesses, the right to confront and cross-examine adverse witnesses, a “neutral and detached” hearing body, and a written statement by the fact finder as to the evidence relied on and the reasons for revoking probation.
Although case law tells us that the right to appeal a criminal conviction is legislatively created,
When the legislature initially created the deferred adjudication probation, it prohibited appeal of pretrial error before the adjudication of guilt.
But Senator Washington was mistaken. Although the amendment now allows for appeal before adjudication, unlike appeal from a “regular probation,” it still does not allow for review of the adjudicative procedure.
The question, then, is how to insure the minimal due process guarantees mandated by the Supreme Court in Gagnon, when no review is permitted. Although article 42.12, section 21 requires the allegation of a violation of a condition of community supervision, article 42.12, section 5(b) permits no review. We find ourselves, then, assuring a defendant on deferred adjudication community supervision that he or she is entitled to the fundamental protections of fair play and due process, but we deprive that same defendant of any vehicle for lodging a complaint that such guarantee has been violated.
Judge Overstreet suggests in his concurring opinion in Olowosuko v. State that the only avenue for redress of the denial of a fundamental, constitutionally guaranteed right is through a post-conviction writ to the Court of Criminal Appeals.
As an intermediate court, we must follow the dictates of the highest criminal court of the state. But we must understand our role in the administration of justice. Currently, we are confused, as is attested by the fact that some intermediate courts deal with constitutional errors in article 42.12, section 5 adjudications,
We may not ignore the mandates of the Court of Criminal Appeals, but we may beg for guidance.
. See Tex.Code Crim.Proc.Ann. art. 42.12, § 5(b) (Vernon Supp.1996).
. Id.
. Id. § 21(a).
. Id. § 21(b).
. Gagnon v. Scarpelli, 411 U.S. 778, 786, 93 S.Ct. 1756, 1761-62, 36 L.Ed.2d 656, 664 (1973); Morrissey v. Brewer, 408 U.S. 471, 487-90, 92 S.Ct. 2593, 2603-05, 33 L.Ed.2d 484, 498-99 (1972); Ruedas v. State, 586 S.W.2d 520, 523 (Tex.Crim.App. [Panel Op.] 1979).
. Phynes v. State, 828 S.W.2d 1, 2 (Tex.Crim.App.1992).
. Tex. Const, art. V, §§ 5, 6.
. See Carter v. State, 656 S.W.2d 468, 468 (Tex.Crim.App.1983); Smith v. State, 513 S.W.2d 823, 829 (Tex.Crim.App.1974).
. See McDougal v. State, 610 S.W.2d 509 (Tex.Crim.App.1981).
. 815 S.W.2d 623 (Tex.Crim.App.1991).
. Id. at 624-25.
. Id. at 625.
. Phynes, 828 S.W.2d at 2.
. 826 S.W.2d 940, 942 n. 2 (Tex.Crim.App.1992) (Overstreet, J., concurring).
. See, e.g., Gilbert v. State, 852 S.W.2d 623 (Tex.App. — Amarillo 1993, no pet.); De Leon v. State, 797 S.W.2d 186 (Tex.App. — Corpus Christi 1990, no pet.); Eldridge v. State, 731 S.W.2d 618 (Tex.App. — Houston [1st Dist.] 1987, no pet.); Dahlkoetter v. State, 628 S.W.2d 255 (Tex.App.—Amarillo 1982, no pet.).
. See, e.g., Collins v. State, 912 S.W.2d 864 (Tex.App. — Beaumont 1995, no pet.); Osborne v. State, 845 S.W.2d 319 (Tex.App. — Houston [1st Dist.] 1992, pet. ref’d); Ballard v. State, 628 S.W.2d 236 (Tex.App. — Amarillo 1982, pet. ref'd).