Watson v. State

7H in the after had were victim’s back he fallen. “majority” the wounds

Can the fact that lay inflicted on the victim as he face-

were meaningfully distinguished from a

down be wounds were inflicted

scenario where immediately following the

victim’s ter- chest victim,

rorizing of that which such as just Smith? Could it not be

occurred so,

telling, or faces his more defendant inflicting fatal

victim while wounds?

The Court’s contortion the facts transparent.

case is This case involved the

murder of a store course of a clerk

robbery. clerk killed knife. and, murders,

It was as with all senseless facts, these

brutal. But on Court’s hold- Further,

ing nullity. renders article 37.071 contrary light precedent the Court’s

holding exemplifies im- wanton and freakish

position penalty. death therefore

disagree appel- court’s resolution of punish- first point relating

lant’s of error conviction, affirm

ment would but to life

reform death

imprisonment.

OVERSTREET, J., joins. WATSON, Appellant,

Gloria Renee Texas, Appellee. STATE 1287-94,

No. 1288-94. Texas,

Court of Criminal

En Banc.

May three,” pellant concludes that amounts to thrust knife into the deceased’s then exiting back several more times before “majority.” store. Majority opinion Apparently at 694-695. assum- that since “several" is more than "two 712

OPINION ON STATE’S PETITION FOR DISCRETIONARY REVIEW MEYERS, Judge. 15,1987, April exchange

On for recom- prosecuting attorney mendation from the judge that proceed- “defer further ings entering without place probation,” pled and appellant on [her] guilty charging to an indictment her with forgery. Tex.Code art. Crim.Proc. 3d(a), through Legis- as amended the 69th Finding lature. that the evidence substanti- appellant’s guilt ated and that the best inter- society appellant ests of served would be thereby, judge placed trial appellant then probation, prose- on as recommended cutor, adjudicating without her charged year, appel- offense. But within lant probation, violated the conditions of her prosecutor filed motion with the proceed guilt. court to entirely For reasons which clear are record, appellant brought fi’om the was not before the court to this until answer motion years finally more than four later. When she appear, pled allegations, did she true securing any this time without recommenda- prosecuting attorney tion from the concern- ing disposition of the On case. the basis proceeded trial then judge adjudicate original forgery her charge and sentenced to confinement her penitentiary years. for ten complained appeal appellant On that she punished law be without due course of judge give her a cause the trial decided to ten-year adjudicating even sentence before I, § guilty. her Tex. art. Const. however, appellate argued, that court dismiss should for want jurisdiction ground appellant’s on comply Texas notice of did not Appellate Rule of Procedure 40 because judge granted failed trial to recite “the as permission appeal” or that the errors signed raised written “were Teter, Dallas, appellant. Ross motion ruled on trial.” Tex. before Schaefer, R.App.Proc. Eighth Kimberly Atty., Asst. Dist. Dal- Huttash, las, Austin, Appeals, relying on our Ex Atty., A. Robert State’s (Tex.Crim.App. 700 S.W.2d for the State.

1986), jurisdictional overruled the State’s claim, defer- holding that “the order authority of appealed under ring adjudication not assess could did McDougal v. general did into a bar statute. See Appellant not enter (Tex.Crim.App.1981). ultimately as gain as to pled guilty adjudication,” scope Accordingly, of her defendant who sessed 40(b)(1). by exchange that he appeal was not limited Rule for a recommendation (Tex. 836, altogether S.W.2d 837 conviction Watson allowed to avoid be respect period the merits of Crim.App.1994). successfully completing With to a by complaint, appellant’s community effectively of due-course-of-law lost the supervision trial Appeals then the the Court of reversed complain appeal on about errors right to a new judgment and remanded for court’s affecting legality of the order defer- the punishment hearing. Id. at 838-39. adjudication plac- ring an of his probation. him on ing discretionary the now con-

On review decisions, insist- only the first of these tests If, however, to found have he later Eighth of erred that the probation and the of his violated conditions jurisdiction this absent to its case exercise proceed to immediate the trial court decided acceptable appeal. Specifi- legally a notice of guilt, he ly adjudication an of his could that, cally, argues because a defen- the State general appeal the then his conviction under adjudi- appeal from a dant now deferred statutory appeal in criminal right to cases. order, the cation it is that because clear But, only adjudication deferred is because adjudica- legislature regards now guilty plead to or available defendants who punishment of in the context as a form contendere, statutory nolo there are certain statutory negotiated pleas, of the relevant right appeal from a restrictions on the of de- conditions under which Hernandez was per necessarily affect all conviction which materially changed. granted cided have complete successfully to their sons who fail light of to review reconsider Hernandez adjudi period under a deferred probationary changes. these Any who has been cation order. defendant plea guilty of or nolo conten- convicted on his adjudication the long has been Deferred punishment has been as subject dere and whose plea bargaining of Prose- Texas. by judge in with a lawyers that sessed the trial accordance cutors and defense found have attorney they prosecuting neces- can settle more cases without the recommendation sity conditioning may only complain on those mat they appeal a trial if consider of of by plea by judge guilty or or “raised defendant’s nolo contendere ters allowed prior on a to trial.” Tex. placed recommendation that he on written motion filed be adjudication guilt. art. as amended without an Code Crim.Proc. But, availability Legislature. although option through the the See now Tex. of this 69th 40(b)(1). it during plea negotiations, R.App.Proc. has useful been problems stages has raised difficult later soon arose question therefore prosecution. of the criminal right from whether defendant’s might imple on Legislature the first criminal conviction be restricted When by recommendation mented deferred it did ex account an earlier placed prosecutor orders that he be pressly authorize the guilt. In placing 1986 we defendants on without without that, conforming guilt. signifi “an This was a held because order omission, bargain adjudication is not right plea for deferred cant since the by pun not assess does exist at all unless authorized order does ishment,” any appeal subsequent parte Paprskar, statute. Ex 573 S.W.2d course, 525, case judgment in the is not (Tex.Crim.App.1978). of conviction Of expressly prosecutor’s earlier recom legislature long permit restricted has adjudication. Her ted from convictions in criminal mendation of deferred appeals nandez, In at 703. howev Tex.Code art. 44.02. cases. Crim.Proc. But, er, upon we based the conditions which terms, conviction, was, changed legislature when add- very not a conclusion its ed article By express the Code of Criminal terms rule Procedure, providing part 44.02), (formerly that an article these restrictions on “may prosecuted by only defendant where “if apply judg assessed is in accordance ment upon rendered [a] (a), 3d, with Subsection Section Article 42.12 nolo contendere and the code,” the deferred stat does not exceed the recom 382, § ute. Leg., See Acts 70th prosecutor agreed eh. mended We have held effect of this attorney[.]” statute the defendant and his Because make appeal- orders it is judgment clear conviction and, by implication, able ap against appellant restrict such in the instant cause was peals prescribed by Dille rendered her and that the State, hey v. (Tex.Crim.App. punishment exchange 815 S.W.2d 623 recommended in for 1991). plea her was a deferred placing probation, only remaining her the Thus, the basic rationale of our in question is whether the assessment of ten by subsequent Hernandez has been undercut years confinement her following conviction changes law, statutory in the and there is punishment she, exceeded the which her every reason to believe it was undercut attorney, prosecutor agreed. deliberately. significant plea A of advantage hold that it did not. Texas, bargaining, in appellate at least is that disputed legal review of expe- issues can be Although years of the term ulti by dited exchanging plea a for guilty of a mately against appellant assessed in this punishment recommendation. Substantial may by plea case have been fixed the judicial thereby are resources be- conserved bargain, think we it to be a reasonable inter acceptable cause the can secure an pretation plea of agreements as such the one disposition pending of criminal cases and the that, here prosecutor involved when a rec expeditious defendant can appellate obtain adjudication in exchange ommends deferred legal review of contested matters without the plea guilty for a or defendant’s of nolo con- necessity of a full adversarial trial. tendere, judge the trial does not exceed that if, upon proceeding recommendation to an in law effect when Hernandez guilt, of any he assesses later desirability decided reduced the of deferred punishment by within range the allowed law. plea bargaining option as a That a is because defendant who trades a process appellate review was plea guilty of a nolo contendere for rec necessarily delayed such until the cases by prosecutor judg ommendation the that a proceeded trial court with an delayed ment of be while he serves a many years By providing often later. period community supervision necessarily adjudication may that an order of deferred accepts, least in at the absence some ex regarded henceforth be as for press contrary, agreement to the purposes negotiations plea autho- and prosecutor making recommendation rizing adju- from immediate concerning may years all the term of he be orders, legislature dication opted make required to serve if his is later re plea consequences bargains for de- proceeds adjudi trial voked and the court adjudication equal involving ferred to those guilty charged cate him offense. other Attor- recommendations. neys cause, may for In it is the defendant for the State the instant while true that bargain adjudication, just prosecutor appellant now for deferred did not recommend any disposition, penitentia- for punished years other confident on the be with ten in the ry judg- one hand that an be taken imme- should the trial court enter a later case, diately ensuing judgment punish- any order or ment of conviction her case, any years actually against in the on the other hand that ment of ten assessed such will limited to which her her was revoked did not be matters when allows, motions, imple- judge pretrial judge amount to refusal the trial jurisdictional bargain. prosecutor defects. ment the What light of majority, is that recommended, today in fact appellant did and what 44.01(j), prosecutorial receive, ad- Article recommenda- under in ex- Only had made judication prosecutor if the tion of deferred order. or nolo contendere period change incarcera- for recommended that also years imposed upon “punishment recommended” less that ten now constitutes tion proviso reasonably prosecutor purposes be said conviction could for ultimately holding ten-year 40(b)(1), notwithstanding in this term our contrary parte recommenda- in Ex case exceeded the to the But Article given exchange appellant’s (Tex.Cr.App.1986). so, say clearly and believe plea. does not creates “implication” into it that to read that reasons, Eighth For these provisions gov- statutory conflict other nonju- reach the Appeals erred to merits adjudication, threatens erning complaints by appellant risdietional raised constitutionality of the entire deferred judge of the trial or bene permission without I dissent. adjudication scheme. trial. motion before fit of written filed (Tex.Crim. State, Lyon v. 872 S.W.2d732 Hernandez, supra, we were In Ex App.1994); Davis 870 S.W.2d essentially the issue we presented with same Accordingly, the (Tex.Crim.App.1994). today, the that an face viz: whether fact sustained, ground review is the State’s of de- accused obtains a recommendation appellate judgment of lower court is re the exchange plea of adjudication in for a ferred versed, appeal in is or this cause subjects him to the guilty or nolo contendere to be dered dismissed. proviso of Article requirements of the former 44.02, V.A.C.C.P., Rule now in recodified CLINTON, Judge, dissenting on state’s convicting The court had made discretionary petition for review. lawof that because recommended conclusion Hernande2; adju- Dillehey bargained v. for deferred majority represents that in had State, dication, permission we but not obtained the (Tex.Cr.App.1991), had appeal, he had no promulgation held that the of of Article of the court to effect adjudication proba- 44.01(j), appeal “to when deferred V.A.C.C.P. was make deferred his and, subsequently adjudication appealable by impli tion was revoked and he orders cation, legal rejected conclusion. appeals prescribed such as convicted. restrict 40(b)(1).” that, express Slip op. we noted contem- [Tex.R.App.Pro.,] Rule First 42.12, 3d(b), § now clearly say plation 4. It is that Dille- of former Article accurate 5(b), punishment” in any § of hey placing held on “assessment that an order a defendant “[ajfter adjudication adjudication only occur under Article can deferred current deferred Id., 42.12, guilt.” § at 702. We appealable,1 is an V.A.C.C.P. now places though not. that a trial court that an accused previously we had held it was held (Tex. State, not McDougal does v. 610 S.W.2d 509 on deferred See of for- majority suggest punishment” under terms Cr.App.1981). But if the is “assess Dillehey the trial court has “implication” is mer Article 44.02 because there some Moreover, the trial yet him. placing an of an order the defen “convicted” subject punishment, consistent does assess on is court dant deferred 37.07, 3, V.AC.C.P., § until “af- proviso Article the restrictions course, notion, ac- 40(b)(1), finding Of an agree. guilty.” ad cannot ter adju- on accepted placed who has deferred uncritically cused been vanced the State course, Washington quoting on the strictly speaking, pra, at Senator not the order 1. Of it is adjudica- adoption placing advocating amend- itself an accused of an Senate Floor appealable Article tion that is under ultimately became to Senate Bill 762 ment 44.01(j), rulings “legitimate pretrial but on some essentially 44.01(j). What Article Article admis- where the court has ruled on the issue ... interlocutory appeal provides such mat- is an sibility of matter some evidence some other entry placing ac- upon the an order ters parties may have been that either or both feels probation. cused on deferred dispositive Dillehey su- case[J" Second, dication point, has been neither convicted and more to the the State guilty. Accordingly, nor found we argues promulgation concluded: that with of Article 44.01(j), contemplates fairly 44.02 an “Article we cannot adhere to our con after assessment of and ‘sen- adjudication probation clusion that deferred proviso tencing.’ The bars a all, defendant “punishment.” is not After Article prosecuting from an ‘who has been 44.01(j) expressly permits an “where [upon plea convicted or nolo con- is accordance tendere before the and the court court] adjudication provisions with” the deferred ‘punishment assesses does not ex- [that] suggestion Article 42.12.2 The is prose- ceed [what is] recommended Legislature placing now considers an order agreed cutor and defendant an adjudication proba accused on deferred attorney1 except provided. his Since — punish an comprise “assessment of conforming plea bargain for ment,” any appeal and that that order from is not subject should therefore be to the strictures order and does not assess 40(b)(1) proviso of the Rule if it was bar 37.07, 3(a) meaning within Article gained Legislature regards for. That (d), contemplation and within of Arti- adjudication probation species aas cle it follows that a defendant is not underscored, “punishment” the State precluded prosecuting after maintains, by fact it that in 1993 amend judgment and sen- 5(a) 42.12, § ed Article so that now ex tencing merely initially because he bar- pressly permits, contrary prior decisional gained adjudication....” for deferred law, Shillings, see Ex 641 S.W.2d 538 Id., (emphasis supplied at 703 Hernan- (Tex.Cr.App.1982), of a the assessment term dez). we For all these reasons determined as a confinement condition of deferred adjudica- placing that an accused on deferred 1993, adjudication probation. 73rd Acts probation “punish- does not constitute 4.01, 1, 3719, Leg., p. Sept. § ch. cff. him, ing” having bargained and his for that 1993. him, subject disposition upon does later adjudication probation deferred revocation of Neither of events convinces me that these conviction, subsequent and to limitations holding we should abandon the of Hernan- appeal proviso in contained former Dillehey dez. It is true that after an order Article 44.02. adjudication probation deferred now only that appealable. itself This means argues subsequent that State two proviso question in now arises whether the events have combined to our conclusion make 40(b)(1) apply Rule an interlocu- will such First, course, in Hernandez obsolete. our tory appeal. it But does not answer opinion Dillehey an in ruled that accused question way,3 it either much less does re- may appeal placing an order him on deferred question appeal adjudication. Therefore, solve the related whether extent to the adjudication following of deferred in revocation grounded the rationale Hernandez is entry judgment of a of convic- conforming “an and the fact that 40(b)(1) subject provi- bargain adjudication is not an tion is also the Rule for deferred order[,]” longer Only its appealable it so. if the is correct in asser- is no viable. (essentially emphasis supplied when an takes his interlocu- 2. All otherwise indicat- accused unless tory) appeal imposing ed. an order deferred from pursuant adjudication probation to Article order," 44.01(j), only “appealable there is I to think an from an order am inclined proviso judgment. on its face the Because imposing is not deferred order,” “appealable I does not a mere embrace subject proviso, Rule at least on to the presume appeal requirements con- the notice proviso language itself. the basis of of the "appealable apply any tained therein do not that notice of shall be rule states judgment. a full-blown This is order” less than demonstrates the accused’s desire sufficient if it Legislature considers true whether not the or judgment other "the from contrast, “punish- begins: to be proviso deferred By "but if order." judgment Naturally, ment was rendered...." assessed.” 5(a), 42.12, § now to Article amendment adjudication probation now 1993 tion that deferred a condition of de- allowing confinement as can we “punishment assessed” constitutes specifical- probation, was applies, to that ferred proviso that the conclude “punitive,” it suffers the ly meant to render accordingly turn. issue I deficiencies. constitutional same 44.01(j) grants enough, Article now True legislative glean prefers immediately prose- The Court the accused choice of lan- the unfortunate as- intent from “where the cute an seriously, that is guage in Article provision in with” the sessed is accordance likelihood, an oth- fatally, at odds with adjudi- in all 42.12 that authorizes deferred Article functional, historically integral, regard But I this as erwise probation. cation adjudica- implementing for misleading scheme more than an unfortunate and disrup- in Rather than risk such conveyance relatively simple notion tion Texas. law, interlocutory I adhere to our tion in the would that an accused take an Hernandez, that an and continue to hold placing an order him on de- following revocation appeal from a conviction probation, notwithstand- ferred adjudication probation is not sub- actually fact that he has not suffered 40(b)(1), him, ject leastwise proviso to the judgment against of conviction the deferred of the fact that any “punishment as- not on account hence has not had product adjudication probation itself was the Dillehey, supra, sessed.” See at 624-25. insists plea bargain. Because the Court imagine Legislature meant some- cannot otherwise, holding I dissent. abrogate provisions of on how to other bedrock Procedure, the Code of Criminal invoked JJ., supra, clearly MALONEY, join. indi-

Ex BAIRD and imposed any “punishment” cate is not under OVERSTREET, Judge, dissenting on finding until “after a circumstances discretionary review. petitions state’s 2(b) 37.07, guilty[,]” supra, §§ Article & and, counts of specifically Appellant was convicted two the context of deferred “[ajfter adjudication, forgery separate in two indictments until years 5(b), punishment at ten guilt[,]” supra. trial court assessed Article offense. and a fine for each Legislature’s should not construe the error confinement $500 Appeals reversed and remand describing “punish- The Court of hearing. v. new Watson ment assessed” in Article to undo the ed for a State, (Tex.App 836 Paso import statutory of the overall scheme in one 884 S.W.2d . —El 1994) State, No. 08-92-00224-CR swoop. fell and Watson v. ( 1994). granted Tex.App. Paso — El Moreover, adjudica regard if we discretionary review petitions for the State’s “punishment,” a tion form general ap to consider whether a notice constitutionality question we call into ap jurisdiction upon a court of peal confers Af the entire deferred scheme. upon a peals to review a conviction based all, it has called that to ter been “axiomatic” agreement in which a defendant re plea punish adjudica an accused before a formal adjudication probation and ceived deferred guilt tion of violates the Due Process Clause upon adjudicated and sentenced was later of the Fourteenth Amendment to the United guilty. plea that initial Green, parte 688 States Constitution. Ex plea guilty to two (Tex.Cr.App.1985), quoting Appellant entered a 555 S.W.2d Martin, 253, 269, 104 charges passing forged a check in violation 467 S.Ct. Schall v. U.S. 32.21(a)(1)(B). Code, 207, (1984), § 2403, 2412, Penal L.Ed.2d 220 which of V.T.C.A 81 agreement, trial court Wolfish, plea to a upon in turn Bell v. 441 U.S. Pursuant relied 16, 1861, 1872, 16, placed Appellant and n. 60 deferred n. 99 S.Ct. (1979). 447, 466, years probation. filed on three The State L.Ed.2d n. 16 have March, 1992, Ap- adjudicate. In due motion to doubt would hold it also violates we I, plea of true to the State’s pellant of the entered course of law under Article 19 trial allegations sentenced that the and was Texas To the extent Constitution. 718 Appellant appealed guilty im plea). Appeals

court. the sentence The Court of then posed, contending that the trial court violat Appellant’s complaint reasoned that referred right by prejudg ed her to due course of law to the manner which was as- responded her sentence. The State sessed, which occurred after Appeals jurisdiction the Court of was without Therefore, guilt. her was not barred Appellant’s appeal to even consider Watson, by the Helms rule. 884 S.W.2d at she did file notice of which 838, State, citing Jack 871 S.W.2d 741 complied Tex.R.App.Pro. (Tex.Cr.App.1994) (holding plea Appeals rejected argu Court of the State’s agreed pun- without an recommendation on ment and determined that trial court right appellate ishment does not waive Appellant’s punishment, not based non-jurisdictional arising issues review upon adjudica the evidence adduced at the subsequent entry guilty plea); hearing considering full after Watson, slip op. at 2. range punishment, pre but rather with a judged question The State’s for review asks: Appeals sentence. The Court of con Appellant’s right cluded this violated general Whether a notice of invests law, due course of reversed the decision of jurisdiction appeals the court of pun the trial court and remanded for a new upon review a conviction based hearing. ishment agreement pursuant the defen- which Appeals’ Pivotal in the Court of decision adjudication proba- dant received deferred require was its conclusion that the notice tion, adjudicated but who was later 40(b)(1) Tex.R.App.Pro. app ments of did not upon sentenced to a ly.1 Appeals The Court of reached this years plea agreement[?] term of without by finding original conclusion that the order majority agrees with the State’s conten- deferring punish did not assess tion that continued reliance Hernandez ment. The Court of also noted no inis error. The State notes that this Court plea bargain existed at the time was held in Hernandez that Rule did not adjudicated, actually when was apply negotiated plea to an from a Watson, 837; assessed. be- which resulted Watson, slip op. Relying at 2. on this deferring adjudication cause an order Court’s Ex pun- not considered (Tex.Cr.App.1986), S.W.2d 700 the court con ishment. The observes that a defen- Appellant’s appeal gov cluded that was not 40(b)(1), dant now has the from an erned but rather State, deferring order at the time the rule announced in Helms v. 484 S.W.2d 44.01(j), Article (Tex.Cr.App.1972) (declaring non-jur all is entered. V.A.C.C.P.;2 Dillehey v. 815 S.W.2d isdictional defects are waived where the con out, points voluntarily (Tex.Cr.App.1991). viction obtained entered The State 40(b)(1) granted permission ap- Tex.R.App.Pro. provides pertinent to in that the trial court (cid:127) part: peal specify or shall that those were matters by ruled on before raised written motion and (1) Appeal perfected by is in a criminal case trial. giving timely appeal.... notice Notice of of given writing shall be in with the clerk 44.01(j) provides: 2. Art. of the trial court. Such notice shall be suffi- Nothing with the cient if it shows the desire of the defendant to in this article is to interfere judgment right proce- to under the from the or other defendant’s order, Tex.R.App.Pro. judgment upon [now rendered dures of Article 44.02 40(b)(1)] but if the was right plea pursuant this code. The defendant’s or nolo contendere his 1.15, Procedure, prosecut- to under Article 44.02 to Article Code of Criminal by punishment punishment defendant where the and the assessed does not exceed ed (a), punishment by prosecu- assessed is in accordance with Subsection recommended 5], 42.12 of agreed Section 3d Section Article [now tor and to the defendant and his code, any prosecute attorney, an for a as well as other in order to compliance nonjurisdictional with Article 44.02 of or that occurred assessed in defect error prior entry plea of the the notice shall state this code.

719 capacity prescribed 3, 44.01(j) his to demonstrate majority agrees that Art. and the period. during specified good punishment, and as behavior refers to is reversed If the movement holding Dillehey implicit- he succeeds that this Court’s fail, however, should he punish- disappears; adjudication is ly holds that deferred in a criminal action contin- appeal- are the movement by holding that such orders ment of trial. the normal incidents able, used in ues with undermining the rationale thus that when Hernandez Hernandez. It adds citing at McIn 705 S.W.2d decided, not one of the confinement was State, (Tex.Cr.App. 413 tyre v. 587 S.W.2d of de- probationary conditions permitted 5(e). Thus, 42.12, 1979); § Art. see also 42.12, Article adjudication, but ferred im made between distinction 5, V.A.C.C.P.,4 con- was amended to allow posed plea where after adjudica- finement as a condition ordered, imposed “punishment” and the is three argues that these tion. The State but probation is ordered where in Her- abrogate the rule announced events significant. guilt is deferred is still 40(b)(1) nandez, ap- Tex.R.App.Pro. 44.01(j), of Art. defen- With the enactment therefore plies in the instant case. The State appeal from an given the dants were Appellant failed concludes adjudication. Dillehey, deferring requirements of Rule comply with the notice glance, this too at 626. At first S.W.2d 40(b)(1), Eighth Appeals Court of Hernan- to undermine the rationale seems jurisdictional to consider defects authorized However, cursory reading of even a dez. State, only. Lyon v. 872 S.W.2d See limited to Dillehey scope that its is reveals (Tex.Cr.App.1994); and Davis v. legislative enact- inspection of the intent (Tex.Cr.App.1994). design to 44.01(j), Legislature’s and the majority Eighth adjudi- placed holds that the on defendants allow reaching the merits of opportunity erred to immedi- cation by appel- nonjurisdietional complaints rulings pretrial raised motions ately appeal on majority ma- appealed compliance lant. at 715. The See were filed and which 40(b)(1) Id., jority is mistaken that Hernandez has Rule [now ]. with Art. 44.02 appeals arising limit Dillehey purport continued use or effect on 624-626. does occurring adjudica- right to proceedings speak after a defendant’s or otherwise adjudi- of Art. guilt. Despite tion of the enactment occur after complain of errors which Art. express and amendments to which nor lan- guilt; cation of does refer to deferred guage of Rule thereof, a condition and allow confinement as requirement of The notice “punishment” in a deferred non-jurisdictional oc- applies defects which imposed order is still different than that entry permission of a if prior curred regular order of after court, if the matters granted guilty or nolo contendere. When a defen- motion and ruled were raised written placed pro- dant is entry plea. language This before bation, judgment is not entered and changed, is still has not and Hernandez Rather, imposed. sentence is not precluded from A defendant is not sound. appeal after prosecuting developments a criminal [t]he course sentencing, merely judgment and be- temporarily has been stilled action ad- initially bargained for deferred opportunity cause he permitted has accused been by the court of to the determination majority opinion limited 3. See at 714. adjudication proceeds whether it Article, 5(b) pro- may 4. Tex.Code Crim.Pro. original charge. guilt No on the part: pertinent vides in determination. After be taken from this including guilt, proceedings community all su- On violation of a condition (a) punishment, pronouncement of pervision imposed of this assessment sentence, under Subsection supervision, section, granting community may defendant be arrested adju- appeal continue as if the defendant's provided 21 of this detained as in Section guilt hearing had not been deferred. dication defendant is entitled to article. The such, judication some time earlier. As Appeals relying upon did not err in

this Court’s decision in Hernandez.

Furthermore, there

agreement pro- trial court entered when the Appellant

ceeded to 40(b)(1).5 required comply with Rule

Therefore, Appeals the Court of did not ex- jurisdiction considering Appel-

ceed its denying

lant’s motion State’s appeal.

to dismiss the The decision of the

Court of should therefore be af- majority

firmed.6 Because the does not do respectfully

Iso dissent.

BAIRD, J., joins. Motsenbocker, Shafer, Davis,

Robert E. McCollum, Stoker, Inc., Ashley, O’Leary & SERVICES, PRIDE PETROLEUM Odessa, Appellant. for INC., Appellant, Burnett, Burnett, Inc., & Abner Burnett Odessa, Zinn, Antonio, Larry Appel- San Jerry CRISWELL, Appellee. lee. No. 08-95-00023-CV. BARAJAS, C.J., Before and McCLURE Texas, Appeals of Court of CHEW, JJ. El Paso. OPINION CHEW,

March 1996. Justice. Published Part Pursuant (“Pride”) Services, Pride Petroleum Inc. Tex.R.App.P. 90. appeals personal injury judgment rendered (“Criswell”) Jerry in favor of Criswell after a Rehearing April Overruled 1996. jury points appeals trial. Pride on four error, point being that the first allowing testify court erred in Criswell to as designated expert when he had not been such, remaining points of and the three being error the trial court erred overruling motions for directed ver- Pride’s judgment notwithstanding the ver- dict and plea agree- whether 6. State did not raise the issue of I note that the existence of second respect to ment after punishment Appellant prejudged received a sentence result in the to be adjudication, we reach that therefore can not application imposition of Rule issue here. requirements. its notice See there is no indication of a S.W.2d at 703. As plea agreement, second we need not address that today. issue

Case Details

Case Name: Watson v. State

Court Name: Court of Criminal Appeals of Texas

Date Published: May 29, 1996

Citation: 924 S.W.2d 711

Docket Number: 1287-94, 1288-94

Court Abbreviation: Tex. Crim. App.