Davis v. State
Davis v. State
Opinion of the Court
delivered the opinion of the Court
We know that in the usual case there is no appeal from a trial court’s determination to adjudicate guilt because there is a statutory prohibition against it.
I. BACKGROUND
A. Facts
On August 31, 1999, appellant pled guilty to indecency with a child. Pursuant to a plea agreement, he was placed on deferred adjudication for two years. On May 18, 2001, the trial court decided to review the progress of appellant’s supervision but recessed to give him the opportunity to obtain counsel. When the hearing was convened six days later, appellant was without counsel, but he had consulted an attorney about the matter and indicated that he was ready to proceed. Testimony at the hearing did not establish any violation of the conditions of community supervision. Appellant was, however, shown to have given deceptive responses on two out of four polygraph examinations, and the trial court extended the period of appellant’s supervision by one year. On February 13, 2002, at a hearing at which appellant was represented by counsel, his supervision was extended by two more years, and on September 19, 2002, the State filed a motion to adjudicate. After appellant pled true to several of the State’s allegations, the trial court adjudicated guilt and sentenced appellant to ten years in prison.
B. Court of Appeals Opinion
Appellant appealed, claiming that the trial court lacked jurisdiction to adjudicate guilt because the first purported extension of community supervision on May 24th was a nullity due to the absence of counsel.
Regarding the merits of the claim, the Court of Appeals held that the trial court
II. ANALYSIS
With regard to a trial court’s adjudication of guilt, Article 42.12, § 5(b) provides: “No appeal may be taken from this determination.”
Some aspects of a deferred adjudication proceeding are appealable; some are not. “[A]n appellate court must sort out various rulings a trial court may make in the course of a deferred adjudication proceeding to determine those which the Legislature provided a right to appeal.”
In Basaldua v. State, we recognized, in the “regular” probation context, that the Legislature has authorized appeal in two instances: (1) from an order granting probation and (2) from an order revoking probation.
Deferred adjudication is analogous up to a point. With regard to deferred adjudication, the Legislature authorized appeal of only two types of orders: (1) an order granting deferred adjudication, and (2) an order imposing punishment pursuant to an adjudication of guilt.
But unlike with “regular” probation, the Legislature has specifically barred appeal from the determination to adjudicate. There is, therefore, no opportunity on appeal to challenge a modification of deferred-adjudication supervision as a basis for overturning an adjudication.
The question remaining is whether the “jurisdictional” nature of appellant’s claim somehow exempts it from the statutory prohibition against appealing the trial court’s decision to adjudicate, so that the modification may be challenged as part of the appeal from the revocation. The Court of Appeals relied upon Fulce for the proposition that an unauthorized extension of the term of probation renders a revocation outside the original term “a nullity.”
In Connolly, this Court held that § 5(b) barred a claim that the evidence was insufficient to show that the State had exercised due diligence in apprehending the defendant.
In Hogans, we cited Nix v. State
A recent decision in a similar context suggests that we should not find a “jurisdictional” exception to a prohibition against appeal when the statutory language does not appear to contain one.
As with the legislative proviso, the prohibition found in § 5(b) contains no jurisdictional exception. The sentence in question simply says: “No appeal may be taken from this determination.” A jurisdictional attack on the trial court’s determination is still an attack on that determination, and it may not be advanced on appeal.
The judgment of the Court of Appeals is reversed, and the trial court’s judgment is affirmed.
COCHRAN, J., filed a concurring opinion in which MEYERS, HERVEY, and HOLCOMB, JJ., joined.
. Tex.Code Crim. Proc., Art. 42.12, § 5(b). All future references to articles are to the Texas Code of Criminal Procedure.
. Davis v. State, 150 S.W.3d 196, 200-204 (Tex.App.-Corpus Christi 2004).
. Id., passim; see Tex.Code Crim. Proc., Art. 42.12, § 5(b).
. Davis, 150 S.W.3d at 210.
. Id.
. 993 S.W.2d 660 (Tex.Crim.App. 1999).
. Davis, 150 S.W.3d at 210.
. Art. 42.12, § 5(b).
. Hogans v. State, 176 S.W.3d 829, 832 (Tex.Crim.App. 2005).
. Phynes v. State, 828 S.W.2d 1, 2 (Tex.Crim.App. 1992).
. Olowosuko v. State, 826 S.W.2d 940, 941 (Tex.Crim.App. 1992).
. Id.
. 558 S.W.2d 2, 5 (Tex.Crim.App. 1977). But an appeal is now authorized from the denial of an application for writ of habeas corpus under Art. 11.072. No question concerning the invocation of that article is before us in this case.
. 108 S.W.3d 900, 902 (Tex.Crim.App. 2003).
. Id. at 902.
. See Arts. 44.01(j), 42.12, § 5(b); Olowosukho, 826 S.W.2d at 941-942.
. Davis, 150 S.W.3d at 207, 208.
. See Fulce, 993 S.W.2d at 661.
. Ex parte Carmona, 185 S.W.3d 492 (2006).
. 983 S.W.2d 738 (Tex.Crim.App. 1999).
. Id. (citing Prior v. State, 795 S.W.2d 179, 184 (Tex.Crim.App. 1990) and Langston v. State, 800 S.W.2d 553, 554 (Tex.Crim.App. 1990)).
. See Prior and Langston, passim.
. 65 S.W.3d 664 (Tex.Crim.App. 2001).
. 176 S.W.3d at 832 n. 6 (citing Nix, 65 S.W.3d at 667-668).
. Manuel v. State, 994 S.W.2d 658 (Tex.Crim.App. 1999).
. Nix, 65 S.W.3d at 667.
. Id.
. Article 44.01(j) gave defendants on deferred adjudication the same right to appeal as those on regular probation. Id. at 670-671.
. Griffin v. State, 145 S.W.3d 645 (Tex.Crim.App. 2004).
. Id. at 646-647 (discussing former Art. 44.02).
. Id. at 647.
. Id. at 648.
. There are no unresolved issues in this appeal.
Concurring Opinion
filed a concurring opinion in which MEYERS, HERVEY, and HOLCOMB, JJ., joined.
I join the majority opinion with the understanding that appellant, though precluded from raising a claim — alleging the improper extension of his community supervision term — on direct appeal, is not precluded from raising that same claim in a post-conviction writ of habeas corpus.
Reference
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- Thomas J. DAVIS, Appellant, v. the STATE of Texas
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