Davis v. State

195 S.W.3d 708, 2006 Tex. Crim. App. LEXIS 1283, 2006 WL 1750357
CourtCourt of Criminal Appeals of Texas
DecidedJune 28, 2006
DocketPD-0078-05
StatusPublished
Cited by264 cases

This text of 195 S.W.3d 708 (Davis v. State) is published on Counsel Stack Legal Research, covering Court of Criminal Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Davis v. State, 195 S.W.3d 708, 2006 Tex. Crim. App. LEXIS 1283, 2006 WL 1750357 (Tex. 2006).

Opinions

KELLER, P.J.,

delivered the opinion of the Court

in which MEYERS, PRICE, WOMACK, HERVEY, HOLCOMB and COCHRAN, JJ., joined.

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.1 The question before us is whether there is an exception to that prohibition for claims that attack a trial court’s jurisdiction to act. In this case, appellant alleges that he was denied counsel at an earlier hearing at which the term of his supervision was extended and that the lack of counsel caused the extension and the subsequent adjudication both to be void. We hold that there is no jurisdictional exception to the prohibition against appealing the determination to adjudicate guilt.

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.2 Despite the existence of a written waiver of appeal from the adjudication hearing, the Court of Appeals concluded that it could consider appellant’s claim because the waiver was invalid3 and because the claim involved an error unrelated to appellant’s conviction.4 The court did not, however, discuss whether the claim was barred by the statutory prohibition against appeal from a trial court’s determination to adjudicate guilt.5

Regarding the merits of the claim, the Court of Appeals held that the trial court [710]*710denied appellant his right to counsel at the May 24th hearing by failing to admonish him regarding the dangers and disadvantages of self-representation and by failing to determine whether he was indigent.6 The court held that this denial rendered void the extension of the supervision period.7 Relying upon Ex parte Fulce,8 the appellate court concluded that, because the subsequent adjudication of guilt occurred outside of the authorized period of supervision, the adjudication itself was also a nullity.9

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.”10 We have recently reaffirmed that this language means that “the courts of appeals do not have jurisdiction to consider claims relating to the trial court’s determination to proceed with an adjudication of guilt on the original charge.”11 This means, for one thing, that an appellate court cannot consider on appeal a claim that the defendant’s right to counsel was violated at the adjudication hearing.12 The present case involves an alleged violation of the right to counsel. The question is whether the timing of the alleged violation changes the outcome of the ease. We find that it does not.

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.” 13 We first address the question of whether the May 24th determination to extend the term of supervision was independently ap-pealable.

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.14 There is no legislative authority for entertaining a direct appeal from an order modifying the conditions of community supervision.15 A complaint about a modification can, however, be raised in an appeal from a revocation if the validity of the revocation depends on the validity of the modification. In Rickets v. State, the defendant’s conditions of probation were modified to impose an additional condition.16 His probation was later revoked for violating that added condition. He complained on appeal from the revocation that the added condition was too vague to be enforced. We held that Rick-els was entitled to complain about the added condition of probation at that time because he had no opportunity to object at [711]*711the time it was imposed.17 Implicit in our opinion was the understanding that the modification was appealable only because it affected the validity of the later revocation proceeding. A complaint about a condition that was not a basis for revocation, for instance, would not have been considered.

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.18 It follows from our reasoning in Basaldua, and the result in Rickels, that an order modifying the terms or conditions of deferred adjudication is not in itself appealable.

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.”19 But Fulce is not controlling because it is a habeas case20 and § 5(b) does not act as a bar in habeas proceedings.21

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Cite This Page — Counsel Stack

Bluebook (online)
195 S.W.3d 708, 2006 Tex. Crim. App. LEXIS 1283, 2006 WL 1750357, Counsel Stack Legal Research, https://law.counselstack.com/opinion/davis-v-state-texcrimapp-2006.