Irving v. State

922 S.W.2d 959, 1996 Tex. Crim. App. LEXIS 74, 1996 WL 280053

Opinions

OPINION ON STATE’S PETITION FOR DISCRETIONARY REVIEW

PER CURIAM.

On November 4, 1987, Appellant pled guilty to burglary of a habitation. The trial court deferred adjudication of guilt and placed Appellant on probation for six years. On September 17,1991, the trial court granted Appellant’s “MOTION TO DISMISS FOR MENTAL HEALTH COMMITMENT,” which stated that the pending criminal charges were dismissed. Despite this dismissal order, on December 18, 1991, the State filed a motion to adjudicate, which motion was signed by the same trial judge who had signed the dismissal order. Subsequently, the State filed an amended motion to adjudicate and on August 14, 1992, the trial court held a hearing and adjudicated Appellant’s guilt. At the hearing no mention was made of the dismissal order. The court sentenced Appellant to confinement for six years.

The Court of Appeals held that the dismissal order was void because the trial court had no authority to dismiss the case without the prosecutor’s consent and no statute, common law, or constitutional provision authorized the dismissal. Irving v. State, 879 S.W.2d 220, 222 (Tex.App.—Houston [14th] 1994). See State v. Johnson, 821 S.W.2d 609 (Tex.Cr.App.1991). However, the court found that because the State never appealed that void order or reindicted Appellant, the order became valid. Irving, 879 S.W.2d at 222. Accordingly, the court reversed the conviction, holding that the trial court had no jurisdiction to adjudicate Appellant’s guilt. Id.

We granted the State’s petition for discretionary review to consider whether the State’s failure to appeal a void dismissal order caused that order to become valid and whether the trial court had jurisdiction to act after it entered the void order. However, the dismissal order is not void because the trial court had statutory authority to dismiss Appellant’s deferred adjudication probation. Article 42.12, § 3d(c), V.A.C.C.P. (1979).¹ Because the dismissal order was not void, we need not address the State’s ground for review. But see Hoang v. State, 872 S.W.2d 694,. 698-699 (Tex.Cr.App.1993); Johnson, 821 S.W.2d at 612-614; Ex parte Spaulding, 687 S.W.2d 741, 743 (Tex.Cr.App.1985).

With these comments, we affirm the judgment of the Court of Appeals.

Footnotes

1

. This provision stated in relevant part: "The court may dismiss the proceedings and discharge the defendant prior to the expiration of the term of [deferred adjudication] probation if in its opinion the best interest of society and the defendant will be served." The provision is currently codified, with some changes, at Article 42.12, § 5(c) (1996).