McDougal v. State

610 S.W.2d 509, 1981 Tex. Crim. App. LEXIS 878

• Court: Court of Criminal Appeals of Texas
• Decided: January 21, 1981
• Docket: 66249
• Status: Published

Opinions

OPINION

DALLY, Judge.

This is an attempted appeal from an order deferring adjudication and placing Appellant on probation for 12 months. The record reflects that Appellant was charged by information with the offense of driving while intoxicated. Art. 6701/ -1, V.A.C.S.

The record is before us without a transcription of the court reporter’s notes or bills of exception. No brief was filed in Appellant’s behalf pursuant to Art. 40.09, Sec. 9, V.A.C.C.P. There is no indication of indigency. However, in reviewing the record in the interests of justice under Art. 40.09, Sec. 13, we have discovered a jurisdictional defect which requires that this appeal be dismissed.

The record reflects that the appellant entered a plea of nolo contendere and was admonished of the consequences of his plea by the trial court. The trial court heard evidence and found that it substantiated the appellant’s guilt. The trial court, however, found that the best interests of society and the appellant would be served by deferring further proceedings without entering an adjudication of guilt and placing the appellant on probation for 12 months under the provisions of Art. 42.13, Sec. 3d (misdemeanor deferred adjudication). No motion requesting final adjudication was ever filed by the appellant. Notice of appeal was given in open court from the order deferring adjudication. See also Art. 42.12, Sec. 3d (felony deferred adjudication).

In Williams v. State, 592 S.W.2d 931 (Tex.Cr.App.1979) and Wright v. State, 592 S.W.2d 604 (Tex.Cr.App.1980), this Court held that it had no jurisdiction to review the decision to proceed to adjudication under Art. 42.12, Sec. 3d. See also Shields v. State, 608 S.W.2d 924 (Tex.Cr.App.1980).

Both Art. 42.12, Sec. 3d and Art. 42.13, Sec. 3d specifically provide that no appeal may be taken from a trial court’s determination to proceed with an adjudication of guilt. We conclude that the clear import of these statutory provisions is likewise to preclude appellate review of an order deferring adjudication. See George v. State, 557 S.W.2d 787 (Tex.Cr.App.1977). If a defendant is dissatisfied with the decision to defer adjudication or with the terms and conditions of the order, his proper remedy is to move for final adjudication as provided in Art. 42.12, Sec. 3d(a) and Art. 42.13, Sec. 3d(a). After adjudication of guilt, a defendant’s normal appellate remedies are available to him.¹

The purported appeal from an order deferring adjudication and placing appellant on probation is dismissed for want of jurisdiction.

1 . See also Walker v. State, 557 S.W.2d 785 (Tex.Cr.App.1977) and McNew v. State, 608 S.W.2d 166 (Tex.Cr.App. opinion on appellant’s motion for rehearing, delivered 1980).