McFarland v. State

727 S.W.2d 43

Opinions

OPINION

PER CURIAM.

Appellant was found guilty by a jury of the offense of driving while intoxicated. The trial court assessed punishment at forty-five (45) days in jail, probated, and a $750.00 fine.

Initially, we are confronted with a problem concerning our jurisdiction in this cause. The record before us does not contain a judgment adjudicating appellant’s guilt. See TEX.CODE CRIM.PROC.ANN. art. 42.01, § 1(8) (Vernon Supp.1987). In fact, the instrument contained in the transcript does not purport to be a judgment. The pertinent portion of this instrument recites the following:

IT IS THEREFORE CONSIDERED, ORDERED AND ADJUDGED, that the finding of guilt herein SHALL NOT BE FINAL, THAT NO JUDGMENT BE RENDERED THEREON, and that Defendant be, and he is hereby placed on probation in this cause.... (emphasis added)

The instrument appears to be an order granting deferred adjudication. No appeal lies from an order deferring adjudication. McDougal v. State, 610 S.W.2d 509 (Tex.Crim.App.1981). We also note that this was a jury trial on a plea of not guilty and was a trial for violation of TEX.REV.CIV. STAT.ANN. art. 67011-1 (Vernon Supp. 1986). Under these circumstances, at the time of appellant’s trial, appellant was not eligible for deferred adjudication. See TEX.CODE CRIM.PROC.ANN. art. 42.12, § 3d(d) (Vernon Supp.1987). In light of all the circumstances presented, we have no jurisdiction in this cause.

The appeal is dismissed.