Thank you for sharing!

Your article was successfully shared with the contacts you provided.
Click here for the full text of this decision FACTS:On Aug. 31, 1999, appellant pleaded 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 Feb. 13, 2002, appellant’s supervision was extended by two more years, and on Sept. 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. The court of appeals held that the trial court denied appellant his right to counsel at the May 24 hearing by failing to admonish him regarding the dangers and disadvantages of self-representation and by failing to determine whether he was indigent. The court held that this denial rendered void the extension of the supervision period. Relying upon Ex Parte Fulce, 993 S.W.2d 660 (Tex. Crim. App. 1999), 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. HOLDING:The judgment of the court of appeals is reversed and the trial court’s judgment is affirmed. Texas Code of Criminal Procedure Article 42.12, �5(b) provides: ” No appeal may be taken from this determination.” 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 in this case is whether appellant is entitled to seek relief on direct appeal, not by way of habeas corpus. Connolly v. State, 983 S.W.2d 738 (Tex. Crim. App. 1999), and Hogans v. State, 176 S.W.3d 829 (Tex. Crim. App. 2005), do contain language suggesting that jurisdictional claims may be exempt from �5(b)’s prohibition against appeal, but the language is dicta because the issue was not presented in those cases. Griffin v. State, 145 S.W.3d 645 (Tex. Crim. App. 2004), the court says, suggests that there is no “jurisdictional” exception to a prohibition against appeal when the statutory language does not appear to contain one. The court concludes that 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. OPINION:Keller, P.J.; Meyers, Price, Womack, Hervey, Holcomb and Cochran, J.J., joined. Johnson and Keasler, J.J., concurred in the result. Cochran, J., filed a concurring opinion in which Meyers, Hervey and Holcomb, J.J., joined. CONCURRENCE:Cochran, J., filed a concurring opinion in which Meyers, Hervey, and Holcomb, J.J., 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.”

Want to continue reading?
Become a Free ALM Digital Reader.

Benefits of a Digital Membership:

  • Free access to 1 article* every 30 days
  • Access to the entire ALM network of websites
  • Unlimited access to the ALM suite of newsletters
  • Build custom alerts on any search topic of your choosing
  • Search by a wide range of topics

*May exclude premium content
Already have an account?


ALM Legal Publication Newsletters

Sign Up Today and Never Miss Another Story.

As part of your digital membership, you can sign up for an unlimited number of a wide range of complimentary newsletters. Visit your My Account page to make your selections. Get the timely legal news and critical analysis you cannot afford to miss. Tailored just for you. In your inbox. Every day.

Copyright © 2021 ALM Media Properties, LLC. All Rights Reserved.