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Click here for the full text of this decision FACTS:In 2001, Nakeesha Durgan pleaded guilty to delivery of less than 1 gram of cocaine in a drug-free zone, i.e. within 1,000 feet of the premises of an elementary school. Pursuant to a plea agreement, the trial court deferred Durgan’s adjudication and placed her on five years of community supervision. The terms of supervision included a requirement that Durgan take any medication prescribed by the Mental Health/Mental Retardation Center or by her physician and that she submit to a “TAIP Evaluation and any recommended treatment program that they recommend[.]“ Approximately two years later, the state filed a motion to adjudicate based on allegations that Durgan had violated her community supervision. As part of an order imposing additional terms of supervision, the trial court ordered Durgan to reside in a “Special Needs Substance Abuse Felony Punishment Facility” for a period not to exceed one year and continued her on supervision. In 2004, the state filed a second motion to adjudicate, which alleged that Durgan had failed to attend and successfully complete the substance-abuse-treatment facility’s requirements. The trial court found that Durgan had violated the terms and conditions of her community supervision as alleged, found her guilty and sentenced her to 10 years of imprisonment. Durgan filed a motion for reconsideration or, in the alternative, a new trial. That motion asserted that the judgment and sentence should be set aside and a new trial granted, because new and material evidence showing Durgan’s history of mental and behavioral problems had been discovered since trial and that, pursuant to Texas Code of Criminal Procedure Art. 46B.003, such evidence raised an issue regarding whether Durgan was competent at the time of the hearing on the motion to adjudicate guilt. After a hearing, the trial court denied Durgan’s motion and entered an order reflecting that Durgan’s motion be in all things denied. On appeal, Durgan raised several points of error, including a claim that the trial court erred in not having Durgan evaluated to determine if she was competent to answer the allegations raised during a revocation hearing. The 9th Court of Appeals held that an appeal that involves the defendant’s competence at the adjudication hearing is an appeal involving the trial court’s determination of whether to proceed with adjudication. As a result, the 9th Court dismissed the issue, because Art. 42.12, �5(b) precludes an appeal of a trial court’s decision to adjudicate guilt. The CCA granted Durgan’s sole ground for review. HOLDING:Reversed and remanded. Durgan asserted that the 9th Court erred in not considering the competency of the defendant or staying the proceedings for the purpose of conducting a competency review. Durgan argued that, while under Art. 46B the Legislature “has mandated to the courts a duty to conduct an informal inquiry whether there is some evidence from any source that the defendant is incompetent to stand trial,” if the defendant accepts deferred adjudication then “the Legislature has taken away the [d]efendant’s ability to appeal the failure of the trial court to follow through with its mandated duty to determine if a defendant is incompetent.” Durgan argued that the competence inquiry and any further required competence proceedings under Chapter 46B are separate and distinct from the decision to proceed with an adjudication of guilt. She asserted that the two statutory duties should have separate appellate review. Article 42.12, �5(b), precludes appellate review of a decision to adjudicate. Under �5(b), upon violation of a condition of deferred-adjudication community supervision, a defendant is entitled to a hearing limited to the court’s determination of whether it should proceed with an adjudication of guilt on the original charge, and “[n]o appeal may be taken from this determination.” The CCA noted its previous holding that if an appeal raises a claim of purported error in the decision to adjudicate guilt, a court of appeals should dismiss that claim without reaching the merits. But the CCA stated that �5 does not bar review of complaints that do not challenge the decision to adjudicate. An assertion that a defendant was not competent at the time of the adjudication hearing, the CCA stated, is such a complaint; it raises a preliminary due-process issue that must be resolved before the adjudication process may begin. Because it is a separate and distinct inquiry, the CCA stated, courts of appeals have jurisdiction to resolve such issues. OPINION:Johnson, J., delivered the opinion of the court in which Meyers, Price, Hervey, Holcomb and Cochran, JJ., joined. Womack, J. did not participate. CONCURRENCE:Keller, P.J., filed a concurring opinion. “I continue to adhere to my position in [the 2005 CCA decision] Hogans v. State that the appealability of a matter under the deferred adjudication statute depends entirely upon the relief sought. (1) To the extent appellant’s”competency to stand trial’ claim challenges the trial court’s ability to determine his punishment, the claim is appealable.” DISSENT:Keasler, J., filed a dissenting opinion. “I respectfully dissent. The majority’s holding that the court of appeals erred in holding that it lacked jurisdiction to consider Durgan’s competency claim under Texas Code of Criminal Procedure Article 42.12, Section 5(b) is at odds with our case law interpreting the prohibition against appeal from a trial judge’s determination to proceed with adjudication of guilt.”

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