Hogans, Keith Lashone ( 2005 )

      IN THE COURT OF CRIMINAL APPEALS

                                   OF TEXAS

                                                                 NO. PD-1932-04

                                          KEITH LASHONE HOGANS, Appellant

                                                                             v.

                                                        THE STATE OF TEXAS

                   ON APPELLANT=S PETITION FOR DISCRETIONARY REVIEW

                               FROM THE FOURTEENTH COURT OF APPEALS

                                                             HARRIS  COUNTY

Johnson, J., filed a concurring opinion.

                                             C O N C U R R I N G   O P I N I O N

I concur in the judgment of the Court.  However, I believe that we have consistently misapplied the procedural statute in question, Tex. Code Crim. Proc., Art. 42.12, ' 5(b). 

The plain language of the statute states that no appeal may be taken from the determination by the trial court Awhether it proceeds with an adjudication of guilt on the original charge.@  The plain language does not bar appeal of issues that arose during the proceedings that terminated with a Adetermination@ to proceed to an adjudication of guilt.  We must use the plain language of the statute in our interpretation unless the plain language produces an absurd result that the legislature could not have intended.  Boykin v. State, 818 S.W.2d 782 (Tex. Crim. App. 1991).  Cases such as Wright v. State, 592 S.W.2d 604 (Tex. Crim. App. 1980), and Shields v. State,608 S.W.2d 924 (Tex. Crim. App. 1980), improperly expanded the inability to appeal from the plain language Adetermination@ to include Ahearing,@ Aprocess,@ and Aproceeding@ and thus violated the teachings of Boykin.

Any interpretation that bars all appeals of any issues that arise before the magic words, AI find you guilty,@ are said, opens the door to abuse.  At some point, the inability to appeal procedural issues becomes a constitutional issue.  What if the defendant is denied counsel^[1] or the state presents no evidence of a violation of any condition, but the trial court still adjudicates?  What if the defendant is denied an opportunity to present evidence to rebut the evidence of the state or prevented from cross-examining state witnesses?^[2]  What if the defendant  is jailed for no other reason than that he refused to plead true to the allegations?  At some point, the inability to appeal raises the specter of Aunconstitutional as applied.@  When rights guaranteed by the United States Constitution or the Texas Constitution are abrogated through state law, state law must give way.

If, in a given case, the conduct of the adjudication hearing violated a defendant=s right to counsel, due process, confrontation, equal protection,^[3] or any other constitutional right, the defendant must have some means of challenging the denial of those constitutional rights.  To hold that Art. 42.12, ' 5(b), bars all challenges, whatever their nature, to proceedings that result in adjudication elevates form over substance and produces a truly absurd resultBthat state procedural law overrules the United States Constitution.      

While such extreme abuse is not common, it does occur.  See, e.g., Phynes, supra. No such abuse occurred here.  No constitutional violations are presented. I therefore concur in the judgment.

Filed: November 9, 2005

Publish

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^[1] Phynes v. State, 828 S.W.2d 1 (Tex. Crim. App. 1992).

^[2] Ramon v. State, 159 S.W.3d 927 (Tex. Crim. App. 2004).

^[3] Olowosuko v. State, 826 S.W.2d 940, 942-43 (Tex. Crim. App. 1992) (Overstreet, J., concurring).