Kendall v. State

DAUPHINOT, Justice,

concurring.

The thoughtful and well-written majority opinion again brings up a dilemma facing the intermediate courts of appeal. The Court of Criminal Appeals instructs us that questions involving the constitutionality of a statute upon which a defendant’s conviction is based should be addressed by courts of appeal, even when such issues are raised for the first time on appeal.¹ Yet, when Appellant argues in his second point of error that the deferred adjudication statute² violates due process, we rely on Phynes v. State³, which instructs us of the prohibition against a direct appeal of the determination to adjudicate. This court has equated “the determination to adjudicate” with “the adjudication process.” In his concurrence to the majority opinion in Olowosuko v. State, Judge Overstreet suggests that the proper remedy, if any, is by way of a post-conviction writ of habeas corpus.⁴

The Court of Criminal Appeals has never spoken as a body to address the appropriate vehicle for constitutional- complaints regarding the adjudication process when a person has been placed on deferred adjudication community supervision. Consequently, we are unsure whether to follow the directive that mandates our considering the constitutionality of the statute when raised for the first time on appeal or whether we ease the burden of our caseload by acknowledging a requirement that all complaints, constitutional or otherwise, regarding either the determination to proceed to adjudication or the process of proceeding to adjudication be addressed exclusively by the Court of Criminal Appeals.

While others of clearer vision may understand the role of the intermediate court, I confess I struggle in a sea of confusion. Because other appellate courts at times address the merits of complaints regarding either the determination to proceed to adjudication or the process of proceeding to adjudication,⁵ I suspect that I am not totally alone in my confusion. And for these reasons I concur, in the hope that the Court of Criminal Appeals will speak as a body to lift this particular veil from my understanding.

1 . Rabb v. State, 730 S.W.2d 751, 752 (Tex.Crim.App.1987).

2 . Tex. Code Crim. Proc. Ann. art. § 42.12(5)(b) (Vernon Supp.1996).

3 . 828 S.W.2d 1, 2 (Tex.Crim.App.1992); see also, Olowosuko v. State, 826 S.W.2d 940, 941-42 (Tex.Crim.App.1992).

4 . 826 S.W.2d at 942 n. 2 (Overstreet, J., concurring); see also, Tex. Code Crim. Proc. Ann. art. 11.07 § 3(b) (Vernon Supp.1996).

5 . See, e.g., Gilbert v. State, 852 S.W.2d 623, 625-26 (Tex.App.—Amarillo 1993, no pet.); De Leon v. State, 797 S.W.2d 186, 187-88 (Tex.App.—Corpus Christi 1990, no pet.); Eldridge v. State, 731 S.W.2d 618, 619-20 (Tex.App.—Houston [1st Dist.] 1987, no pet.); Dahlkoetter v. State, 628 S.W.2d 255, 257-58 (Tex.App.—Amarillo 1982, no pet.).