Hogans, Keith Lashone

      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

Keller, P.J., filed a dissenting opinion.

I would hold that the scope of appellate jurisdiction after adjudication depends upon the relief sought:  appellate courts do not have jurisdiction over claims that seek to overturn the trial court=s adjudication of guilt, but do have jurisdiction over claims that seek a new punishment hearing.  This rule upholds the plain language of the statute and is easy to apply.

                                                                A. Prior Caselaw

Article 42.12, '5(b) provides:

On violation of a condition of community supervision imposed under Subsection (a) of this section, the defendant may be arrested and detained as provided in Section 21 of this article.  The defendant is entitled to a hearing limited to the determination by the court of whether it proceeds with an adjudication of guilt on the original charge.  No appeal may be taken from this determination.  After an adjudication of guilt, all proceedings, including assessment of punishment, pronouncement of sentence, granting of community supervision, and defendant's appeal continue as if the adjudication of guilt had not been deferred.^[1]

Caselaw has often been imprecise in its phrasing of the prohibition against appeal but has always reached results consistent with the Arelief sought@ rule.  The issue was first addressed in Williams v. State, where the defendant challenged the trial court=s adjudication determination by claiming that there was insufficient evidence to support it.^[2]  This Court held that Athe statute clearly provides that the trial court's decision to proceed with an adjudication of guilt is one of absolute discretion and not reviewable by this Court.@^[3] Faced with another sufficiency of the evidence challenge in Wright v. State,^[4] the Court cited Williams for the proposition that Ano appeal may be taken from the hearing in which the trial court determines to proceed with an adjudication of guilt on the original charge.@^[5] The Court gave no explanation for the different wording used to phrase the rule originally expressed in Williams.  Subsequent cases cited both Williams and Wright in holdings or dicta to variously say that the defendant could not appeal the adjudication Adetermination,@ Adecision,@ Ahearing,@ or Aproceedings.@^[6] What was known for sure from the holdings in these cases was that the defendant could not challenge on appeal the rationale for the trial court=s determination.  But the wording of these opinions certainly suggested a broader prohibition of appeal.

Phynes v. State^[7] appears to be the first case in which this Court clearly addressed a challenge to a trial court=s adjudication decision based, not upon a dispute with the trial court=s rationale for adjudication, but upon alleged errors in the adjudication proceedings.  In that case, the defendant complained that the trial court conducted the adjudication hearing while defense counsel was absent.^[8]  In holding that the deferred adjudication statute deprived appellate courts of jurisdiction to address the defendant=s complaint, we said:

[A]s there is nothing in the Texas Constitution which guarantees the right to appeal a criminal conviction, that right is only as provided by the legislature. It naturally follows that when a legislative enactment says an accused may not appeal a determination to adjudicate, there is no right to do so. Therefore, even if appellant's right to counsel was violated, he may not use direct appeal as the vehicle which to seek redress.^[9]             

But we noted that the defendant had claimed no error Awith respect to the punishment portion of the trial court's judgment or the proceedings after the adjudication.@^[10] So, while Phynes barred consideration of an error that occurred during the adjudication hearing, it did so in the context of an appellate claim seeking to overturn the adjudication itself.  The opinion did not purport to address an error occurring in those proceedings but impacting punishment, for which a new punishment hearing was sought, as no such error was alleged. Moreover, the Court=s use of the phrase Apunishment portion of the trial court=s judgment@ to identify the issue not before it, instead of the phrase Apunishment hearing@ or Apunishment proceedings,@ suggests that the Court anticipated that appealable punishment error might include more than just those errors occurring at the punishment stage of the case.

In Connolly v. State, the Court addressed a defendant=s claim that the State failed to exercise due diligence in bringing the defendant to adjudication.^[11] After discussing Williams, Wright, Phynes, and Olowosuko,^[12] the Court stated: AIn all these cases, we have tried to make clear that, given the plain meaning of Article 42.12, ' 5(b), an appellant whose deferred adjudication probation has been revoked and who has been adjudicated guilty of the original charge, may not raise on appeal contentions of error in the adjudication of guilt process.@^[13]  Viewed in isolation in its broadest possible meaning B that no errors occurring during the adjudication phase of the process are appealable B this statement finds support in the text of only one of the four opinions discussed (Wright) and is not required by the results arrived at in any of this Court=s prior cases. On the other hand, if the italicized phrase is understood to really mean Acontentions of error in the adjudication of guilt process on the basis of which the defendant seeks relief from the adjudication determination,@ Connolly=s statement would be more in line with the opinions it discussed.  And the defendant=s claim in Connolly was consistent with claims made in prior cases in that the relief sought was the overturning of the trial court=s adjudication decision.

The final case of importance is Kirtley v. State, where the Court made clear that errors occurring at punishment were not covered by the statutory prohibition against appealing the trial court=s adjudication determination.^[14]  The defendant contended that he was entitled to a new punishment hearing because the court reporter=s record of the original punishment hearing was destroyed.^[15] The Court decided that Phynes was Anot controlling because the defendant there was attempting to appeal a denial of counsel at the proceeding adjudicating guilt@ and said that it had Aspecifically noted that the defendant made no complaint as to the >punishment portion of the trial court's judgment or the proceedings after the adjudication.=@^[16] While one might construe the italicized language as a manifestation of belief that appealability turns upon the nature of the proceeding in which the error occurs, one might also read the language as simply emphasizing that the error in Phynes related to the adjudication of guilt, rather than to punishment.

It is by way of these cases that the Court has now arrived at the question before us.  Given the inexact language in the cases, it is not surprising that we are now considering barring appeal of any and all issues that do not arise strictly from the punishment phase of the proceedings.  It is time to return to the language of the statute.

                                                        B. The Statutory Language

Under Boykin v. State, we interpret a statute in accordance with the plain meaning of its language unless the language is ambiguous or the plain meaning would lead to absurd results that the Legislature could not have possibly intended.^[17] Here the statutory language is straightforward: it says that no appeal may be taken from the Adetermination.@ It does not say that no appeal may be taken from the adjudication Ahearing.@ The plain import of the statutory wording is that a trial court=s decision to adjudicate guilt is immune from appellate review.  Nothing in the language of the statute prohibits the defendant from complaining on appeal that his punishment was improperly assessed because of something improper occurring during the adjudication hearing.

There is another context in which we already classify errors that occur before the punishment proceedings as punishment errors: capital cases.  Under Article 44.29(c), Aerror affecting punishment only@ in a death penalty case results in a new punishment hearing, rather than an entire new trial.^[18]  In Ransom v. State, this Court held that voir dire error, which obviously did not occur at the punishment stage, was nevertheless Aerror affecting punishment only@ where the error involved a challenge for cause on the basis that the juror could not follow the law with regard to the future dangerousness special issue.^[19] By contrast, in non-capital cases, where the relevant statute calls for a new punishment hearing for those errors Amade in the punishment stage of trial,@^[20] the Court determined that, in a trial on both guilt and punishment, voir dire error relating to a punishment issue  required reversal of the conviction and a new trial of the entire case because the error did not occur at the punishment stage, as specified by the statute.^[21]  The Legislature knows how to attach appellate consequences to events occurring during a specific stage of trial.  It could easily have said that no appeal would lie from errors occurring during the adjudication hearing.  Instead, it chose the more narrow prohibition against appealing the adjudication determination.

Moreover, a broad Ahearing@appealability rule undercuts the right of appeal that is recognized in the deferred adjudication statute. As set out above, '5(b) guarantees that, after adjudication, the defendant=s appeal will take place as if adjudication had never been deferred.  This generally means that the defendant gets to appeal the imposition of punishment.  But the reality is that most evidence relevant to punishment is also relevant to the trial court=s decision to adjudicate guilt, and therefore will be admissible at the adjudication hearing.  A Ahearing@ rule allows for anomalous results depending upon when the State decides to introduce a particular piece of aggravating evidence.  The State=s decision to introduce particular evidence at the adjudication hearing could result in depriving the defendant of punishment issues that would have been appealable had adjudication not been deferred, contrary to the Aas if the adjudication of guilt had not been deferred@ language of the statute.

The Court=s hybrid Adirectly and distinctly relates to punishment@ approach is better than a straight Ahearing@ rule, but because so much evidence that is relevant to punishment is also relevant to the adjudication determination, very few things will satisfy the distinctness requirement.  As with the Ahearing@ rule, the hybrid rule will cause appealability to turn upon when the State happened to introduce certain aggravating evidence.

The hybrid rule also turns the straightforward sentence, ANo appeal may be taken from this determination,@ into a complex inquiry into whether a particular claim, despite its presentation at the adjudication phase, distinctly relates to punishment.  The Court says that the proper resolution of the case Alies on the fifty-yard line,@ but in my opinion, and with all due respect, this is not a fifty-yard-line statutory provision.  This is the type of statutory provision that suggests application of a bright-line rule.  And the Arelief sought@ approach is a bright-line rule that is easy to apply.

The Court further contends that a rule without the distinctness requirement would Aeviscerate the '5(b) bar on direct appeals of the decision to adjudicate.@ It is true that a Arelief sought@ rule would permit appeal of many more issues than would the hybrid rule, but the statute already contemplates the possibility of an appeal of punishment issues in any case in which guilt is adjudicated.  And more to the point, I think the Arelief sought@ rule gives effect to the narrow language of the '5(b) bar.  The bar is not against appealing certain issues.  It is against appealing a certain disposition.

                                                                   C. Conclusion

Loose language in an opinion can take on a life of its own.  The touchstone of statutory interpretation must always be the statute itself, and language found in a prior opinion must be evaluated in light of the statute and the fact situation presented in the case.  The trial court=s Adetermination@ is what the statute says cannot be appealed, and prior cases barring appeal have all dealt with attempts to invoke appeal to undo a trial court=s adjudication determination.

I conclude that appealability under '5(b) turns upon the relief sought.  Claims that seek to overturn the adjudication determination are not appealable, but claims that seek a new punishment hearing are.

In the case before us, part of applicant=s ineffective assistance claim alleged that the children=s testimony impacted the trial court=s assessment of punishment, and as a result entitled applicant to a new punishment hearing.  To the extent it made such an allegation, the claim sought relief in the form of a new punishment hearing and was appealable.

I respectfully dissent.

Keller, Presiding Judge

Date filed: November 9, 2005

Publish

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^[1] Tex. Code Crim. Proc., Art. 42.12, '5(b).

^[2] 592 S.W.2d 931, 932 (Tex. Crim. App. 1979).

^[3] Id. at 932-933 (emphasis added).

^[4] 592 S.W.2d 604, 605 (Tex. Crim. App. 1980).

^[5] Id. (emphasis added).

^[6] Shields v. State, 608 S.W.2d 924, 925 (Tex. Crim. App. 1980)(dicta: Aproceedings@); McDougal v. State, 610 S.W.2d 509, 509 (Tex. Crim. App. 1981)(dicta: Adecision@); Daniels, 615 S.W.2d 771, 771 (Tex. Crim. App. 1981)(sufficiency of the evidence claim: Ahearing@); Contreras v. State, 645 S.W.2d 298, 298 (Tex. Crim. App. 1983)(refusing petition for discretionary review with summary statement that court of appeals did not have jurisdiction over the appeal, grounds for appeal not revealed in the opinion); Russell v. State, 702 S.W.2d 617, 618 (Tex. Crim. App. 1985)(grounds concerning revocation of probation and entry of adjudication of guilt: Ahearing@); Ex parte Hernandez, 705 S.W.2d 700, 702 (Tex. Crim. App. 1986)(dicta: Adetermination@); Olowosuko v. State, 826 S.W.2d 940, 941-942 (Tex. Crim. App. 1992)(contending that conditions of probation were vague and unenforceable, or were not violated: Adetermination,@ Adecision@).

^[7] 828 S.W.2d 1 (Tex. Crim. App. 1992).

^[8] Id. at 1.

^[9] Id. at 2.

^[10] Id. at 1 n. 1.

^[11] 983 S.W.2d 738, 740 (Tex. Crim. App. 1999).

^[12] Connolly, 983 S.W.2d at 740-741.

^[13] Id. at 741 (emphasis added).

^[14] 56 S.W.3d 48 (Tex. Crim. App. 2001).

^[15] Id. at 50.

^[16] Id. at 51 (emphasis in original).

^[17] 818 S.W.2d 782, 785 (Tex. Crim. App. 1991).

^[18] Tex. Code Crim. Proc., Art. 44.29(c)(AIf any court sets aside or invalidates the sentence of a defendant convicted of an offense under Section 19.03, Penal Code, and sentenced to death on the basis of any error affecting punishment only, the court shall not set the conviction aside but rather shall commence a new punishment hearing . . . A)

^[19] 920 S.W.2d 288, 297-298 (Tex. Crim. App. 1996)(opinion on rehearing), cert. denied, 519 U.S. 1030 (1996) .

^[20] Art. 44.29(b).

^[21] Carson v. State, 6 S.W.3d 536 (Tex. Crim. App. 1999).