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610 S.W.2d 509

McDougal v. State

Court of Criminal Appeals of Texas

Decided January 21, 1981

Court of Criminal Appeals of Texas · decided 1981-01-21

Key passage — most relied on by later courts

“(a) ... [W]hen in the [trial] judge’s opinion the best interest of society and the defendant will be served, the judge may, after receiving a plea of guilty or plea of nolo contendere, hearing the evidence, and finding that it substantiates the defendant’s guilt, defer further proceedings without entering an adjudication of guilt, and place the defendant on community supervision. However, upon written motion of the defendant requesting final adjudication filed within 30 days after entering such plea and the deferment of adjudication, the judge shall proceed to final adjudication as in all other cases. (b) On violation of a condition of community supervision imposed under Subsection (a) of this section, the defendant may be arrested and detained.... 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.”

quoted by 4 later decisions, including Ex Parte Howard, Homan v. Hughes

“On this 18th day of April, 1983, this cause was called for trial, and came the County Attorney for Childress County, Texas, and came the Defendant in person; and the Defendant, having been duly arraigned, entered a plea of guilty to the charge set forth in the informa tion, and waived trial by jury. The Court having heard the information read and the evidence submitted thereon, it is considered and adjudged by the Court that the Defendant is guilty as charged in the information of the offense of Driving while intoxicated (M) and assess his punishment at a fine of $350.00 and 90 days confinement in the Childress County Jail, together with all costs in this behalf incurred. It appearing to the Court, however, that before this trial Defendant made application in writing and under oath to the Court for probation herein; and it further appearing to the Court that Defendant satisfies the requirements of the Misdemeanor Probation Law of Texas and that the ends of justice and the best interests of society and of the Defendant will be served by granting Defendant probation in this cause. IT IS THEREFORE CONSIDERED, ORDERED AND ADJUDGED that the finding of guilty herein shall not be final, that no judgment be rendered thereon, and that Defendant be, and is hereby placed on probation in this cause for a period of 12 months from this date, on the following terms and conditions, to-wit: That he pay all costs herein incurred, and that during the term of such probation he shall: [terms of p”

quoted by 1 later decision, including Albritton v. State

Good law ✅— No negative treatment on recordhow we know

Decided 1981-01-21

How this case has been cited

Cited by 45 later decisions — most recently January 2006 · most notably Manuel v. State (1999), King v. State (1995)

44 state decisions

210198119902000decided

Later decisions citing this case, by decade. The current decade is in progress, and our corpus holds fewer opinions from the most recent years, so the latest bars are undercounted — not a real decline.

View the full empirical analysis of this case →

TEAGUE, Judge,

¶1concurring.

¶2I concur wholeheartedly with what my Brethren Dally and Clinton say in these causes up to a point.

¶3I believe, however, though dicta to these causes, Art. 42.12, Sec. 3d(b), V.A.C.C.P., may provide for multi-stage proceedings where the matter concerns deferred adjudication. The fear I have and why I write is that this Court’s past and present decisions on deferred adjudication leave the Bench and Bar in some quarters of this State in a state of perplexity, confusion and anxiety.

¶4First, if an accused enters a plea of guilty or nolo contendere to a criminal offense for which the trial court may grant adult probation, and the trial court finds the evidence substantiates the defendant’s guilt and if the trial court believes the best interests of society and of the defendant will be served, it may defer further proceedings and place the defendant on probation on reasonable terms and conditions as the court may require and for a period as the court may prescribe not to exceed 10 years, without entering a judgment of guilt.

¶5*511There is no appeal from that decision to this Court. However, a defendant is not without a remedy in law for if he is dissatisfied with the trial court deferring further proceedings and placing him on deferred probation, then the statute provides the defendant may, by filing a written notice within 30 days after the entry of the plea and the deferment of adjudication, request final adjudication, and have his guilt adjudicated. Should this occur, and the trial court adjudicates the defendant’s guilt, then there should be a punishment hearing, pursuant to Art. 37.07, V.A.C.C.P., and, after assessment of punishment and the expiration of the usual times governing motions and amended motions for new trial and sentencing, if any, the defendant would then have the right to appeal to this Court; whether he is assessed a term of years in the penitentiary or is granted another probation.

¶6If the defendant does not timely move to have his guilt adjudicated and subsequently the trial court proceeds to adjudicate the guilt of the defendant pursuant to a motion that the defendant has violated his probation then, after the hearing and adjudication of guilt, there should be a punishment hearing, pursuant to Art. 37.07, Y.A.C.C.P., and thereafter the assessment of punishment by the trial court and sentence, if necessary. The defendant would thereafter have the legal right to appeal to this Court “all proceedings, including assessment of punishment, pronouncement of sentence, if any, and granting of probation, if any,” just as in an ordinary appeal of a plea of guilty or nolo contendere case.

¶7In sum, I do not believe there is an appeal from the trial court’s decision deferring adjudication of guilt, but once the decision is made to adjudicate the defendant’s guilt, and the guilt is adjudicated, then I believe the matter is not any different, for appeal purposes, from that where the defendant has appeared in court, plead guilty or nolo contendere to a felony offense, and awaits the assessment of his punishment.

¶8A close reading of Judge Daily’s opinion does not allow for the proper procedure because the “appellate remedies that are available to a defendant, ’ do not commence at least until there has been an assessment of punishment, the overruling of a motion or amended motion for new trial, and a sentence, where required by law or, if no sentence, then the filing of a motion or amended motion for new trial pursuant to Art. 44.08(b), V.A.C.C.P., and thereafter the giving of timely notice of appeal.

¶9In my opinion, my distinguished Brethren imply there is a different procedure available to a defendant in a deferred adjudication cause but I have concluded there is only one procedure available and it is dependent upon (1) whether the defendant himself desires to have his guilt adjudicated or (2) if the trial court subsequently adjudicates his guilt. Perhaps, someday in the future members of the Bench and Bar of this State will be blessed with an opinion by this Court discussing the full panoply of the handling of a deferred adjudication case. In the meantime, however, I fear the decisions of this distinguished Court and its members will leave many defendants, their attorneys, some prosecutors and some trial judges grouping in the dark like a virgin husband on the first night of his honeymoon. But, someday, I hope my Brethren will be fortunate enough to find the light bulb that will reveal the true meaning of deferred adjudication to those members on the Bench and Bar who have not found the light switch which I now tender to the other members of this Court.

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