IN THE COURT OF CRIMINAL APPEALS

OF TEXAS




NO. 151-99

GARY JEFFERSON VIDAURRI, Appellant

v.



THE STATE OF TEXAS




ON APPELLANT'S PETITION FOR DISCRETIONARY REVIEW

FROM THE SEVENTH COURT OF APPEALS

POTTER COUNTY


KELLER, P.J., filed a dissenting opinion in which KEASLER, J., joined.

DISSENTING OPINION



It appears to me that the Court's opinion is contrary to both Watson (1) and Manuel. (2) In Watson, the trial court placed the defendant on deferred adjudication probation in accordance with a plea agreement. (3) The defendant was later adjudicated guilty without a plea agreement and sentenced to ten years in prison. (4) On her appeal of the sentence (imposed after adjudication), the defendant complained that "she was punished without due course of law because the trial judge decided to give her a ten-year sentence before even adjudicating her guilty." (5) We held that former Texas Rule of Appellate Procedure 40(b)(1)(now Rule 25.2(b)(3)) prevented her from raising this complaint. (6)

Two important aspects of Watson should be noticed: (1) the case involved an alleged punishment error, and (2) we applied Rule 40(b)(1) to the appeal from adjudication. The Court's opinion today would hold appealable the very type of claim we held in Watson to be barred. As a result, the Court appears to have overruled Watson without saying so.

The Court contends, however, that its holding merely limits Watson and that such result follows from Feagin (7) and Manuel. I see several problems with this reasoning. First, Watson never purported to address whether original plea issues could be raised on an appeal from a sentence imposed after adjudication. Because the case involved a punishment issue, there was no occasion to address what principles might have applied to original plea issues. Whether the original plea could be attacked in a post-adjudication appeal was an issue we had expressly left open in Dillehey (8) and then later resolved in Manuel.

Second, Feagin involved regular probation rather than deferred adjudication. (9) In the deferred adjudication context, punishment proceedings after adjudication are considered a continuation of the criminal prosecution, but in the regular probation context, there is no continuation of proceedings:

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. (10)



As we explained in Feagin, the defendant's appeal involved an issue that was unrelated to her conviction because it was an attack on the attempted revocation. (11) Feagin relied upon Whetstone, (12) a case decided well before Watson. (13) Feagin cited the State's reliance upon Watson but did not in any way disavow anything we had said in Watson. (14) The inescapable conclusion is that Feagin did not modify Watson but simply found Watson, dealing as it did with deferred adjudication, to be inapplicable to the regular probation setting.

Finally, Manuel expressly recognized the legitimacy of applying former Rule 40(b)(1)(now Rule 25.2(b)(3)) to post-adjudication appeals:There is a second reason why the court of appeals did not err in refusing to address the merits of appellant's claim. As the record reflects, appellant's general notice of appeal, even assuming it was timely, did not comply with Texas Rule of Appellate Procedure 40(b)(1), because it did not state - indeed could not truthfully state - that the trial court had given permission for the appeal. See footnote two, supra, and accompanying text. Thus the court of appeals lacked jurisdiction over the appeal. (15)



While Manuel involved original plea issues rather than punishment issues, that fact is not a relevant distinction under Rule 25.2(b)(3). The rule either extends to post-adjudication appeals or it does not. Because Manuel reaffirmed that the rule does apply, then it applies for all purposes.

For deferred adjudications, the Legislature appears to have set up a two-stage appeal. The first stage occurs after the imposition of deferred adjudication, and at that stage, the defendant may raise issues relating to the plea proceedings. The second stage occurs after adjudication of guilt, and at this latter stage, the defendant may raise issues relating to the imposition of punishment. Rule 25.2(b)(3) applies to both stages of the appeal although each stage may be devoted to different issues. While Manuel recognized similarities between regular and deferred probation, they are different in that adjudication of guilt and assessment of punishment are considered to be a continuation of the criminal prosecution. And, if one is placed on deferred adjudication and later adjudicated guilty, the trial court could still impose regular probation as the punishment. While rule 25.2(b)(3) logically applies to appeals after adjudication, under Feagin the rule would not apply to an appeal from a subsequent revocation of regular probation because the revocation of regular probation is not considered to be a continuation of the criminal prosecution, but a completely separate proceeding.

I would affirm the Court of Appeals's decision to dismiss for want of jurisdiction. Because the Court reverses that decision, I respectfully dissent.

KELLER, Presiding Judge

Date delivered: June 20, 2001

Publish

1. Watson v. State, 924 S.W.2d 711 (Tex. Crim. App. 1996).

2. Manuel v. State, 994 S.W.2d 658 (Tex. Crim. App. 1999).

3. 924 S.W.2d at 712.

4. Id.

5. Id.

6. Id. at 713-715

7. Feagin v. State, 967 S.W.2d 417 (Tex. Crim. App. 1998).

8. Dillehey v. State, 815 S.W.2d 623, 626 n. 7 (Tex. Crim. App. 1991).

9. 967 S.W.2d at 418.

10. Texas Code of Criminal Procedure, Article 42.12 5(b).

11. 967 S.W.2d at 419.

12. Whetstone v. State, 786 S.W.2d 361, 363 (Tex. Crim. App. 1990).

13. Feagin, 967 S.W.2d at 419.

14. Feagin, supra.

15. 994 S.W.2d at 662 (footnote omitted).