I agree with the majority's holding that Code of Criminal Procedure Article 42.12, section 15 requires that a prior conviction be final to be eligible for use under section 15. I also agree that the appellant's 1995 conviction for delivery of cocaine was not final. I write separately because I disagree with the majority's language relating to "regular" community supervision.
The rationale for not finding the appellant's conviction final, according to the majority, is that he could have filed a motion for new trial upon revocation of his deferred adjudication community supervision. See Tex. Code Crim. Proc. art. 42.12 § 5(b); Tex. R. App. P. 21.4. In the context of deferred adjudication community supervision after adjudication, if a motion for new trial is granted, then the conviction no longer exists. See, e.g., Ex parte Miller, 552 S.W.2d 164, 165 (Tex. Crim. App. 1992). The majority contrasts regular community supervision because the defendant in that context has been convicted; the defendant must raise issues relating to the conviction immediately after he has been convicted and the execution of sentence suspended. Ante. at 8 (citing Earhart v. State, 823 S.W.2d 607, 622-23 (Tex. Crim. App. 1991), and Franklin v. State, 523 S.W.2d 947, 947-48 (Tex. Crim. App. 1975)).
When regular community supervision is revoked, the defendant has the right to appeal from the revocation proceedings. See Tex. Code Crim. Proc. art. 42.12 §23(b) ("When he is notified that his community supervision is revoked for violation of the conditions of community supervision and he is called on to serve a sentence in a jail or in the institutional divisions of the Texas Department of Criminal Justice, he may appeal the revocation"). The permissible subject matter of the appeal is limited, but the defendant possesses the right nonetheless. For example, the defendant may appeal the basis for the revocation or the trial court's jurisdiction to revoke. If a reviewing court finds that the trial court abused its discretion in revoking the defendant's community supervision, or that the trial court did not have jurisdiction to revoke community supervision, it may reverse the revocation. See, e.g., Brecheisen v. State, 4 S.W.3d 721, 765 (Tex. Crim. App. 1999) (holding that the trial court did not have jurisdiction to revoke the appellant's community supervision revocation and dismissing the State's motion to revoke); Cardona v. State, 665 S.W.2d 492, 495 (Tex. Crim. App. 1984) (holding that the trial court erred in finding that the appellant violated the conditions of his community supervision and reversing the revocation). If the revocation is reversed, the defendant no longer has a final conviction because his community supervision has not been revoked. "Because an appeal could undo the revocation, reason would dictate that the conviction cannot be final for such purposes until any appeal of the revocation has been resolved." Ante at 7.
I disagree with the majority that, "so long as any appeal of the imposition of probation has been resolved, a probated [sentence] does constitute a final conviction for the purpose of determining a defendant's eligibility for probation under Article 42.12 §4(a)," id. at 7-8 (emphasis added), and I would overrule Franklin v. State, 523 S.W.2d 947 (Tex. Crim. App. 1975), and Earhart v. State, 823 S.W.2d 607 (Tex. Crim. App. 1991), to the extent that they are inconsistent with this opinion.
I concur in the judgment of the Court.
DATE DELIVERED: January 17, 2001.