IN THE COURT OF CRIMINAL APPEALS

OF TEXAS



NO. 793-00

 
REGINALD KEITH NIX, Appellant

v.


THE STATE OF TEXAS
ON APPELLANT'S PETITION FOR DISCRETIONARY REVIEW

FROM THE FOURTEENTH COURT OF APPEALS

HARRIS COUNTY

 Johnson, J., joined by Meyers, Price and Holland, JJ., dissenting.



O P I N I O N

In the instant case, appellant was placed on deferred adjudication and, following adjudication of his guilt, he brought challenges to his original plea, based on alleged violations to his right of counsel and right to a jury trial. Today, a majority of this court precludes him from bringing such claims. Because I believe that such claims may be brought, I respectfully dissent.

As I have noted elsewhere, our case law establishes that on appeal from an order revoking probation (i.e., "regular"community supervision), a defendant is permitted to bring a challenge to the original conviction when such a challenge was for "fundamental error." Jordan v. State, ___S.W.3d ___, ___, No. 1929/30-99, slip op. at 3 (Tex. Crim. App. June __, 2001) (Johnson, J., dissenting). Because we have equated deferred adjudication with "regular" community supervision for purposes of appeal, logic dictates that this same rule of fundamental error apply in the context of deferred adjudication. See Manuel v. State, 994 S.W.2d 658, 661-2 (Tex. Crim. App. 1999); Jordan, ___ S.W.3d at ___, slip op. at 2-3.

Today, however, the majority denies relief to appellant by overruling our "fundamental error"/"habeas corpus" case law. Ante, at ___ (slip op. at 7-8); Jordan, ___ S.W.3d at ___, slip op. at 2-5. I have noted my dissent to this action. Jordan, ___ S.W.3d ___ (slip op. at 1-4) (Johnson, J., dissenting).

The majority then goes on to declare that neither its decision today nor Manuel created a "new rule," so that a retroactivity analysis is unnecessary. Ante, at ___ (slip op. at 8-11). I disagree. Despite the fact that we never explicitly held that the "fundamental error" rule applied in the context of deferred adjudication, the logic of Manuel so dictated since, as noted above, Manuel's holding was explicitly predicated on its equating "regular" community supervision with deferred adjudication for purposes of appeal.

Based on the foregoing, as well as my dissent in Jordan, I dissent. (1)

Johnson, J.







Date Delivered: June 27, 2001



Publish

1. The majority also states that "a judgment is void only in very rare situations--usually due to a lack of jurisdiction." Ante, at ___ (slip op. at 4). This statement is questionable in light of the Court's recent decision in Ex parte Seidel, 39 S.W.3d 221 (Tex. Crim. App. 2001).