Mark Atchison v. State ( 2003 )

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN



ON MOTION FOR REHEARING

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NO. 03-03-00118-CR

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Mark Atchison, Appellant

v.

The State of Texas, Appellee

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FROM THE DISTRICT COURT OF WILLIAMSON COUNTY, 368TH JUDICIAL DISTRICT NO. 99-691-K368, HONORABLE BURT CARNES, JUDGE PRESIDING

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S U P P L E M E N T A L O P I N I O N

In his motion for rehearing, appellant complains that we failed to address three arguments made in his brief. These arguments were not brought to the Court as points of error. Instead, they were woven into appellant's global argument in support of his claim that the State failed to prove the alleged violations of the conditions of supervision.

The first argument is that article 42.12, section 5(b) violates due process by prohibiting appeals from the determination to proceed to adjudication. See Tex. Code Crim. Proc. Ann. art. 42.12, § 5(b) (West Supp. 2004). It has been held, however, that there is no federal or state constitutional right to appeal a criminal conviction. Phynes v. State, 828 S.W.2d 1,2 (Tex. Crim. App. 1992) (citing McKane v. Durston, 153 U.S. 684, 687-88 (1894)). The right to appeal is regulated by the legislature. Id. "[W]hen a legislative enactment says an accused may not appeal a determination to adjudicate, there is no right to do so." Id. Phynes, cited on original submission, clearly contradicts appellant's assertion that due process entitles him to appeal the determination to proceed to adjudication. Black v. Romano, 471 U.S. 606, 616 (1985), relied on by appellant and discussed on original submission, does not support appellant's claim to a due process right of appeal.

Next, appellant argues that article 42.12, section 5(b) violates equal protection because there is no rational basis for distinguishing between ordinary probationers and deferred adjudication probationers with respect to the right of appeal. But as appellant conceded in his brief to this Court, the legislature is entitled to create two types of community supervision, each with its own advantages and disadvantages from the defendant's standpoint. We agree with the other courts that have held that the limitation on the right of appeal is a rational part of the overall deferred adjudication scheme. Faerman v. State, 966 S.W.2d 843, 847 (Tex. App.--Houston [14th Dist.] 1998, no pet.); Rocha v. State, 903 S.W.2d 789, 791 (Tex. App.--Dallas 1995, no pet.); Buchanan v. State, 881 S.W.2d 376, 380 (Tex. App.--Houston [1st Dist.] 1994), remanded on other grounds, 911 S.W.2d 11 (Tex. Crim. App. 1995).

Finally, appellant argues that he was denied the hearing to which he was statutorily entitled. See Tex. Code Crim. Proc. Ann. art. 42.12, § 5(b) (defendant is entitled to hearing to determine whether court should proceed to adjudication). Appellant urges that "a proceeding in which there is insufficient evidence to support adjudication is not a 'hearing' within the meaning of [the statute]."

In Eldridge v. State, 731 S.W.2d 618, 619 (Tex. App.--Houston [1st Dist.] 1987, no pet.), cited by appellant, the trial court proceeded to adjudication without a written motion. The court of appeals reversed, holding that article 42.12 did not deprive it of jurisdiction to determine if a constitutionally adequate hearing was held. Id.; see Gagnon v. Scarpelli, 411 U.S. 778, 786 (1973) (minimum due process requirements at probation revocation proceeding). Assuming that the holding in Eldridge is correct, a question we do not decide, it does not benefit appellant. ⁽¹⁾ The record before us establishes that appellant was accorded all of his due process rights under Gagnon v. Scarpelli: he was given written notice of the claimed violations of supervision; the evidence against him was disclosed; he was given the opportunity to be heard and to present witnesses at the adjudication hearing; he was allowed to confront and cross-examine adverse witnesses; the motion to adjudicate was heard by a neutral and detached decision maker; and the evidence relied on and reasons for adjudicating were stated in writing. 411 U.S. at 786. Eldridge does not hold or support appellant's claim that the statutory right to an adjudication hearing entitles him to challenge the sufficiency of the evidence adduced at that hearing. ⁽²⁾

The remaining points in appellant's motion for rehearing merely disagree with statements and conclusions in the original opinion and require no discussion. The motion for rehearing is overruled.

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David Puryear, Justice

Before Justices Kidd, B. A. Smith and Puryear

Motion for Rehearing Overruled

Filed: December 18, 2003

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1. It has been said that there is "a clear tension" between the holding in Eldridge and the court of criminal appeals' later holding in Phynes that a defendant cannot complain on appeal that he was denied effective assistance of counsel at a adjudication hearing. 43A George E. Dix & Robert O. Dawson, Texas Practice: Criminal Practice and Procedure § 43.172 (2d ed. 2001). Eldridge is also inconsistent with other opinions holding that procedural errors in the adjudication process cannot be raised on appeal. See id. § 43.169 n.10 (collecting cases).

2. Appellant also cites the concurring opinion in Small v. State, 977 S.W.2d 771, 777 (Tex. App.(Tex. App.--Fort Worth 1998, no pet.). Judge Dauphinot states that she would permit appellate review of the legal sufficiency of the evidence introduced to prove the alleged violations. This is contrary to the holding in Willliams v. State, 592 S.W.2d 931, 932 (Tex. Crim. App. 1979), which we discussed on original submission.