holding that a court of appeals has jurisdiction to consider a claim of denial of a separate punishment hearing after adjudication of guilt because this claim does not challenge the conviction, Ait challenges the process by which he was sentenced, an issue >unrelated to [the] conviction=.@
How later courts described this case
- holding that a court of appeals has jurisdiction to consider a claim of denial of a separate punishment hearing after adjudication of guilt because this claim does not challenge the conviction, Ait challenges the process by which he was sentenced, an issue >unrelated to [the] conviction=.@
- holding that defendant failed to preserve error by failing to file a motion for new trial despite defendant's argument that he did not have to file a motion because a motion for new trial is only required when necessary to adduce facts not in the record
- stating that even when a defendant has pled guilty pursuant to a plea bargain and received deferred adjudication, there is a limited right of appeal after adjudication of guilt where the issue raised on appeal is unrelated to the conviction
- holding that rule 25.2(b)(3) did not apply to complaint that appellant was deprived of punishment hearing following revocation of community supervision and adjudication of guilt because that issue was unrelated to conviction
Written by the judges who cited it.
The opinion
JOHNSON, J.,
concurring.
I agree with the majority that appellant waived objection to the lack of a punishment hearing by failing to bring his complaint to the attention of the trial court. As to the question of the applicability of T.R.A.P. 25.2(b)(3), I concur in the result, but do not agree with the reasoning.
The reality of plea bargaining in regard to a deferred adjudication is that the bargaining is done at the time the defendant is placed on deferred adjudication. At that time, the plea bargain, i.e., the agreed grant of deferred adjudication (and usually its agreed length) is complete. At an adjudication hearing, unless a second bargain as to punishment is reached, there is no plea agreement, and thus, by its plain language, Rule 25.2(b)(3), which is applicable when “the punishment assessed did not *888 exceed the punishment recommended by the prosecutor and agreed to by the defendant,” does not apply.
When a person is placed on deferred adjudication, there is no finding of guilt and, therefore, no conviction. Without a conviction, no punishment can be assessed. Only after an adjudication hearing which results in adjudication and conviction can a punishment be meted out. This is precisely the time at which there is unlikely to be an agreement between the state and the defendant about the punishment to be assessed. There is nothing in the record, here to indicate that the state and appellant had an agreement for the assessment of imprisonment for twelve years. There being no agreement, Rule 25.2(b)(3) does not apply.
I concur in the judgment.