Barbara Christine Vidlund v. The State of Texas--Appeal from 368th District Court of Williamson County

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-97-00204-CR
Barbara Christine Vidlund, Appellant
v.
The State of Texas, Appellee
FROM THE DISTRICT COURT OF WILLIAMSON COUNTY, 368TH JUDICIAL
DISTRICTNO. 92-686-K368, HONORABLE BURT CARNES, JUDGE PRESIDING
Appellant's brief raises this single issue: "Does appellant have a right to appeal an order of the trial court adjudicating guilt, following appellant's plea of 'true,' during a period of deferred adjudication probation, where the State and appellant had an agreement as to punishment and the trial court refused to follow such agreement[?]" See Tex. R. App. P. 38.1(e). We will answer this question in the negative and affirm the judgment of conviction.

On September 28, 1993, after accepting appellant's guilty plea to an indictment accusing her of indecency with a child, the district court found that the evidence substantiated her guilt, deferred further proceedings, and placed appellant on community supervision. On March 4, 1997, the court conducted a hearing on the State's motion to revoke and adjudicate. Appellant pleaded true to one of the alleged violations and testified to certain mitigating circumstances. The prosecutor informed the court that the State had agreed to recommend that appellant's probation be extended for one year with outpatient treatment for her drug problems. At the conclusion of the hearing, the court revoked supervision, adjudicated guilt, and sentenced appellant to imprisonment for sixteen years. Appellant did not ask to withdraw her plea of true nor did she file a motion for new trial.

Appellant argues that her plea of true was prompted by the State's agreement to recommend that her probation be continued. No appeal may be taken, however, from the trial court's determination to proceed to adjudication. Phynes v. State, 828 S.W.2d 1 (Tex. Crim. App. 1992); Olowosuko v. State, 826 S.W.2d 940, 942 (Tex. Crim. App. 1992); Daniels v. State, 615 S.W.2d 771 (Tex. Crim. App. 1981); Tex. Code Crim. Proc. Ann. art. 42.12, 5(b) (West Supp. 1998). Whatever the circumstances of appellant's plea at the adjudication hearing, the statutory prohibition on appeal from the decision to adjudicate is absolute. See Phynes, 828 S.W.2d at 2 (may not appeal alleged violation of constitutional rights); Williams v. State, 592 S.W.2d 931, 932-33 (Tex. Crim. App. 1979) (decision to proceed with adjudication of guilt is one of absolute unreviewable discretion). After adjudication of guilt, all proceedings, including the appeal, continue as if the adjudication of guilt had not been deferred. Art. 42.12, 5(b). For the same reason, we cannot review appellant's contention that her testimony at the adjudication hearing established that her violation of the conditions of her supervision was justified by necessity. See Tex. Penal Code Ann. 9.22 (West 1994).

We also note that appellant cannot complain that the sixteen year sentence exceeds that to which she had agreed. This is an appeal from appellant's conviction for indecency with a child, and the relevant plea bargain is the one to which appellant agreed before pleading guilty. As the Court of Criminal Appeals has written, "when a prosecutor recommends deferred adjudication in exchange for a defendant's plea of guilty or nolo contendere, the trial judge does not exceed that recommendation if, upon proceeding to an adjudication of guilt, he later assesses any punishment within the range allowed by law." Watson v. State, 924 S.W.2d 711, 714 (Tex. Crim. App. 1996). Before placing appellant on deferred adjudication supervision, the district court admonished her that she could be sentenced to twenty years in prison if she violated the supervisory conditions. The punishment assessed by the district court after adjudicating appellant guilty did not amount to a refusal to implement the plea bargain. Id.

The judgment of conviction is affirmed.

 

Marilyn Aboussie, Justice

Before Justices Powers, Aboussie and B. A. Smith

Affirmed

Filed: April 2, 1998

Do Not Publish

YLE="font-size: 11pt">FROM THE DISTRICT COURT OF WILLIAMSON COUNTY, 368TH JUDICIAL
DISTRICTNO. 92-686-K368, HONORABLE BURT CARNES, JUDGE PRESIDING
Appellant's brief raises this single issue: "Does appellant have a right to appeal an order of the trial court adjudicating guilt, following appellant's plea of 'true,' during a period of deferred adjudication probation, where the State and appellant had an agreement as to punishment and the trial court refused to follow such agreement[?]" See Tex. R. App. P. 38.1(e). We will answer this question in the negative and affirm the judgment of conviction.

On September 28, 1993, after accepting appellant's guilty plea to an indictment accusing her of indecency with a child, the district court found that the evidence substantiated her guilt, deferred further proceedings, and placed appellant on community supervision. On March 4, 1997, the court conducted a hearing on the State's motion to revoke and adjudicate. Appellant pleaded true to one of the alleged violations and testified to certain mitigating circumstances. The prosecutor informed the court that the State had agreed to recommend that appellant's probation be extended for one year with outpatient treatment for her drug problems. At the conclusion of the hearing, the court revoked supervision, adjudicated guilt, and sentenced appellant to imprisonment for sixteen years. Appellant did not ask to withdraw her plea of true nor did she file a motion for new trial.

Appellant argues that her plea of true was prompted by the State's agreement to recommend that her probation be continued. No appeal may be taken, however, from the trial court's determination to proceed to adjudication. Phynes v. State, 828 S.W.2d 1 (Tex. Crim. App. 1992); Olowosuko v. State, 826 S.W.2d 940, 942 (Tex. Crim. App. 1992); Daniels v. State, 615 S.W.2d 771 (Tex. Crim. App. 1981); Tex. Code Crim. Proc. Ann. art. 42.12, 5(b) (West Supp. 1998). Whatever the circumstances of appellant's plea at the adjudication hearing, the statutory prohibition on appeal from the decision to adjudicate is absolute. See Phynes, 828 S.W.2d at 2 (may not appeal alleged violation of constitutional rights); Williams v. State, 592 S.W.2d 931, 932-33 (Tex. Crim. App. 1979) (decision to proceed with adjudication of guilt is one of absolute unreviewable discretion). After adjudication of guilt, all proceedings, including the appeal, continue as if the adjudication of guilt had not been deferred. Art. 42.12, 5(b). For the same reason, we cannot review appellant's contention that her testimony at the adjudication hearing established that her violation of the conditions of her supervision was justified by necessity. See Tex. Penal Code Ann. 9.22 (West 1994).

We also note that appellant cannot complain that the sixteen year sentence exceeds that to which she had agreed. This is an appeal from appellant's conviction for indecency with a child, and the relevant plea bargain is the one to which appellant agreed before pleading guilty. As the Court of Criminal Appeals has written, "when a prosecutor recommends deferred adjudication in exchange for a defendant's plea of guilty or nolo contendere, the trial judge does not exceed that recommendation if, upon proceeding to an adjudication of guilt, he later assesses any punishment within the range allowed by law." Watson v. State, 924 S.W.2d 711, 714 (Tex. Crim. App. 1996). Before placing appellant on deferred adjudication supervision, the district court admonished her that she could be sentenced to twenty years in prison if sh