Collins v. State

BURGESS, Justice,

dissenting.

I respectfully dissent to the majority’s dismissal based upon Tex.Code Crim.Proc.Ann. art. 42.12, § 5(b) (Vernon 1979 & Supp.1995). In Olowosuko v. State, 826 S.W.2d 940, 941 (Tex.Crim.App.1992), the court stated: “Therefore, an appellate court must sort out various rulings a trial court may make in the course of a deferred adjudication proceeding to determine those which the Legislature provided a right to appeal.” See also McNew v. State, 608 S.W.2d 166, 173 n. 10 (Tex.Crim.App.[Panel Op.] 1978).

Several courts of appeal have followed this and allowed appeals of certain issues. Gilbert v. State, 852 S.W.2d 623 (Tex.App.—Amarillo 1993, no pet.) (competency at time of adjudication hearing); De Leon v. State, 797 S.W.2d 186 (Tex.App.—Corpus Christi *8651990, no pet.) (timeliness of motion to adjudicate); Fuller v. State, 653 S.W.2d 65 (Tex.App.— Tyler 1983, no pet.) (right to counsel at adjudication hearing); Dahlkoetter v. State, 628 S.W.2d 255 (Tex.App.—Amarillo 1982, no pet.) (trial judge’s authority to adjudicate).

An analogous case is Eldridge v. State, 731 S.W.2d 618 (Tex.App.—Houston [1st Dist.] 1987, no pet.). The court held it could consider the issue of whether the probationer had been afforded a hearing under article 42.12. The court found the probationer had not been afforded a “meaningful hearing”, this was a violation of due process and reversed the order adjudicating guilt.

In Phynes v. State, 828 S.W.2d 1 (Tex. Crim.App.1992), the court criticized Fuller and held the alleged failure to have counsel present at a hearing to adjudicate guilt was not appealable. Unfortunately, the Phynes opinion did not mention the previous language in Olowosuko v. State, nor any of the courts of appeals cases other than Fuller. It certainly appears the court is on its way to stating an absolute no appeal rule. If so, this is the perfect opportunity, although I would urge them not to do so.

The right to present witnesses is accorded defendants under Tex. Const. art. I § 10. The United States Supreme Court in Gagnon v. Scarpelli, 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973) enunciated the minimum requirements of due process that must be observed in probation revocation hearings. They include, among other things, the opportunity to present witnesses. Therefore, I conclude an appeal can be taken from a trial court’s decision to deny a motion for continuance. Consequently, I would not dismiss the appeal, but address the issue raised.1

. Since the majority does not allow the appeal, any discussion on the point of error would, at this point, be an advisory opinion which we are without authority to render. Armstrong v. State, 805 S.W.2d 791, 794 (Tex.Crim.App.1991).