Opinion
No. 05-06-00038-CR
Opinion Filed July 11, 2006. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the 195th Judicial District Court, Dallas County, Texas, Trial Court Cause No. F04-59409-VN. Dissent.
Before Justices FITZGERALD, FRANCIS, and LANG-MIERS.
DISSENTING OPINION
I disagree with the majority's conclusion that we lack jurisdiction over appellant's sole issue on appeal. Accordingly, I dissent. The trial court combined the motion-to-adjudicate and sentencing hearings into a single hearing. During the hearing, appellant pleaded true to all the alleged violations of the terms of his community supervision, and he testified he committed the violations. During cross-examination, the prosecutor asked appellant about two extraneous offenses.
Q. Are you aware that she [appellant's wife] filed a report that you returned within days of being released on probation and choked and raped her?* * * Q. Is that right? A. No, that's not correct.
Q. Did you threaten the probation officer on March 24, '05 saying "I'll kill you" during the collection of a UA?A. No.
Q. You didn't have a confrontation, but with the probation officer in March —
A. That was a confrontation, but it wasn't on my part. I didn't say anything; I didn't do anything. I did report it to the supervisor.The trial court assured defense counsel that the prosecutor's statements about the extraneous offenses would not be considered in deciding whether to adjudicate appellant's guilt because the extraneous offenses were not alleged in the motion to adjudicate. The trial court observed, "He [appellant] denied them all and no proof has been offered that they, in fact, happened. I'm not seeing that he is injured in any way." The court then granted the State's motion to adjudicate, declared appellant guilty, and immediately sentenced appellant to two years' imprisonment. On appeal, appellant argues the prosecutor's questions constituted improper cross-examination for the purpose of affecting the trial court's post-adjudication decision whether to impose the sentence or to suspend imposition of the sentence and place appellant on community supervision. The trial court imposed the sentence. As the majority observes, the court of appeals does not have jurisdiction to review the trial court's decision to grant a motion to adjudicate guilt. See Tex. Code Crim. Proc. Ann. art. 42.12, § 5(b) (Vernon Supp. 2005). When the trial court combines the motion-to-adjudicate and the sentencing hearings into a single hearing, however, the defendant may appeal "evidence and procedures that relate directly and distinctly to the sentence imposed . . . even when the events themselves occur before the magic words, `I find you guilty.'" Hogans v. State, 176 S.W.3d 829, 834 (Tex.Crim.App. 2005). In this case, the trial court combined the motion-to-adjudicate and the sentencing hearings. As the trial court told appellant, the extraneous offenses about which the prosecutor asked were not alleged in the motion to adjudicate and could not be considered in determining whether to adjudicate appellant's guilt. The only relevant basis for the prosecutor asking the questions was to affect appellant's punishment. Therefore, I conclude the evidence and procedures about which appellant complains "relate directly and distinctively to the sentence imposed" and that article 42.12, section 5(b) does not deprive us of jurisdiction over appellant's issue on appeal. Accordingly, I dissent to the majority's decision to dismiss appellant's appeal.