Opinion
Nos. PD-703-05, PD-705-05
Delivered March 29, 2006. DO NOT PUBLISH.
On Appellant's Petitions for Discretionary Review from the Seventh Court of Appeals, Potter County.
OPINION
Appellant challenges the court of appeals' dismissal of his appeals under Tex.R.App.P. 25.2(a)(2) after he was adjudicated guilty of burglary of a habitation and aggravated robbery. He contends he has the right to appeal under Article 42.12 § 5(b) of the Texas Code of Criminal Procedure. In light of our recent decision in Hargesheimer v. State, S.W.3d (Tex.Crim.App. No. PD-1610-04, delivered January 18, 2006), we will remand these cases to the Court of Appeals. Appellant pled guilty to burglary of a habitation and aggravated robbery. In accord with a plea bargain, the trial court deferred adjudication of guilt and placed Appellant on community supervision for six years and ten years, respectively. In 2003, the trial court adjudicated Appellant guilty and sentenced him to confinement for forty years for each offense. Appellant filed notices of appeal, but the trial court certified that these were plea bargain cases and Appellant did not have a right to appeal. The Court of Appeals sent a letter to Appellant's counsel notifying him that the appeal would be dismissed unless the certifications were amended to show a right to appeal or Appellant provided grounds for continuing the appeals. Appellant did not respond and the certifications were not amended. The Court of Appeals dismissed the appeals and referenced Rule 25.2(a)(2) (d); Stowe v. State, 124 S.W.3d 228, 232 (Tex.App.-El Paso, 2003, no pet.). Moore v. State, Nos. 07-03-0129- CR 07-03-0130-CR (Tex.App.-Amarillo, delivered March 29, 2005). Appellant filed petitions for discretionary review contending he had a right to appeal under Art. 42.12, § 5(b) and Dears v. State, 154 S.W.3d 610 (Tex.Crim.App. 2005). In Hargesheimer we addressed the relationship between Rule 25.2(a)(2) and Art. 42.12, § 5(b). We held that when a defendant appeals from an adjudication proceeding under Art. 42.12, § 5(b), Rule 25.2(a)(2) will not restrict appeal; although we also noted that Art. 42.12, § 5(b) will still prohibit the appeal of the trial court's decision to adjudicate guilt. Id. at ___, slip op. at 14. The Court of Appeals in the instant case did not have the benefit of our opinion in Hargesheimer. Accordingly, we grant review of Appellant's petitions for discretionary review, vacate the judgments of the Court of Appeals, and remand the cases to that court in light of our decision in Hargesheimer.