Appealing Texas State Straight Probation and Deferred Adjudication

How could it happen that a Texas state defendant could end up guilty of a felony or a class A or B felony, not go to prison or jail, and yet be able to appeal the case?
A capital felony conviction results in either death, life without parole, or, if the offense were committed when the defendant was less than 18 years old, life with the possibility of parole. Violation of city or county ordinances or class C misdemeanors are fine-only offenses.
There  are three ways to be guilty of imprisonment, state jail or county jail offenses and not end up in prison, state jail or jail: straight probation, deferred adjudication and deferred prosecution.
In straight probation, the defendant pleads either no contest (also known as nolo contendere) or guilty, and the judge finds the defendant guilty, but gives a sentence for a fixed period probated for a particular time. In a case like this the defendant has a conviction on record, but if probation is not violated for the time set by the court, the defendant will never go to prison. (Related to this, but a little different is shock probation-- the defendant is imprisoned for a time-- often 180 days-- and then released on probation so as to show the defendant what the alternative to being a good probationer is.)
Deferred adjudication is when the defendant pleads as above, but instead of the judge finding the person guilty at that time, the judge accepts the plea, putting off deciding (adjudicating) the case until some date in the future (usually a much longer time than a defendant would get in straight probation). If the defendant does not violate the probation until that date in the future, then the court will dismiss the case at that date. The great advantage of deferred adjudication is that, if successful, the defendant can truthfully claim to never have been convicted of a crime, at least as far as the State of Texas is concerned. This is not true for the United States Immigration and Naturalization Service. It counts deferreds, even successful ones, as convictions for their purposes. Now if you've read carefully, you've seen that deferred adjudication does not give a sentence for a fixed period probated for a particular time. Deferred puts the defendant on probation for a particular time, but does not fix a sentence. It offers the defendant a blessing and a curse. If the defendant makes it through the probation, the blessing is that there is no State conviction. But if the defendant does not make it, then the court can give the full range of punishment from the minimum to the maximum. Deferred is intended to minister to good people who-- out of character--commit a criminal act. But for the habitual or professional criminal it is a trap-- expecting that they will change and will not reoffend-- they sign up only to end up with the maximum when substance abuse or mental illness or just being a smart-ass gets them back in jail or in prison.
Deferred prosecution is even better. If the defendant can get the State to agree, it will enter into a contract with the guilty-nolo pleading defendant for a fixed period and will not even file charges. Get through the period and that the State withdraws the charging instrument. A successful defendant can truthfully say that the charges were dismissed without further proceedings. Doesn't help with INS though, they count not whether a person is convicted or charged but whether they pleaded, so it's still a conviction with them. If the defendant fails, the contract is deemed to be violated, and they go on with the process from the beginning only it's a fair bet that the prosecutor's office likes the defendant a lot less. They feel that a failed deferred prosecution makes them look bad.
These paragraphs are a big introduction to a small subject. What can the defendant appeal?, On a straight probation, a defendant cannot appeal the finding of guilt. The defendant agreed to it. If any relief would be available on the guilt finding it would have to be on an application for a writ of habeas corpus. The finding of violation of probation could be appealed, but remember:

1. All of the violation findings have to be overruled; if one is left, that violation is still true, and the court is within its rights to violate the defendant.
2. Probation violations just have to be proved by a preponderance of the evidence not beyond a reasonable doubt-- a much lower standard that the usual criminal law standard.
3. The standard for review is the abuse of discretion standard-- the lowest one in appellate law.

The statute says that there is no right to a jury in a finding of probation violation.

In deferred adjudication, one cannot appeal the finding of guilt-- it was agreed. Beating that requires a hard-to-win writ application. It used to be that the finding of violation was unappealable, but the statute was changed six years ago. You have all the problems I enumerated above as to beating probation violations, but if there is a problem with the sentencing, that can be appealed in the same way as a punishment problem can be appealed in a trial.
What about appealing a judicial finding in a deferred prosecution that the defendant breached the agreement? It would not appear to be a final judgment-- the trial would be proceeding. If the bogusness of the breach is as clear as glass, a writ application might be appropriate. Not habeas corpus, appeal after final judgment is probably a sufficient remedy. I'm not sure that they would feel that way about mandamus or prohibition if the defendant was favored (e.g. a state official).

Of Texas Community Supervision, a Motion for New Trial and Passing out in the Whataburger Drivethrough

Two of the things your humble correspondent loves are:

1. The Effect of a Motion for New Trial on the Finality of a Judgment; and
2. The food at Whataburger, which really is a Texas Treasure.

This case has both.

Jerry Paul Lundgren had been convicted of driving while intoxicated in 2009.  On January 7, 2011, his case was plea-bargained in a Wise County Court at Law at the county seat, Decatur. He was sentenced to 365 days confinement, suspended for 18 months while he was on community supervision (adult probation). Two conditions of the probation were that Lundgren was not to commit any new offenses nor to drink any alcohol. The court said Lundgren's probation was to start that day-- January 7, 2011-- and it was quite clear from what Lundgren was told from the bench and in his plea paperwork that he was giving up his right to appeal.

January 14, 2011, Lundgren, like many Texans, heard the siren song of Whataburger, and unfortunately for him, he passed out in a silver truck in the drivethrough lane, flunked a field sobriety test and found himself being escorted back to the jail for DWI.

On January 19, 2011, he filed a notice of appeal of the January 7 judgment. On January 28, 2011, he filed a motion for new trial, which, under Texas Rule of Appellate Procedure 21.8(c,) was overruled by operation of law on March 23, 2011. On February 18, 2011, the State filed a motion to revoke his probation because he had committed a new offense and had drunk alcohol. On March 3, 2011, the Second Court of Appeals in Fort Worth dismissed his appeal for lack of jurisdiction (Remember, on January 7, he had given up his right to appeal.). Fort Worth issued its mandate in the case May 2, 2011.

June 22, 2011 the trial court entered a “Post Mandate Enforcement of Prior Judgment of Conviction Sentence Suspended,” starting the sentence that same day. It correct the judgment two days later, to add a driver's license suspension that had been in the original January 7 judgment, but which had been left out of the June 22 judgment. It, too, said that the new sentence started June 22. On July 13, 2011, Lundgren filed a motion to quash the State's motion to revoke because the January 7 judgment had not been final on January 14. He also moved to suppress the evidence against him from the Whataburger incident (It is much easier to arrest a person and get evidence against such a person if the person is on community supervision. Such a person has given up privacy protections that ordinary people have not given up.). The trial court denied the motion to suppress, found that Lundgren had violated his community supervision conditions, revoked his community supervision, and sentenced him 300 days in jail. Lundgren appealed.

The panel in this case was Justices Lee Ann Dauphinot, Sue Walker, and Lee Gabriel. Gabriel wrote an opinion that Walker joined. Dauphinot dissented. The majority held that it was absurd that a motion for new trial could retroactively eliminate probation conditions, and, thereby, probation violations. Dauphinot argues that there are many good reasons why a person entering into a no-appeal plea bargain might want to file a motion for new trial, and that Milburn v. State, 201 S.W.3d 749 (Tex. Crim. App. 2006) stands for the proposition that a community supervision judgment could be vitiated by a motion for new trial. She also pointed out that the trial court could have made Lundgren waive his right to a motion for new trial or the judge could have put Lundgren on personal bond with the probation conditions being the bond conditions. That would have worked no matter what the new trial/appellate status of the case would have been.

I would hope that court of criminal appeals would take this case up, but if I had to bet, I don't think they will-- too much of a hot potato, being opposed by Mothers Against Drunk Drivers, etc.

Thanks to the estimable Jim Skelton for hipping me to this case.His Criminal Law Institute is a great source of learning for Texas criminal defense lawyers, and a great value.
Lundgren v. State, ___ S.W.3d ___ (No. 02-12-00085-CR, Aug 22, 2013) (Walker and Gabriel, JJ.) (no pet. h.) 
Lundgren v. State, ___ S.W.3d ___ (No. 02-12-00085-CR, Aug 22, 2013) (Dauphinot, J., dissenting) (no pet. h.)