








IN THE COURT OF CRIMINAL APPEALS

OF TEXAS





NO. PD-1610-04


RONALD THACKER HARGESHEIMER, Appellant

v.


THE STATE OF TEXAS




ON STATE'S PETITION FOR DISCRETIONARY REVIEW
FROM THE SEVENTH COURT OF APPEALS

POTTER  COUNTY



Johnson, J., filed a concurring opinion.

C O N C U R R I N G   O P I N I O N



	Tex. R. App. P. 25.2(a)(2) is intended to reduce the number of baseless appeals and thereby
conserve judicial resources.  It works quite well for cases in which incarceration or community
supervision is assessed at the time of the original plea.  The choice of which box to check is usually
clear: there was a plea bargain or there wasn't; there were pretrial motions that were ruled on by the
trial court, or there weren't; the trial court gave permission to appeal, or it didn't.  Thus the
availability of appeal is easily decided in the vast majority of cases, and the trial court acts on the
basis of adequate information.
	However, at the time that a trial court is required to certify whether an appellant is permitted
to appeal from proceedings on a motion to adjudicate guilt, it faces a dilemma; a defendant has a
limited right to appeal, depending on the issues raised, but the trial court does not know what those
issues will be or whether those issues are permitted under Tex. Code Crim. Proc. Art. 42.12, §5
(b).  
	Just as for revocations of community supervision, the provisions of Tex. R. App. P.
25.2(a)(2) cannot apply; there can be no plea bargain, as no recommendation by the state is binding
on a trial court during a revocation or adjudication hearing. Gutierrez v. State, 108 S.W.3d 304 (Tex.
Crim. App. 2003).  The only question is whether the issues that appellant wishes to appeal are
permitted by Art. 42.12, §5 (b).   In circumstances such as these, the trial court must, of necessity,
act without full knowledge, and it does not err by choosing the option that preserves an appellant's
right of appeal. 
	Here, a certification stating that this is a plea-bargain case and that appellant had no right of
appeal is inaccurate both because there was no plea bargain and because appellant does have the
limited right to appeal issues "unrelated to his conviction."  This is the latest of many times that this
issue has come before this Court, and thus it appears that the rules governing appeal after revocation
or adjudication are not well understood.  In sum, they are: 1) Tex. R. App. P. 25.2(a)(2) does not
apply because a plea bargain at the time of the original pleading is satisfied, or not, at the original
pleading and does not carry over to a subsequent revocation or adjudication hearing; 2) defendants
granted community supervision may appeal from all aspects of the revocation hearing; and 3)
defendants granted deferred adjudication may not appeal the decision by the trial court to adjudicate,
but may appeal other matters because, after adjudication, "all proceedings, including assessment of
punishment, pronouncement of sentence, granting of community supervision, and defendant's appeal
continue as if the adjudication of guilt had not been deferred."   Tex. Code Crim. Proc. Art. 42.12,
§5 (b). 
	The legislature created this conundrum when it chose to deny an appeal of the decision to
adjudicate.  If and until the legislature changes its choice in the matter, only our courts of appeals,
knowing what issues were raised on appeal, will, unlike the trial court,  have sufficient information
to sort through appeals from adjudication hearings and separate permitted appeals from prohibited
ones.	
	I join the opinion of the Court.

FILED: January 18, 2006
