By
Robert O. Dawson
Bryant Smith Chair in Law
University of Texas School of Law
2001 Case Summaries 2000 Case Summaries 1999 Case Summaries
Cannot appeal certification issues when
criminal case ends in deferred adjudication (00-2-25)
On May 23, 2000, the Dallas Court of Appeals held that the 1995 amendment to
the Family Code and Code of Criminal Procedure postponing certification appeals
until after a criminal conviction did not authorize an appeal raising
certification issues when the criminal case terminated with deferred
adjudication, which is not a conviction.
00-2-25. Nguyen v. State, UNPUBLISHED, No. 05-98-01599, 2000 WL 688563, 2000
Tex.App.Lexis ____ (Tex.App.--Dallas 5/23/00)[Texas Juvenile Law 315 (4th Ed.
1996)].
Facts: David L. Nguyen appeals the juvenile court's order certifying him to
stand trial as an adult. In two points of error, appellant argues the juvenile
court's waiver of juvenile jurisdiction was based on perjured testimony, and he
was denied the right to make an offer of proof during the certification process.
Appellant, a juvenile, was charged with burglary of a habitation in May 1997. In
August 1997, he was charged with an unrelated murder. The State obtained a
waiver of juvenile jurisdiction with respect to both the burglary and the
murder. Appellant was acquitted of the murder charge but pleaded guilty to the
burglary charge and was placed on deferred adjudication community supervision
for five years. Appellant now challenges the juvenile court's waiver of
jurisdiction on the burglary offense.
Held: Appeal dismissed for want of jurisdiction.
Opinion Text: The State argues that this Court lacks jurisdiction over this
appeal because a certified juvenile may only appeal his certification as an
adult in an appeal from a conviction, and appellant has not been
"convicted" of the offense of burglary. We agree.
Deferred adjudication is not a "conviction." Ex parte Welch, 981
S.W.2d 183, 185 (Tex.Crim.App.1998); McDougal v. State, 610 S.W.2d 509
(Tex.Crim.App.1981). A defendant may appeal an order of a juvenile court
certifying the defendant to stand trial as an adult and transferring the
defendant to criminal court "only in conjunction with the appeal of a
conviction of the offense for which the defendant was transferred to criminal
court." Tex.Code Crim.Proc.Ann. art. 44.47(a), (b) (Vernon
Supp.Pamph.2000); see also Light v. State, 993 S.W.2d 740, 743 (Tex.App.--Austin
1999), vacated on other grounds, 15 S.W.3d 104 (Tex.Crim.App.2000); Matter of
D.D., 938 S.W.2d 172, 173-74 (Tex.App.--Fort Worth, 1996, no pet.). According to
the record before us, appellant has not been convicted of burglary. Therefore,
he may not appeal the order certifying him to stand trial as an adult for that
offense. Accordingly, we conclude we lack jurisdiction over this appeal.
We dismiss this appeal for lack of jurisdiction.