Eldridge v. State, 731 S.W.2d 618 (Tex. App. 1987). · Go Syfert
Eldridge v. State, 731 S.W.2d 618 (Tex. App. 1987). Cases Citing This Book View Copy Cite
49 citation events (28 in the last 25 years) across 1 distinct court.
Strongest positive: Lyons v. State (texapp, 2007-03-20)
Treatment trajectory · 1990 → 2026 · click a year to view as-of
1990 2008 2026
Top citers, strongest first. 29 distinct citers.
cited Cited as authority (rule) Lyons v. State
Tex. App. · 2007 · confidence medium
Eldridge v. State, 731 S.W.2d 618, 619 (Tex.App.-Houston [1st Dist.] 1987, no pet.).
cited Cited as authority (rule) Freddie Lee Lyons v. State
Tex. App. · 2007 · confidence medium
Eldridge v. State , 731 S.W.2d 618, 619 (Tex. App. C Houston [1st Dist.] 1987, no pet.).
discussed Cited as authority (rule) Harry James Whitney v. State
Tex. App. · 2006 · confidence medium
App. [Panel Op.] 1979). 9: See Morrissey v. Brewer , 408 U.S. 471, 481 , 92 S. Ct. 2593, 2600 (1972). 10: Eldridge v. State , 731 S.W.2d 618, 619 (Tex. App.—Houston [1st Dist.] 1987, no pet.); see Gilbert v. State , 852 S.W.2d 623, 625-26 (Tex. App.—Amarillo 1993, no pet.) (“[A]rt. 42.12, § 5(b) . . . is not intended to preclude challenges to all of the rulings a trial court may potentially make in the course of a deferred adjudication proceeding. . . .
discussed Cited as authority (rule) Whitney v. State (2×)
Tex. App. · 2006 · confidence medium
ANN. art. 42.12, § 5(b) (Vernon Supp.2005). [7] Of course, a writ of habeas corpus under article 11.07 of the Texas Code of Criminal Procedure is always available, but it seems an unnecessary burden to place on the Texas Court of Criminal Appeals. [8] See Gagnon v. Scarpelli, 411 U.S. 778, 782 , 93 S.Ct. 1756, 1759-60 , 36 L.Ed.2d 656 (1973); Ruedas v. State, 586 S.W.2d 520, 523 (Tex.Crim.App. [Panel Op.] 1979). [9] See Morrissey v. Brewer, 408 U.S. 471, 481 , 92 S.Ct. 2593, 2600 , 33 L.Ed.2d 484 (1972). [10] Eldridge v. State, 731 S.W.2d 618, 619 (Tex.App.-Houston [1st Dist.] 1987, no pet.);…
discussed Cited as authority (rule) Michael Joseph Tatum v. State
Tex. App. · 2005 · confidence medium
Eldridge v. State , 731 S.W.2d 618, 619 (Tex. App.—Houston [1st Dist.] 1987, no pet.); see Gilbert v. State , 852 S.W.2d 623, 625-26 (Tex. App.—Amarillo 1993, no pet.) ("[A]rt. 42.12, § 5(b) . . . is not intended to preclude challenges to all of the rulings a trial court may potentially make in the course of a deferred adjudication proceeding. . . .
discussed Cited as authority (rule) Michael Joseph Tatum v. State
Tex. App. · 2005 · confidence medium
App. [Panel Op.] 1979). 5: See Morrissey v. Brewer , 408 U.S. 471, 481 , 92 S. Ct. 2593, 2600 (1972). 6: Eldridge v. State , 731 S.W.2d 618, 619 (Tex. App.—Houston [1st Dist.] 1987, no pet.); see Gilbert v. State , 852 S.W.2d 623, 625-26 (Tex. App.—Amarillo 1993, no pet.) ("[A]rt. 42.12, § 5(b) . . . is not intended to preclude challenges to all of the rulings a trial court may potentially make in the course of a deferred adjudication proceeding. . . .
discussed Cited as authority (rule) Tatum v. State (2×)
Tex. App. · 2005 · confidence medium
Eldridge v. State, 731 S.W.2d 618, 619 (Tex. App.-Houston [1st Dist.] 1987, no pet.); see Gilbert v. State, 852 S.W.2d 623, 625-26 (Tex. App.-Amarillo 1993, no pet.) ("[A]rt.42.12, § 5(b) ... is not intended to preclude challenges to all of the rulings a trial court may potentially make in the course of a deferred adjudication proceeding....
discussed Cited as authority (rule) Marissa Yvonne Trevino v. State
Tex. App. · 2005 · confidence medium
App. [Panel Op.] 1979). 9: See Morrissey v. Brewer , 408 U.S. 471, 481 , 92 S. Ct. 2593, 2600 (1972). 10: Eldridge v. State , 731 S.W.2d 618, 619 (Tex. App.—Houston [1st Dist.] 1987, no pet.); see Gilbert v. State , 852 S.W.2d 623, 625-26 (Tex. App.—Amarillo 1993, no pet.) ("[A]rt. 42.12, § 5(b) . . . is not intended to preclude challenges to all of the rulings a trial court may potentially make in the course of a deferred adjudication proceeding. . . .
discussed Cited as authority (rule) Trevino v. State (2×)
Tex. App. · 2005 · confidence medium
Eldridge v. State, 731 S.W.2d 618, 619 (Tex.App.-Houston [1st Dist.] 1987, no pet.); see Gilbert v. State, 852 S.W.2d 623, 625-26 (Tex.App.-Amarillo 1993, no pet.) ("[A]rt. 42.12, § 5(b) ... is not intended to preclude challenges to all of the rulings a trial court may potentially make in the course of a deferred adjudication proceeding....
discussed Cited as authority (rule) Marissa Yvonne Trevino v. State
Tex. App. · 2005 · confidence medium
Eldridge v. State , 731 S.W.2d 618, 619 (Tex. App.—Houston [1st Dist.] 1987, no pet.); see Gilbert v. State , 852 S.W.2d 623, 625-26 (Tex. App.—Amarillo 1993, no pet.) ("[A]rt. 42.12, § 5(b) . . . is not intended to preclude challenges to all of the rulings a trial court may potentially make in the course of a deferred adjudication proceeding. . . .
discussed Cited as authority (rule) Henderson v. State (2×) also: Cited "see"
Tex. App. · 2004 · confidence medium
But see Gilbert v. State, 852 S.W.2d 623, 626 (Tex.App.-Amarillo 1993, no pet.) (holding it had jurisdiction to determine whether the trial court’s failure to conduct competency hearing before adjudicating Gilbert's guilt constituted denial of his due process rights); Eldridge v. State, 731 S.W.2d 618, 619 (Tex.App.-Houston [1st Dist.] 1987, no pet.) (holding it had jurisdiction to determine whether Eldridge's denial of "hearing” on adjudication of guilt violated minimum requirements of due process).
discussed Cited as authority (rule) Atchison v. State
Tex. App. · 2004 · confidence medium
Appellant urges that “a proceeding in which there is insufficient evidence to support adjudication is not a ‘hearing’ within the meaning of [the statute].” In Eldridge v. State, 731 S.W.2d 618, 619 (Tex.App.-Houston [1st Dist.] 1987, no pet.), cited by appellant, the trial court proceeded to adjudication without a written motion.
discussed Cited as authority (rule) Emich v. State (2×)
Tex. App. · 2004 · confidence medium
Gilbert v. State, 852 S.W.2d 623, 626 (Tex.App.-Amarillo 1993, no writ) (competency to stand trial); DeLeon v. State, 797 S.W.2d 186, 188 (Tex.App.-Corpus Christi 1990, no pet.) (motion untimely); Eldridge v. State, 731 S.W.2d 618, 619 (Tex.App.-Houston [1st Dist.] 1987, no pet.) (no meaningful hearing); Dahlkoetter v. State, 628 S.W.2d 255, 257 (Tex.App.-Amarillo 1982, no pet.) (judge’s authority to hold hearing).
discussed Cited as authority (rule) Mark Atchison v. State
Tex. App. · 2003 · confidence medium
Appellant urges that "a proceeding in which there is insufficient evidence to support adjudication is not a 'hearing' within the meaning of [the statute]." In Eldridge v. State , 731 S.W.2d 618, 619 (Tex. App.--Houston [1st Dist.] 1987, no pet.), cited by appellant, the trial court proceeded to adjudication without a written motion.
cited Cited as authority (rule) Johnny Lee Morris v. State
Tex. App. · 2003 · confidence medium
Eldridge v. State , 731 S.W.2d 618, 619 (Tex. App.‒Houston [1st Dist.] 1987, no pet.).
cited Cited as authority (rule) Jose Angel Barraza v. State
Tex. App. · 2003 · confidence medium
Eldridge v. State , 731 S.W.2d 618, 619 (Tex. App.‒Houston [1st Dist.] 1987, no pet.).
cited Cited as authority (rule) Williams v. State
Tex. App. · 2001 · confidence medium
Eldridge v. State, 731 S.W.2d 618, 619 (Tex.App.—Houston [1st Dist.] 1987, no pet.) (citing Ruedas v. State, 586 S.W.2d 520, 523 (Tex.Crim.App. 1979)).
discussed Cited as authority (rule) Lopez, Michael v. State
Tex. App. · 2000 · confidence medium
App. 1993); Eldridge v. State , 731 S.W.2d 618, 619 (Tex. App.--Houston [1st Dist.] 1987, no pet.); Fuller v. State , 653 S.W.2d 65, 66-67 (Tex. App.--Tyler 1983, no pet.); Dahlkoetter , 628 S.W.2d at 257-58 .
discussed Cited as authority (rule) Tatum, Melva Sue v. State
Tex. App. · 2000 · confidence medium
App. 1993), Eldridge v. State , 731 S.W.2d 618, 619 (Tex. App.--Houston [1st Dist.] 1987, no pet.); Fuller v. State , 653 S.W.2d 65, 66-67 (Tex. App.--Tyler 1983, no pet.); Dahlkoetter , 628 S.W.2d at 257-58 .
discussed Cited as authority (rule) Perez, Sr., Michael Anthony v. State
Tex. App. · 1999 · confidence medium
App. 1993), Eldridge v. State , 731 S.W.2d 618, 619 (Tex. App.--Houston [1st Dist.] 1987, no pet.); Fuller v. State , 653 S.W.2d 65, 66-67 (Tex. App.--Tyler 1983, no pet.); Dahlkoetter v. State , 628 S.W.2d 255, 257-58 (Tex. App.--Amarillo 1982, no pet.).
discussed Cited as authority (rule) Small v. State (2×)
Tex. App. · 1998 · confidence medium
GOV'T CODE ANN. § 311.011(a) (Vernon 1988). [6] Black's Law Dictionary 721 (6 th ed. 1990). [7] Eldridge v. State, 731 S.W.2d 618, 619 (Tex. App.—Houston [1st Dist.] 1987, no pet.) [8] TEX.CODE CRIM.
discussed Cited as authority (rule) Kendall v. State (2×)
Tex. App. · 1996 · confidence medium
See, e.g., Gilbert v. State, 852 S.W.2d 623, 625-26 (Tex.App.—Amarillo 1993, no pet.); De Leon v. State, 797 S.W.2d 186, 187-88 (Tex.App.—Corpus Christi 1990, no pet.); Eldridge v. State, 731 S.W.2d 618, 619-20 (Tex.App.—Houston [1st Dist.] 1987, no pet.); Dahlkoetter v. State, 628 S.W.2d 255, 257-58 (Tex.App.—Amarillo 1982, no pet.).
cited Cited as authority (rule) Burger v. State
Tex. App. · 1996 · confidence medium
We disagree that Eldridge v. State, 731 S.W.2d 618, 619 (Tex.App.—Houston [1st Dist.] 1987, no pet.), supports appellant’s claim.
discussed Cited as authority (rule) Gilbert v. State
Tex. App. · 1993 · confidence medium
Similarly, in Eldridge v. State, 731 S.W.2d 618, 619 (Tex.App.—Houston [1st Dist.] 1987, no pet.), the First District Court of Appeals held that it had “jurisdiction to determine if a ‘hearing’ was held that satisfied the requirements of substantive and procedural due process.” Minimum due process rights guarantee the right of a probationer to actively contest a charge that his probation should be revoked.
cited Cited as authority (rule) Osborne v. State
Tex. App. · 1993 · confidence medium
See Homan v. Hughes, 708 S.W.2d 449, 451 (Tex.Crim.App.1986); Eldridge v. State, 731 S.W.2d 618, 619 (Tex.App.—Houston [1st Dist.] 1987, no pet.).
cited Cited as authority (rule) Goins v. State
Tex. App. · 1992 · confidence medium
Appellant cites Eldridge v. State, 731 S.W.2d 618, 619 (Tex.App. — Houston [1st Dist.] 1987, no pet.) to support his position that we have authority to review this case as a due process violation.
cited Cited "see" Nixon, Cleveland
Tex. App. · 2015 · signal: see · confidence high
See Eldridge v. State, 731 S.W.2d 618 (Tex. App. – Houston [1st Dist.] 1987) and Shockley v. State, 717 S.W.2d 922 (Crim.
cited Cited "see" Nixon, Cleveland
Tex. App. · 2015 · signal: see · confidence high
See Eldridge v. State, 731 S.W.2d 618 (Tex. App. – Houston [1st Dist.] 1987) and Shockley v. State, 717 S.W.2d 922 (Crim.
discussed Cited "see" De Leon v. State
Tex. App. · 1990 · signal: see · confidence high
See Eldridge v. State, 731 S.W.2d 618, 619 (Tex.App.—Houston [1st Dist.] 1987, no pet.) (hearing necessary); Fuller v. State, 653 S.W.2d 65, 66-67 (Tex.App.—Tyler 1983, no pet.) (defendant entitled to counsel at hearing); Dahlkoetter v. State, 628 S.W.2d 255, 257-258 (Tex.App.—Amarillo 1982, no pet.) (trial judge authority to adjudicate).
Michael Patterson ELDRIDGE, Appellant,
v.
the STATE of Texas, Appellee
01-86-0543-CR.
Court of Appeals of Texas.
Apr 23, 1987.
731 S.W.2d 618
Ken J. McClean, Houston, for appellant., John B. Holmes, Jr., Harris County Dist. Atty., Cathleen C. Herasimchuk, Bob Stabe, Harris County Asst. Dist. Attys., Houston, for appellee.
Dunn, Warren, Hoyt.
Cited by 45 opinions  |  Published

OPINION

DUNN, Justice.

This is an appeal from a conviction in a deferred adjudication proceeding where the appellant was denied the benefit of a “hearing” under Tex.Code Crim.P.Ann. art. 42.12 § 3d(b) (Vernon Supp.1987).

On July 11, 1986, the appellant entered a plea of guilty to the offense of burglary of a vehicle. He appeared before the presiding judge of the district court, accompanied by retained counsel. The State made no recommendation in the case, but the judge reduced the charge to a misdemeanor, granted the appellant deferred adjudication, placed him on one year’s probation, and assessed a $500 fine. After accepting the appellant’s plea and granting him deferred adjudication, the judge explained the terms and conditions of probation to the appellant. She asked the appellant, who was under oath, whether he had used drugs before. The appellant, just 18, a high-school student, vacillated and then stated that he had not used marihuana.

After his attorney left the courtroom, the appellant admitted to his mother that he had indeed smoked ⅝⅛ of a marihuana cigarette some five to six weeks earlier while on a camping trip. This discussion occurred because of the appellant’s prior discussion with a probation officer, who informed him that he would be tested for drugs that very day. The appellant and his mother then returned to the courtroom, and told the trial judge that the appellant had lied earlier. At this time, the appellant’s counsel was unavailable except by phone. The judge, the appellant, and his mother all spoke with the appellant’s attor[*619] ney. After these discussions, and without a written motion to adjudicate, the judge proceeded to final adjudication, sentenced the appellant to 30 days in jail, and assessed a $500 fine.

At the outset, the State argues that this Court does not have jurisdiction, because Texas law prohibits any appeal from the determination of an adjudication hearing. As authority for this position, the State cites Tex.Code Crim.P.Ann. art. 42.12 § 3d(b) (Vernon Supp.1987). This article states:

The defendant is entitled to a hearing limited to the determination by the court of whether it proceeds with an adjudication of guilt on the original charge. No appeal may be taken from this determination.

(Emphasis added.)

As a general rule, this Court may not entertain an appeal from the trial court’s adjudication of guilt. See Homan v. Hughes, 708 S.W.2d 449, 451 (Tex.Crim.App.1986); Contreras v. State, 645 S.W.2d 298, 299 (Tex.Crim.App.1983); Williams v. State, 592 S.W.2d 931, 932-33 (Tex.Crim.App.1979). However, article 42.12 also states that the defendant is “entitled to a hearing.” The United States Supreme Court has enunciated the “minimum requirements of due process” that must be observed in probation revocation hearings. Gagnon v. Scarpelli, 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973). They include: written notice of the claimed violations of probation, disclosure to the probationer of the evidence against him, the opportunity to be heard in person, and by counsel, and to present witnesses, the right to confront and cross-examine adverse witnesses, a “neutral and detached” hearing body, and a written statement by the factfinder as to the evidence relied on and the reasons for revoking probation. See also Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972); Ruedas v. State, 586 S.W.2d 520 (Tex.Crim.App.1979).

As noted above, none of these requirements, except the opportunity to be heard, albeit without advice of counsel or time for preparation, were satisfied in the case before us.

Article 42.12 does not deprive this Court of jurisdiction to determine if a “hearing” was held that satisfied the requirements of substantive and procedural due process. The Tyler Court of Appeals addressed an appellant’s claim that his right to counsel was violated when the trial court proceeded to final adjudication of his guilt when his counsel was not present. Fuller v. State, 653 S.W.2d 65 (Tex.App.—Tyler 1983, no writ). Although the appellant in Fuller was assessed punishment under article 42.-13 § 3d(b), rather than article 42.12 § 3d(b), rather than article 42.12 § 3d(b), the two sections were identical at the time Fuller was considered. Misdemeanor Adult Probation and Supervision Law, ch. 654, § 3d(b), 1979 Tex.Gen.Laws, Local & Spec. 1514, 1516, repealed by Probation, Parole and Executive Clemency — Administration and Procedure, ch. 427, § 3, 1985 Tex.Gen. Laws 2895, 2958. The Fuller court stated that they could not conclude from the record that the appellant had made a knowing, intelligent, and voluntary waiver of his right to counsel at the hearing prior to proceeding to final adjudication, and therefore, reversed the trial court’s order of final adjudication.

The State argues that appellant has not made any showing of injury or harm as a result of the State’s failure to file a written motion to adjudicate. This argument ignores the Court of Criminal Appeals statement that the:

proceeding to revoke probation, although not the same as a criminal trial, requires substantially all of the same procedure ... An adversary proceeding is afforded the probationer in which almost all of the rules of evidence and criminal procedure are applicable....

Whisenant v. State, 557 S.W.2d 102, 105 (Tex.Crim.App.1977).

We find that, in the case before us, no meaningful “hearing” was provided the appellant in the manner required by Scarpel-li.

The order of final adjudication revoking the appellant’s probation is reversed, and[*620] the order granting deferred adjudication is reinstated.