author: HERVEY, J.,

text:
    Homero Herrera HERNANDEZ, Appellant, v. The STATE of Texas.
    No. PD-2106-03.
    Court of Criminal Appeals of Texas.
    Nov. 2, 2005.

      Stephen Gustitis, Bryan, for appellant.
    Stephen Taylor, Attorney Pro Tern, Galveston, Matthew Paul, State’s Attorney, Austin, for state.
   OPINION

HERVEY, J.,

delivered the opinion of the Court

in which PJ., KELLER, MEYERS, PRICE, JOHNSON, KEASLER, HOLCOMB and COCHRAN, JJ., joined.

In this case, we address whether compliance with the notice provision of Tex.R. Evid. 404(b) is a condition precedent to admissibility of Rule 404(b) evidence and how to apply the Tex.R.App. PRoe. 44.2(b) harm analysis to a violation of the notice provision of Rule 404(b).

The notice provision of Rule 404(b), in relevant part, provides that other-crimes evidence may be admissible for limited, non-character conformity purposes provided that the prosecution gives the accused reasonable notice in advance of trial of its intent to use this evidence during its casein-chief. Rule 404(b) states:

Evidence of other crimes, wrongs, or acts is not admissible, to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident, provided that upon timely request by the accused in a criminal case, reasonable notice is given in advance of trial of intent to introduce in the State’s case-in-chief such evidence other than that arising in the same transaction.

Rule 44.2(b) requires an appellate court to disregard any error “that does not affect substantial rights.” Rule 44.2(b) states:

Any other error, defect, irregularity, or variance that does not affect substantial rights must be disregarded [by a court of appeals].

Appellant complained during his capital murder trial that the prosecution did not provide him with adequate notice of its intent to use various extraneous offenses that appellant committed. The Court of Appeals decided that the prosecution’s failure to comply with the notice requirement of Rule 404(b) was harmless because appellant was not surprised by this evidence.

The purpose of the rule 404(b) notice requirement is to prevent surprise (ie., rather than to exclude evidence). [Citation omitted]. Therefore, if the trial court erred in admitting the evidence due to lack of notice (as contrasted from other inadmissibility), we must determine whether the record reflects harm to appellant in terms of surprise. [Footnote omitted]. Such harm might exist, for example, if the lack of notice prejudiced appellant’s ability to contest the admissibility of the evidence, rebut it, or offer evidence or arguments to mitigate it. [Footnote omitted] However, we find no indication in the record (or appellant’s brief) of any such prejudice or that notice from the State could have materially enhanced defense counsel’s ability to counter this evidence. Therefore, we conclude that any error in admitting the extraneous offense evidence without the requisite notice was harmless [footnote omitted]....

We exercised our discretionary authority to review this decision. The grounds upon which we granted discretionary review ask:

1. Whether the Texas Rule of Evidence 404(b) notice requirement is a rule of evidence admissibility.
2. Whether the Court of Appeals can ignore the impact of evidence on the verdict admitted in violation of the [Rule 404(b) ] notice requirement when evaluating harm under [Rule 44.2(b) ].[]

We understand the State to argue that a trial court may admit Rule 404(b) evidence notwithstanding the State’s noncompliance with the notice provision of Rule 404(b) if the trial court determines that admitting the evidence would not frustrate the purpose of this notice provision of preventing surprise. See Hayden v. State, 66 S.W.3d 269, 272 (Tex.Cr.App.2001) (purpose of Rule 404(b) notice provision is to prevent surprise); Waltmon, 76 S.W.3d at 158 (nature of right potentially affected by State’s noncompliance with notice provision of Rule 404(b) is defendant’s right to be informed of other-crimes evidence State intends to use so as to be able to prepare a defense); Webb, 36 S.W.3d at 178 (Rule 404(b) notice provision intended to prevent surprise and lying behind the log by the State); Advisory Committee Notes to Fed. R.Evid. 404(b) (federal rule 404(b) notice provision intended to reduce surprise and to promote the early resolution of admissibility of Rule 404(b) evidence). The State, therefore, argues that the Rule 404(b) notice provision is not a rule of evidence admissibility.

We disagree. Rule 404(b) literally conditions the admissibility of other-crimes evidence on the State’s compliance with the notice provision of Rule 404(b). See Rule 404(b) (other-crimes evidence may be admissible “provided that upon timely request by the accused in a criminal case, reasonable notice is given in advance of trial of intent to introduce in the State’s case-in-ehief such evidence other than that arising in the same transaction”); Roethel, 80 S.W.3d at 281 (rejecting claim that State’s failure to comply with notice provision similar to notice provision of Rule 404(b) does not automatically render such evidence inadmissible). This is not to say that a trial court is without discretion to utilize its powers (such as granting continuances to reduce surprise) to permit the State to bring itself in compliance with the notice provision of Rule 404(b). But, a trial court must use these powers to ensure compliance and not to excuse noncompliance.

Since the notice requirement of Rule 404(b) is a rule of evidence admissibility, then it is error to admit Rule 404(b) evidence when the State has not complied with the notice provision of Rule 404(b). The Rule 44.2(b) harm standard is whether the error in admitting the evidence “had a substantial and injurious effect or influence in determining the jury’s verdict.” See King v. State, 953 S.W.2d 266, 271 (Tex.Cr.App.1997). The issue in cases like this is how to apply this standard. We find helpful the Austin Court of Appeals’ discussion in Roethel, 80 S.W.3d at 281-82:

Accordingly, we must assess harm from the violation of [a notice provision similar to Rule 404(b)’s] against its intended purposed] Although the violation of the notice provision resulted in the improper admission of evidence, we cannot employ the harm analysis used for violations of the rules of evidence concerning relevancy because the purpose of those rules differs from the purpose of the [Rule 404(b) notice provision]. The rules of evidence governing relevancy limit the use of evidence that may be unfairly prejudicial or misleading; for instance, evidence of other crimes, wrongs, or acts is inadmissible to prove the character of a person to show that the commission of the crime at issue is consistent with the defendant’s character, but is admissible for other purposes. [Citation omitted]. When evidence of an extraneous offense is admitted to prove such character conformity, we examine the record to determine how the admission of this substantively inadmissible evidence affected the jury’s verdict. [Citation omitted]. That test is appropriate because the erroneous admission of the evidence thwarts the rule’s purpose of shielding the jury from evidence used for improper reasons. [Citation omitted]. The notice requirement found in [the Rule 404(b) ], however, does not relate to the substantive admissibility of the evidence. [Citation omitted]. The lack of notice does not render the evidence inherently unreliable, but instead raises a question about the effect of procedural noncompliance. The purpose of the notice requirement is to enable the defendant to prepare to meet the extraneous offense evidence. [Citation omitted]. Thus, we must analyze how the deficiency of the notice affected [the defendant’s] ability to prepare for the evidence.

(Emphasis supplied).

We agree that the purpose of the Rule 404(b) notice provision of preventing surprise is a valid consideration in conducting a Rule 44.2(b) harm analysis. See Ford v. State, 73 S.W.3d 923, 926 (Tex.Cr.App.2002) (focusing on purpose of violated jury-shuffle statute in conducting Rule 44.2(b) harm analysis). However, we do not agree with appellant that this is inconsistent with King and the usual harm analysis applied to the improper admission of evidence.

When an appellate court determines that a jury’s verdict was substantially influenced by the improper admission of substantively inadmissible Rule 404(b) evidence, that influence on the jury’s verdict will always be “injurious” since there was no proper purpose for the jury to consider the evidence. But, this is not the case when substantively admissible Rule 404(b) evidence is improperly admitted because of the State’s failure to comply with the Rule 404(b) notice provision. Under these circumstances, the error in admitting this evidence may have had a substantial effect or influence on the jury’s verdict, but it cannot be said that this effect or influence was “injurious” if the defendant was not surprised by the evidence. See King, 953 S.W.2d at 271 (substantial right affected “when the error had a substantial and injurious effect or influence in determining the jury’s verdict”).

In this case, for example, appellant primarily complains about the admission of his own audio-recorded statements to the police which contained multiple references to his extraneous cocaine “pick-ups,” drug thefts, attempts to sell altered weapons, and shooting of guns. A copy of these audio tapes were given to appellant’s counsel months before he made a Rule 404(b) notice request. Appellant did not make any assertion at trial, or on appeal, that he was “surprised” by the notion that the State would offer into evidence those six tape-recorded statements which contained his oral admission of numerous acts of extraneous misconduct.

Appellant is correct in asserting that “simply because the defendant knew about the extraneous acts does not mean he has been given notice of the state’s intent to use the evidence ... [or that] he is properly prepared to defend against them.” A defendant who has asked for notice of what uncharged misconduct the State intends to use against him, may think, when the State fails to respond, that the prosecutor does not know of those prior peccadilloes. Thus, he need not be prepared to defend against their use because the State is either unaware of their existence or does not think they are relevant. On the other hand, it strains credulity to think that this defendant in this case was not on notice that the State intended to use his six recorded statements as a part of its evidence or that he had not prepared to defend against their use. Obviously the State was aware of the tape recordings, had timely furnished appellant’s counsel a copy of those recordings, and, considering how relevant they were to the capital murder charge, could be expected to use them at trial.

Further, appellant has failed to make any showing of how his defense strategy might have been different had the State explicitly notified him that it intended to offer the complete tape recordings at trial, or how his defense was “injuriously” affected by the State’s failure to provide reasonable notice. Appellant notes that “[rjelying upon the [SJtate’s notice is useful in giving the opponent the opportunity to investigate the extraneous acts, find witnesses to rebut the acts, and to develop evidence to mitigate them.” Although that may be true, appellant makes no argument that, because of the State’s failure to give him notice, he was unable to prepare his defense in this particular case. Surely, having been given the complete tape recordings, appellant’s counsel listened to them and thus was in a position to develop evidence to mitigate their impact.

The judgment of the Court of Appeals is affirmed.

WOMACK, J., concurred.

        . For example, the record reflects that the police obtained six taped statements from appellant, and that these statements were admitted into evidence at appellant’s capital murder trial. In these statements, appellant admitted committing various extraneous offenses. The prosecution provided these taped statements to appellant’s counsel soon after he was appointed to represent appellant. Appellant’s counsel later filed a Rule 404(b) notice request asking whether the prosecution intended to use extraneous offense evidence at appellant’s trial. The prosecution did not respond to this notice request, and claimed at trial that providing appellant’s counsel with the six taped statements complied with the Rule 404(b) notice provision. Appellant argued on direct appeal that the timing of his Rule 404(b) notice request ”implie[d] Appellant's desire to know, of the many extraneous offenses known by the state, which ones they intended to introduce.” The record also reflects that appellant’s counsel told the trial court during a pre-trial conference (after he had filed his Rule 404(b) notice request) that the prosecution had been "totally cooperative” in providing discovery.
      [APPELLANT’S COUNSEL]: Judge, [the prosecution] and I have been working together on the discovery, and I’m not sure we're totally done yet but I think the State has been totally cooperative in giving me what I need and access to what I need. The only other motions that may come up and need to be heard at time of trial is expert testimony and things of that nature.

      . Hernandez v. State, slip op. at 2-3, No. 14— 02-00489-CR, 2003 WL 22253337 (Tex.App.-Houston [14th Dist], October 2, 2003) (not designated for publication).

      . In his brief, appellant presents this ground as follows:
      Since [Rule 404(b) ] notice is a rule of evidence admissibility, under [Rule 44.2(b) ] a reviewing court must consider the impact of evidence admitted in violation of the rule upon the verdict itself, rather than simply the opponent's ability to contest the evidence, rebut it, or offer evidence and arguments to mitigate against it.
      We note a split among some intermediate appellate courts on exactly how to apply the Rule 44.2(b) harm analysis to a violation of the notice requirement of Rule 404(b). At least one court assessed harm by examining the entire record to determine whether the error had "a substantial and injurious effect on the jury’s decision.” See Waltmon v. State, 76 S.W.3d 148, 156-61, 161 (Tex.App.-Beaumont 2002). In another case, the Fourteenth Court of Appeals examined whether the error "substantially influenced the jury’s decision” by impacting the defendant’s "ability to present a viable defense.” See Webb v. State, 36 S.W.3d 164, 183 (Tex.App.-Houston [14th Dist.] 2000, pet. ref’d). Three courts of appeals similarly assessed harm by determining whether the error surprised the defendant. See Roethel v. State, 80 S.W.3d 276, 281-83 (Tex.App.-Austin 2002, no pet.) (determining whether violation of notice provision similar to notice provision of Rule 404(b) was done by the prosecution in bad faith and whether the defendant could have reasonably anticipated the evidence).

      . Federal Rule 404(b) states:
      Evidence of other crimes, wrongs, or acts is not admissible tó prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident, provided that upon request by the accused, the prosecution in a criminal case shall provide reasonable notice in advance of trial, or during trial if the court excuses pretrial notice for good cause shown, of the general nature of any such evidence it intends to introduce at trial.

      . We further note that the Advisory Committee’s notes to Federal Rule 404(b) also state that the notice requirement "serves as condition precedent to admissibility of Rule 404(b) evidence,” and that this evidence “is inadmissible if the court decides that the notice requirement has not been met.” See Johnson v. State, 43 S.W.3d 1, 4 (Tex.Cr.App.2001) (interpretation of federal rules persuasive in interpreting comparable state rules).

        . Roethel addressed how to apply a Rule 44.2(b) harm analysis to the State’s violation of the notice provision of Article 37.07, section 3(g), Tex.Code Crim. Proc., which requires the State, upon a defendant’s timely request, to provide notice "in the same manner required by Rule 404(b)” of its intent to introduce evidence of the defendant’s prior criminal record at the punishment phase of a noncapital case. See also Waltmon, 76 S.W.3d at 155 (cases involving adequacy or reasonableness of Rule 404(b) notice may be instructive as to those specific "notice of intent” issues arising under Article 37.07, section 3(g)).


source: Caselaw Access Project

author: HOLCOMB J.,

license: Public Domain

text:
    Patrick Wayne GREGORY, Appellant v. The STATE of Texas.
    No. PD-2010-04.
    Court of Criminal Appeals of Texas.
    Nov. 9, 2005.
    Henry L. Burkholder III, Houston, for Appellant.
    Amanda Peters, Asst. Dist. Atty., Houston, for State.
   HOLCOMB J.,

concurs in the refusal of the petition for discretionary review.

CONCURRING STATEMENT

I concur in the decision to refuse appellant’s petition for discretionary review. My reasons for doing so are both procedural and substantive. I write to explain those reasons so that, hopefully, hereafter, attorneys representing appellants on petition to this Court, at the very least, will stop repeating the errors which may cause members of this Court to refuse a petition on procedural grounds. My discussion begins with a review of the relevant facts.

Harris County Deputy Sheriff Lee Martin encountered appellant and two companions while patrolling a “high crime area” after midnight. The group was standing at the rear of a car that was illegally parked in a cul-de-sac. Officer Martin parked behind the car, but before he got out of his cruiser to approach the group, they walked from the rear of the car to the front of the car. Officer Martin frisked appellant for weapons and retrieved a small bag of marijuana from appellant’s back pocket. Appellant then admitted to having another small amount of marijuana in his sock.

Appellant was charged with the Class B misdemeanor of possession of marijuana, less than two ounces. Tex. Health & Safety Code Ann. § 481.121 (Vernon 2003). Appellant pleaded not guilty and filed a pre-trial motion to suppress the marijuana, claiming that the officer did not have probable cause to conduct the warrantless pat-down search under either federal or state law. At the hearing on the motion to suppress, Officer Martin testified, in relevant part, that he decided to approach the group because it appeared that they were trying to conceal something. Officer Martin further testified that, although he was not in fear for his safety, he searched appellant for weapons because, essentially, that was the routine practice when encountering people in high crime areas late at night. Appellant argued to the trial court that because appellant did not make any furtive gestures or otherwise cause Officer Martin to fear for his safety, the pat-down search was improper. Moreover, appellant argued, Officer Martin admitted that before he patted appellant down, Officer Martin was not in fact in fear for his safety.

The trial court denied appellant’s motion to suppress and recited findings of fact and conclusions of law into the record, which in sum, found the warrantless search reasonable due to the time and place of the search, for safety reasons, and because it appeared that the group was attempting to conceal something.

A jury found appellant guilty of the crime charged, and punishment was assessed by the trial court at thirty days in jail. On direct appeal, appellant complained of the trial court’s denial of his motion to suppress because Officer Martin lacked reasonable, articulable suspicion to believe that appellant was armed and dangerous. Gregory v. State, 175 S.W.3d 800 (Tex.App.-Houston [1st Dist.] 2004, pet. filed). The court of appeals affirmed the judgment of the trial court, correctly explaining that Officer Martin’s subjective belief that he was not in danger is not the proper focus when considering the constitutionality of a pat-down search. The court of appeals went on to hold that precedent supported a pat-down search under the totality of the circumstances.

Appellant filed a petition for discretionary review in this court. His sole ground for review was framed as follows:

THE TRIAL COURT COMMITTED REVERSIBLE ERROR IN RULING ADMISSIBLE THE SEIZURE OF THE MARIJUANA FOUND ON THE APPELLANT’S PERSON, WHERE DEPUTY MARTIN DID NOT HAVE REASONABLE SUSPICION TO BELIEVE THAT THE APPELLANT WAS ARMED OR DANGEROUS, IN VIOLATION OF THE APPELLANT’S FOURTH AMENDMENT RIGHT AGAINST UNREASONABLE SEARCHES AND SEIZURES, (emphasis added).

Discussion

This Court has repeatedly and consistently said that a petition for review should specifically address error in the court of appeals’s holding. Degrate v. State, 712 S.W.2d 755 (Tex.Crim.App.1986) (per curiam); State v. Consaul, 982 S.W.2d 899, 902 (Tex.Crim.App.1998) (Price, J., concurring) (“This court’s jurisdiction is limited to review of decisions by the courts of appeals.”); King v. State, 125 S.W.3d 517, 518 (Tex.Crim.App.2003) (Cochran, J., concurring statement) (citing Degrate, 712 S.W.2d at 756; Tex.R.App. P. 66, 68). Neither appellant’s ground for review nor his supporting argument complains about the court of appeals’s reasoning for affirming the trial court’s denial of his motion to suppress.

Although our authority is virtually absolute to grant review of any petition filed or any holding of the courts of appeals, we ordinarily refuse a petition for review that does not directly attack the holding of the court of appeals. See State v. Consaul, 982 S.W.2d at 902 (citing Tex.R.App. P. 66.1 & Sotelo v. State, 913 S.W.2d 507, 509 (Tex.Crim.App.1995)). Similarly, it is unlikely that a petition for discretionary review that is simply cut-and-pasted from the direct appeal brief will be granted because it necessarily will not complain about error committed by the court of appeals. See King, 125 S.W.3d at 520; Degrate, 712 S.W.2d at 756 (noting that a petition for review that merely reiterates the exact points of error from the direct appeal brief presents nothing for review). Because it is arguable whether appellant’s ground for review as stated and his supporting argument have even invoked our jurisdiction, see State v. Consaul, 982 S.W.2d at 902, refusal of the petition for procedural reasons are sound. See e.g., King, 125 S.W.3d at 521 (Kellee, P.J., concurring). However, my ultimate decision to join the refusal of the petition was based on substantive grounds. See id.

Pat-down searches conducted in high crime areas for safety reasons are not unreasonable, when accompanied with other facts supporting reasonable suspicion. Illinois v. Wardlow, 528 U.S. 119, 123, 120 S.Ct. 673, 145 L.Ed.2d 570 (2000); Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); cf. Gurrola v. State, 877 S.W.2d 300 (Tex.Crim.App.1994) (defendant’s mere presence in a high-crime area may not serve as the sole basis for a Terry stop).

A better argument, which unfortunately was not made in the trial court by way of the written motion to suppress or articulated at the hearing, would have been that Officer Martin did not have authority under federal or state law to extend his pat-down search into appellant’s back pocket and retrieve the small bag of marijuana. See Minnesota v. Dickerson, 508 U.S. 366, 375-79, 113 S.Ct. 2130, 124 L.Ed.2d 334 (1993) (extending “plain-feel” doctrine to contraband). A logical inference can be drawn that the small amount of marijuana here could not have been mistaken for a weapon, and thus, the pat-down exceeded its permissible scope. See id. at 378-79, 113 S.Ct. 2130 (where search exceeds that which is necessary to determine if the suspect is armed, the fruits of the search will be suppressed); see also Sibron v. New York, 392 U.S. 40, 65-66, 88 S.Ct. 1889, 20 L.Ed.2d 917 (1968). Therefore, it is my view that appellant’s only possible hope for relief (as far as the state courts are concerned) is to file a writ of habeas corpus complaining of ineffective assistance of trial counsel. See Dickerson, 508 U.S. at 379, 113 S.Ct. 2130.

With these comments, I join the decision to refuse appellant’s petition for discretionary review.

        . See Tex. Const. art. V, §§ 5 & 6. The careful practitioner will also be well-advised to read Clewis v. State, 922 S.W.2d 126 (Tex.Crim.App.1996) and Meraz v. State, 785 S.W.2d 146, 152-154 (Tex.Crim.App.1990) (courts of appeals are the final arbiters of fact questions) before filing a petition for discretionary review upon a complaint that the court of appeals’s erred in its review of the factual sufficiency of the evidence.

      . Regardless of my view of appellant’s preserved substantive complaint, nothing in this opinion should discourage appellant from filing a writ of certiorari to the Supreme Court of the United States. Although I believe the facts here would not preclude a pat-down search for weapons under the Fourth Amendment, that does not mean, naturally, that the Supreme Court would share my view. Admittedly, the facts here do present a very close call.


author: COCHRAN, J., JOHNSON, J., KELLER, P.J., MEYERS, J.,

text:
    Keith Lashone HOGANS, Appellant v. The STATE of Texas.
    No. PD-1932-04.
    Court of Criminal Appeals of Texas.
    Nov. 9, 2005.

      Robert A. Morrow, Spring, for Appellant.
    Eric Kugler, Asst. District Atty., Houston, for State.
   OPINION

COCHRAN, J.,

delivered the opinion of the Court

in which PRICE, WOMACK, KEASLER, HERVEY and HOLCOMB, JJ., joined.

In this case we hold that a court of appeals has jurisdiction to consider the merits of a claim that temporally arises before the act of adjudication if the claim directly and distinctly relates to punishment rather than to the decision to adjudicate. However, because appellant raised a claim of ineffective assistance of counsel that relates to the decision to adjudicate, it was properly dismissed on jurisdictional grounds by the court of appeals.

I.

Appellant was originally charged with the felony offense of aggravated assault after he pulled a gun on a driver he had rear-ended. He entered a no contest plea to the charge. The trial court deferred adjudication of guilt and placed him on community supervision for seven years.

Five years later, appellant was involved in a pair of auto accidents with Cordell Roberts. The State filed a motion to adjudicate based on three alleged violations of his community supervision conditions: assault of Cordell Roberts; failure to report to his community supervision officer; and failure to pay supervision fees. The State offered evidence on all three counts, but most of the evidence presented at the adjudication hearing related to the assault.

At the adjudication hearing, Cordell Roberts testified that appellant rear-ended his car as Mr. Roberts, with two female friends, pulled out of a Jack-in-the-Box restaurant. When appellant got out of his car, came up to Mr. Roberts and threatened to kill him, Mr. Roberts drove off in fear. Appellant followed him and rear-ended him again, this time “on purpose.” Appellant again approached Mr. Roberts and again threatened him, screaming, “I’m going to whip your ass.” Appellant reached inside Mr. Roberts’s car and removed the keys from the car’s ignition. Appellant then pulled Mr. Roberts out of his car, threw him against the car, and punched him in the jaw.

Appellant also testified at the adjudication hearing. He said that he had just picked up his two children at school when Mr. Roberts pulled out of a parking lot, hit appellant’s car, and then fled the scene. Appellant followed him to get his license plate number. When Roberts made a sudden U-turn, appellant tried to avoid hitting him but his car’s brakes locked. Appellant testified that after this second collision, he walked up and reached into Roberts’s car to grab his keys to prevent Roberts from fleeing again. Appellant said that Roberts followed him as appellant walked back to his own car. Roberts tried to grab his keys back, but when appellant resisted, Roberts punched him in the head. Appellant then hit back in self-defense.

Other defense witnesses testified that appellant did not appear angry after the car wreck, that he was worried about his kids in his car, and that he had asked that the police be called.

Defense counsel also called appellant’s children (ten-year-old Jerron and eight-year-old Kieara) to testify during the adjudication hearing. Both children testified that appellant punched Roberts, but that Roberts never hit appellant.

At the end of the adjudication hearing, the trial judge found “not true” on the failure to pay allegation, and “true” on the failure to report and assault allegations. In adjudicating appellant on the original aggravated assault charge, the trial judge said that he found the assault allegation to be the more important violation, in part because appellant “put his own children in high risk.” After adjudicating appellant’s guilt, the trial judge began the sentencing hearing.

During the sentencing hearing, Raynard Fontenot testified about the original “road rage” incident for which appellant had been placed on deferred adjudication. Mr. Fontenot testified that the traffic was bumper-to-bumper on Richmond Avenue in Houston when appellant ran into him at a very slow speed. Mr. Fontenot got out of his car to see what the damage was. Appellant also got out of his car, with his hand behind his back. When Mr. Fonte-not asked appellant what he had in his hand, appellant pulled out a gun, walked toward Mr. Fontenot, and put the gun to his neck. The two exchanged a few words, and then, when a police officer walked up, appellant fled.

The state closed its punishment case, and the defense put on three witnesses who all testified that they thought appellant was still a good candidate for regular probation.

Appellant appealed his conviction on the ground that he received ineffective assistance of counsel during the adjudication hearing when his attorney called his children to testify — an error which he alleged also affected his rights in the punishment phase. The court of appeals dismissed the appeal for lack of jurisdiction, stating, in part, that “[a]n appeal may only be taken from the proceedings occurring after the adjudication of guilt, such as assessment of punishment.”

n.

Under Article 42.12, Section 5(b) of the Code of Criminal Procedure, if the defendant violates a condition of deferred-adjudication community supervision, he is entitled to a hearing “limited to the determination by the court of whether it proceeds with an adjudication of guilty on the original charge. No appeal may be taken from this determination.” The Texas Legislature has decreed that the courts of appeals do not have jurisdiction to consider claims relating to the trial court’s determination to proceed with an adjudication of guilt on the original charge. Thus, if an appeal raises a claim of purported error in the adjudication of guilt determination, a court of appeals should dismiss that claim without reaching the merits.

However, that same statute continues: “After an adjudication of guilt, 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.” In Issa v. State we held that when “a trial court finds that an accused has committed a violation as alleged by the State and adjudicates a previously deferred finding of guilt, the court must then conduct a second phase to determine punishment.”

Thus, the defendant is entitled to a punishment hearing after the adjudication of guilt, and the trial judge “must allow the accused the opportunity to present evidence” in mitigation of punishment. In later cases, however, we decided that this requirement is satisfied as long as the defendant has an opportunity to present evidence in mitigation of guilt, either before or after adjudication. For example, we stated in Pearson v. State, “It is immaterial that the opportunity to present evidence came before the actual words of adjudication.”

Thus, “although an appellant cannot appeal the trial court’s decision to adjudicate guilt, an appellant sentenced under a guilty plea agreement can appeal aspects of the ‘second phase to determine punishment.’ ” Consequently, while a defendant may not raise on direct appeal a claim of ineffective assistance (or even an absence) of counsel that allegedly occurred at the proceeding to adjudicate guilt, he may raise on direct appeal a claim of ineffective assistance that allegedly occurred at the punishment proceeding.

The question remains: when mitigation or other punishment evidence is presented before adjudication, is it still “second phase” evidence that may be the subject of an appeal? The State argues that the answer is no — nothing that occurs before adjudication can be appealed because of the Section 5(b) rule that prohibits an appeal from a trial court’s determination to adjudicate guilt on the original charge. Appellant, on the other hand, argues that “anything that contributes to punishment must be reviewed, even if it happened during the adjudication hearing.”

Both of these positions are too extreme. As good advocates, both the State and the defense seek a touchdown, but the law lies on the fifty-yard line. As to the State’s position: if a defendant is not absolutely entitled to a separate sentencing hearing from which he may appeal punishment issues, then his right to appeal should not be thwarted by rolling the adjudication and sentencing hearings into one, thereby denying him an appeal of all aspects of the punishment evidence or procedures. At least in the context of combined adjudication-sentencing hearings, evidence and procedures that relate directly and distinctly to the sentence imposed are cognizable on direct appeal even when the events themselves occur before the magic words, “I find you guilty.”

On the other hand, appellant’s position proves too much; all evidence or procedures “contribute” to punishment, at least in the sense that, but for the decision to adjudicate, there would be no punishment to assess. The fact that a defendant may appeal sentencing claims that temporally occur during adjudication “proceedings” does not give an appellate court jurisdiction to consider any issue framed as a punishment issue. Rather, the asserted error must directly and distinctly concern the second phase; the claim must, on its face, relate to the sentence imposed, not to the decision to adjudicate. Any other rule would eviscerate the Section 5(b) bar on direct appeals of the decision to adjudicate. Appellant’s proposed rule— that any error occurring during the adjudication hearing which can be shown to have affected punishment is cognizable — does just that.

III.

In appellant’s case, the adjudication and punishment hearings were separate, and the allegation of ineffectiveness was rooted in counsel’s actions at the adjudication hearing. Appellant claims that his trial counsel’s act of calling his children to testify was constitutionally deficient assistance because the children contradicted appellant’s version of events. Appellant argues that the “ineffectiveness extended to the punishment the court assessed, which was demonstrated by the fact that the court referred to the defense’s own evidence just before sentencing appellant to imprisonment, when he was eligible for community supervision.” In sentencing appellant, the court stated,

Well, besides your technical alleged violations and the one I found, which is not significant enough to revoke or adjudicate, I would not have done it on the technical reporting; but you come in here on a case from May the 7th, 2003, where you do have your two minor children in the car, Kieara and [Jerron]. You have a minor fender bender. And I’m not concerned about whose fault it was; but the way you reacted. You took out after the guy, and by your own testimony, and Defense Exhibit 1 and 2, it was a major collision. It appears that was a rear-end collision. It wasn’t a tap. The real truth is you went after the guy with the kids in the car and endangered their lives and hit the Complainant, Mr. Roberts. Which not only did you endanger your children, you endangered Mr. Roberts, his passengers.
Then after doing that, that didn’t stop you. You go out and take the law into your own hands and you go and retrieve the car keys of this man, which is a pretty dangerous act. That man, if it had been another person, maybe had a gun or something, there may have been a dead body out there. I don’t know where you’re coming from. I don’t quite understand it. You are now, I consider, a danger to society. What’s going to happen next time you go out and have a minor fender bender? I don’t know what happens to you, but the next time it might result in a death. And one of the responsibilities of the Court is to protect society from defendants. It’s not only looking out for your welfare and what we’re going to do to rehabilitate you at some point, we have to look at protecting society. And to keep you on probation so you can go out and have another temper tantrum when you have another fender bender and something else triggers you and you pull a gun and assault somebody, it may be more dangerous than this Court, and me personally, would be very responsible for.
I’m not going to assess your punishment at 20 years, but I’m going to assess your punishment at five years in the Institutional Division of the Texas Department of Criminal Justice.

The trial judge’s statement does indeed show that he based his punishment decision on the evidence of the more recent “road rage” incident that formed the basis of the motion to adjudicate. But that same statement shows that the judge also based his adjudication decision on the evidence of the more recent “road rage” incident. In this case the appellate claim— ineffective assistance in calling appellant’s children as witnesses during the adjudication hearing — does not directly and distinctly affect only the “second phase.” Surely, all evidence offered during an adjudication hearing will “affect” or “impact” punishment. This “spill over” effect is natural, appropriate, and encouraged in our law. The fact that evidence may be probative to both the decision to adjudicate and to the assessment of an appropriate punishment does not convert adjudication evidence into punishment evidence.

Here, the court of appeals correctly dismissed appellant’s appeal, not because the purported error temporally occurred during the adjudication hearing, but because the purported error directly affected the decision to adjudicate. Its effect upon the trial court’s sentencing decision was simply part of the natural “spill over” effect of all evidence that shows the circumstances under which an offense occurred. That evidence is offered to prove criminal liability even though it may also be highly probative in determining an appropriate sentence.

Therefore, we affirm the court of appeals’s dismissal of appellant’s claim.

JOHNSON, J., filed a concurring opinion.

KELLER,P.J., filed a dissenting opinion.

MEYERS, J., filed a dissenting opinion.

JOHNSON, J.,

filed a concurring opinion.

I concur in the judgment of the Court. However, I believe that we have consistently misapplied the procedural statute in question, Tex.Code Crim. Proc., Art. 42.12, § 5(b).

The plain language of the statute states that no appeal may be taken from the determination by the trial court “whether it proceeds with an adjudication of guilt on the original charge.” The plain language does not bar appeal of issues that arose during the proceedings that terminated with a “determination” to proceed to an adjudication of guilt. We must use the plain language of the statute in our interpretation unless the plain language produces an absurd result that the legislature could not have intended. Boykin v. State, 818 S.W.2d 782 (Tex.Crim.App.1991). Cases such as Wright v. State, 592 S.W.2d 604 (Tex.Crim.App.1980), and Shields v. State, 608 S.W.2d 924 (Tex.Crim.App.1980), improperly expanded the inability to appeal from the plain language “determination” to include “hearing,” “process,” and “proceeding” and thus violated the teachings of Boykin.

Any interpretation that bars all appeals of any issues that arise before the magic words, “I find you guilty,” are said, opens the door to abuse. At some point, the inability to appeal procedural issues becomes a constitutional issue. What if the defendant is denied counsel or the state presents no evidence of a violation of any condition, but the trial court still adjudicates? What if the defendant is denied an opportunity to present evidence to rebut the evidence of the state or prevented from cross-examining state witnesses? What if the defendant is jailed for no other reason than that he refused to plead true to the allegations? At some point, the inability to appeal raises the specter of “unconstitutional as applied.” When rights guaranteed by the United States Constitution or the Texas Constitution are abrogated through state law, state law must give way.

If, in a given case, the conduct of the adjudication hearing violated a defendant’s right to counsel, due process, confrontation, equal protection, or any other constitutional right, the defendant must have some means of challenging the denial of those constitutional rights. To hold that Art. 42.12, § 5(b), bars all challenges, whatever their nature, to proceedings that result in adjudication elevates form over substance and produces a truly absurd result — that state procedural law overrules the United States Constitution.

While such extreme abuse is not common, it does occur. See, e.g., Phynes, infra. No such abuse occurred here. No constitutional violations are presented. I therefore concur in the judgment.

KELLER, P.J.,

filed a dissenting opinion.

I would hold that the scope of appellate jurisdiction after adjudication depends upon the relief sought: appellate courts do not have jurisdiction over claims that seek to overturn the trial court’s adjudication of guilt, but do have jurisdiction over claims that seek a new punishment hearing. This rule upholds the plain language of the statute and is easy to apply.

A. Prior Caselaw

Article 42.12, § 5(b) provides:

On violation of a condition of community supervision imposed under Subsection (a) of this section, the defendant may be arrested and detained as provided in Section 21 of this article. 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. After an adjudication of guilt, 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.

Caselaw has often been imprecise in its phrasing of the prohibition against appeal but has always reached results consistent with the “relief sought” rule. The issue was first addressed in Williams v. State, where the defendant challenged the trial court’s adjudication determination by claiming that there was insufficient evidence to support it. This Court held that “the statute clearly provides that the trial court’s decision to proceed with an adjudication of guilt is one of absolute discretion and not reviewable by this Court.” Faced with another sufficiency of the evidence challenge in Wright v. State, the Court cited Williams for the proposition that “no appeal may be taken from the hearing in which the trial court determines to proceed with an adjudication of guilt on the original charge.” The Court gave no explanation for the different wording used to phrase the rule originally expressed in Williams. Subsequent cases cited both Williams and Wright in holdings or dicta to variously say that the defendant could not appeal the adjudication “determination,” “decision,” “hearing,” or “proceedings.” What was known for sure from the holdings in these cases was that the defendant could not challenge on appeal the rationale for the trial court’s determination. But the wording of these opinions certainly suggested a broader prohibition of appeal. .

Phynes v. State appears to be the first case in which this Court clearly addressed a challenge to a trial court’s adjudication decision based, not upon a dispute with the trial court’s rationale for adjudication, but upon alleged errors in the adjudication proceedings. In that case, the defendant complained that the trial court conducted the adjudication hearing while defense counsel was absent. In holding that the deferred adjudication statute deprived appellate courts of jurisdiction to address the defendant’s complaint, we said:

[A]s there is nothing in the Texas Constitution which guarantees the right to appeal a criminal conviction, that right is only as provided by the legislature. It naturally follows that when a legislative enactment says an accused may not appeal a determination to adjudicate, there is no right to do so. Therefore, even if appellant’s right to counsel was violated, he may not use direct appeal as the vehicle which to seek redress.

But we noted that the defendant had claimed no error “with respect to the punishment portion of the trial court’s judgment or the proceedings after the adjudication.” So, while Phynes barred consideration of an error that occurred during the adjudication hearing, it did so in the context of an appellate claim seeking to overturn the adjudication itself. The opinion did not purport to address an error occurring' in those proceedings but impacting punishment, for which a new punishment hearing was sought, as no such error was alleged. Moreover, the Court’s use of the phrase “punishment portion of the trial court’s judgment” to identify the issue not before it, instead of the phrase “punishment hearing” or “punishment proceedings,” suggests that the Court anticipated that appealable punishment error might include more than just those errors occurring at the punishment stage of the case.

In Connolly v. State, the Court addressed a defendant’s claim that the State failed to exercise due diligence in bringing the defendant to adjudication. After discussing Williams, Wright, Phynes, and Olowosuko, the Court stated: “In all these cases, we have tried to make clear that, given the plain meaning of Article 42.12, § 5(b), an appellant whose deferred adjudication probation has been revoked and who has been adjudicated guilty of the original charge, may not raise on appeal contentions of error in the adjudication of guilt process.” Viewed in isolation in its broadest possible meaning — that no errors occurring during the adjudication phase of the process are appealable — this statement finds support in the text of only one of the four opinions discussed (Wright) and is not required by the results arrived at in any of this Court’s prior cases. On the other hand, if the italicized phrase is understood to really mean “contentions of error in the adjudication of guilt process on the basis of which the defendant seeks relief from the adjudication determination,” Connolly’s statement would be more in line with the opinions it discussed. And the defendant’s claim in Connolly was consistent with claims made in prior cases in that the relief sought was the overturning of the trial court’s adjudication decision.

The final case of importance is Kirtley v. State, where the Court made clear that errors occurring at punishment were not covered by the statutory prohibition against appealing the trial court’s adjudication determination. The defendant contended that he was entitled to a new punishment hearing because the court reporter’s record of the original punishment hearing was destroyed. The Court decided that Phynes was “not controlling because the defendant there was attempting to appeal a denial of counsel at the proceeding adjudicating guilt” and said that it had “specifically noted that the defendant made no complaint as to the ‘punishment portion of the trial court’s judgment or the proceedings after the adjudication.’ ” While one might construe the italicized language as a manifestation of belief that appealability turns upon the nature of the proceeding in which the error occurs, one might also read the language as simply emphasizing that the error in Phynes related to the adjudication of guilt, rather than to punishment.

It is by way of these cases that the Court has now arrived at the question before us. Given the inexact language in the cases, it is not surprising that we are now considering barring appeal of any and all issues that do not arise strictly from the punishment phase of the proceedings. It is time to return to the language of the statute.

B. The Statutory Language

Under Boykin v. State, we interpret a statute in accordance with the plain meaning of its language unless the language is ambiguous or the plain meaning would lead to absurd results that the Legislature could not have possibly intended. Here the statutory language is straightforward: it says that no appeal may be taken from the “determination.” It does not say that no appeal may be taken from the adjudication “hearing.” The plain import of the statutory wording is that a trial court’s decision to adjudicate guilt is immune from appellate review. Nothing in the language of the statute prohibits the defendant from complaining on appeal that his punishment was improperly assessed because of something improper occurring during the adjudication hearing.

There is another context in which we already classify errors that occur before the punishment proceedings as punishment errors: capital cases. Under Article 44.29(c), “error affecting punishment only” in a death penalty case results in a new punishment hearing, rather than an entire new trial. In Ransom v. State, this Court held that voir dire error, which obviously did not occur at the punishment stage, was nevertheless “error affecting punishment only” where the error involved a challenge for cause on the basis that the juror could not follow the law with regard to the future dangerousness special issue. By contrast, in non-capital cases, where the relevant statute calls for a new punishment hearing for those errors “made in the punishment stage of trial,” the Court determined that, in a trial on both guilt and punishment, voir dire error relating to a punishment issue required reversal of the conviction and a new trial of the entire case because the error did not occur at the punishment stage, as specified by the statute. The Legislature knows how to attach appellate consequences to events occurring during a specific stage of trial. It could easily have said that no appeal would he from errors occurring during the adjudication hearing. Instead, it chose the more narrow prohibition against appealing the adjudication determination.

Moreover, a broad “hearing” appealability rule undercuts the right of appeal that is recognized in the deferred adjudication statute. As set out above, § 5(b) guarantees that, after adjudication, the defendant’s appeal will take place as if adjudication had never been deferred. This generally means that the defendant gets to appeal the imposition of punishment. But the reality is that most evidence relevant to punishment is also relevant to the trial court’s decision to" adjudicate guilt, and therefore will be admissible at the adjudication hearing. A “hearing” rule allows for anomalous results depending upon when the State decides to introduce a particular piece of aggravating evidence. The State’s decision to introduce particular evidence at the adjudication hearing could result in depriving the defendant of punishment issues that would have been appealable had adjudication not been deferred, contrary to the “as if the adjudication of guilt had not been deferred” language of the statute.

The Court’s hybrid “directly and distinctly relates to punishment” approach is better than a straight “hearing” rule, but because so much evidence that is relevant to punishment is also relevant to the adjudication determination, very few things will satisfy the distinctness requirement. As with the “hearing” rule, the hybrid rule will cause appealability to turn upon when the State happened to introduce certain aggravating evidence.

The hybrid rule also turns the straightforward sentence, “No appeal may be taken from this determination,” into a complex inquiry into whether a particular claim, despite its presentation at the adjudication phase, distinctly relates to punishment. The Court says that the proper resolution of the case “lies on the fifty-yard line,” but in my opinion, and with all due respect, this is not a fifty-yard-line statutory provision. This is the type of statutory provision that suggests application of a bright-line rule. And the “relief sought” approach is a bright-line rule that is easy to apply.

The Court further contends that a rule without the distinctness requirement would “eviscerate the § 5(b) bar on direct appeals of the decision to adjudicate.” It is true that a “relief sought” rule would permit appeal of many more issues than would the hybrid rule, but the statute already contemplates the possibility of an appeal of punishment issues in any case in which guilt is adjudicated. And more to the point, I think the “relief sought” rule gives effect to the narrow language of the § 5(b) bar. The bar is not against appealing certain issues. It is against appealing a certain disposition.

C. Conclusion

Loose language in an opinion can take on a life of its own. The touchstone of statutory interpretation must always be the statute itself, and language found in a prior opinion must be evaluated in light of the statute and the fact situation presented in the case. The trial court’s “determination” is what the statute says cannot be appealed, and prior cases barring appeal have all dealt with attempts to invoke appeal to undo a trial court’s adjudication determination.

I conclude that appealability under § 5(b) turns upon the relief sought. Claims that seek to overturn the adjudication determination are not appealable, but claims that seek a new punishment hearing are.

In the case before us, part of applicant’s ineffective assistance claim alleged that the children’s testimony impacted the trial court’s assessment of punishment, and as a result entitled applicant to a new punishment hearing. To the extent it made such an allegation, the claim sought relief in the form of a new punishment hearing and was appealable.

I respectfully dissent.

MEYERS, J.,

filed a dissenting opinion.

Even though the ineffective assistance of counsel claim related to events occurring at the adjudication hearing, I would hold that the court of appeals has jurisdiction to determine the appellant’s claim since the error affected punishment. Therefore, I respectfully dissent.

      . We granted appellant’s sole ground for review:
      The court of appeals erred in holding that appellant could not appeal his conviction, when the error claimed affected the punishment assessed, as well as the trial court's decision to adjudicate guilt.

      . Hogans v. State, No. 14-03-00897-CR, 2004 WL 2251162, 2004 Tex.App. LEXIS 8927 (Tex.App.-Houston [14th Dist.] 2004).

      .Jerron testified that his dad "turned around and then hit the boy.... The boy didn't hit my dad.” Kieara testified that, after the second wreck, "my dad had got out and took the keys out of the man’s car, and the man had got out and my dad had punched him and they ran down the street. And my dad came back to check on me and Jerron.” Kieara said she did not see the man "do anything” to her dad.

      . Hogans v. State, 2004 WL 2251162, at *1, 2004 Tex.App. LEXIS 8927 at *2.

      . Tex.Code Crim. Proc art. 42.12, § 5(b).

      . Wright v. State, 592 S.W.2d 604, 606 (Tex.Crim.App.1980) ("under the terms of the [deferred adjudication] statute, no appeal may be taken from the hearing in which the trial court determines to proceed with an adjudication of guilt on the original charge”). The Legislature’s prohibition includes all complaints related to the trial court's decision to proceed to an adjudication of guilt, except for those challenging the trial court’s jurisdiction. See, e.g., Nix v. State, 65 S.W.3d 664, 667-68 (Tex.Crim.App.2001) (recognizing applicability of "void judgment” exception to the deferred adjudication proceedings).

      . Connolly v. State, 983 S.W.2d 738, 741 (Tex.Crim.App.1999); Phynes v. State, 828 S.W.2d 1, 2 (Tex.Crim.App.1992) (stating that "as there is nothing in the Texas Constitution which guarantees the right to appeal a criminal conviction, that right is only as provided by the legislature. It naturally follows that when a legislative enactment says an accused may not appeal a determination to adjudicate, there is no right to do so”).

      . Tex.Code Crim. Proc. art. 42.12, § 5(b).

      . 826 S.W.2d 159 (Tex.Crim.App.1992).

      . Id. at 161.

      . Id.

      . Pearson v. State, 994 S.W.2d 176, 179 (Tex.Crim.App.1999); Hardeman v. State, 1 S.W.3d 689, 690-91 (Tex.Crim.App.1999) ("Issa does not stand for the absolute right to a separate punishment hearing. Instead, it requires the defendant to have the opportunity to present evidence in mitigation of guilt if not afforded during adjudication.”).

      . Pearson, 994 S.W.2d at 179.

      . Kirtley v. State, 56 S.W.3d 48, 51 (Tex.Crim.App.2001).

        . Phynes v. State, 828 S.W.2d at 2. Certain constitutional claims may, of course, be raised in a post-conviction petition for writ of habeas corpus. See id. ("even if appellant's right to counsel was violated, he may not use direct appeal as the vehicle which to seek redress”) (emphasis added); Olowosuko v. State, 826 S.W.2d 940, 942 n. 2.(Tex.Crim.App.1992) (Overstreet, J., concurring) (noting that defendant’s complaint concerning the voluntariness of his plea of "true” was, in reality, a challenge to the trial court's decision to proceed with an adjudication of guilt on the original charge, and his remedy, if any, is by way of post-conviction writ of habeas corpus); Tillman v. State, 919 S.W.2d 836, 838 (Tex.App.-Fort Worth 1996, pet. ref’d).

        . Kirtley, 56 S.W.3d at 51.

      . For example, one might plausibly argue that "but for” Officer Obie’s illegal search of the probationer, the rock of cocaine would never have been found. And if the rock of cocaine were never found, no motion to adjudicate would have been filed and no decision to adjudicate would have been made, so obviously no sentence would have been imposed. In that sense, the purportedly illegal search "contributes” to the defendant’s sentence.

      . See Butler v. State, 135 S.W.3d 866, 868 (Tex.App.-Houston [1st Dist.] 2004, no pet.). The court explained,
      “Although framed as challenges to post-adjudication rulings, i.e., challenges to the trial court's denial of his motions for new trial and its evidentiary ruling admitting the prosecutor's affidavit, the substance of appellant’s first, second, and third issues are in fact impermissible challenges to the trial court's decision to proceed to adjudication of appellant's guilt. In support of these issues, appellant argues that his pleas were involuntary because he was not taking the proper bipolar medication at the time of the adjudication proceeding. That appellant’s first, second, and third issues constitute a challenge to the trial court's decision to proceed to adjudication becomes apparent when read in the context of the record in this case.”

        Id.

      . Of course, had appellant’s counsel called his two children to testify to their eyewitness account of the "road rage” incident during the punishment phase, then the elicitation of that same evidence could have formed the basis of an ineffective assistance of counsel claim on direct appeal.

      . See Tex.Code Crim. Proc. art. 37.071 § 2(d)(1) ("in deliberating on the issues submitted under Subsection (b) of this article, the jury shall consider all evidence admitted at the guilt or innocence stage and the punishment stage, including evidence of the defendant’s background or character or the circumstances of the offense that militates for or mitigates against the imposition of the death penalty”).

      . Compare Pearson v. State, 994 S.W.2d at 179. In that case, prior to adjudication, Pearson was sworn and testified in response to questions from his attorney as to "anything you would like to address the Court on regarding the sentencing.” Id. If Pearson had raised an ineffective assistance of counsel claim related to this exchange, although it arose before adjudication, the issue would have been cognizable. The purported error, had it been raised, would have been clearly, distinctly, and directly related to punishment, not to the decision to adjudicate.

      . Phynes v. State, 828 S.W.2d 1 (Tex.Crim.App.1992).

      . Ramon v. State, 159 S.W.3d 927 (Tex.Crim.App.2004).

      . Olowosuko v. State, 826 S.W.2d 940, 942-43 (Tex.Crim.App.1992) (Overstreet, J., concurring).

      . Tex.Code Crim. Proc., Art. 42.12, § 5(b).

      . 592 S.W.2d 931, 932 (Tex.Crim.App.1979).

      . Id. at 932-933 (emphasis added).

      . 592 S.W.2d 604, 605 (Tex.Crim.App.1980).

      . Id. (emphasis added).

      . Shields v. State, 608 S.W.2d 924, 925 (Tex.Crim.App.1980)(dzcta: "proceedings”); McDougal v. State, 610 S.W.2d 509, 509 (Tex.Crim.App.1981)(dicfa: "decision”); Daniels, 615 S.W.2d 771, 771 (Tex.Crim.App.l981)(sufficiency of the evidence claim: "hearing”); Contreras v. State, 645 S.W.2d 298, 298 (Tex.Crim.App.1983)(refusing petition for discretionary review with summary statement that court of appeals did not have jurisdiction over the appeal, grounds for appeal not revealed in the opinion); Rus

        sell v. State, 702 S.W.2d 617, 618 (Tex.Crim.App.1985)(grounds concerning revocation of probation and entry of adjudication of guilt: "hearing”); Ex parte Hernandez, 705 S.W.2d 700, 702 (Tex.Crim.App.1986)(dicta: "determination”); Olowosuko v. State, 826 S.W.2d 940, 941-942 (Tex.Crim.App.1992)(contending that conditions of probation were vague and unenforceable, or were not violated: "determination," "decision”).

      . 828 S.W.2d 1 (Tex.Crim.App.1992).

      . Id. at 1.

      . Id. at 2.

      . Id. at 1 n. 1.

      . 983 S.W.2d 738, 740 (Tex.Crim.App.1999).

      . Connolly, 983 S.W.2d at 740-741.

      . Id. at 741 (emphasis added).

      . 56 S.W.3d 48 (Tex.Crim.App.2001).

      . Id. at 50.

      . Id. at 51 (emphasis in original).

      . 818 S.W.2d 782, 785 (Tex.Crim.App.1991).

      . Tex.Code Crim. Proc., Art. 44.29(c)("If any court sets aside or invalidates the sentence of a defendant convicted of an offense under Section 19.03, Penal Code, and sentenced to death on the basis of any error affecting punishment only, the court shall not set the conviction aside but rather shall commence a new punishment hearing ...”)

      . 920 S.W.2d 288, 297-298 (Tex.Crim.App.1994)(opinion on rehearing), cert. denied, 519 U.S. 1030, 117 S.Ct. 587, 136 L.Ed.2d 516 (1996).

      . Art. 44.29(b).

      . Carson v. State, 6 S.W.3d 536 (Tex.Crim.App.1999).


author: PER CURIAM. KELLER, P.J.

text:
    Ex Parte Barry Sheene BYARS, Applicant.
    No. AP-75293.
    Court of Criminal Appeals of Texas.
    Nov. 9, 2005.
    Bruce N. Smith, Beaumont, for Appellant.
    Wayln G. Thompson, Asst. District Atty., Beaumont, Matthew Paul, State’s Atty., Austin, for State.
   OPINION

PER CURIAM.

This is an application for a writ of habeas corpus that was transmitted to this Court by the clerk of the trial court pursuant to the provisions of Texas Code of Criminal Procedure, Article 11.07. Ex parte Young, 418 S.W.2d 824, 824 (Tex.Crim.App.1967). Applicant was convicted of the first degree felony offense of injury to a child. Following the trial court’s decision to revoke his community supervision and finally adjudicate him guilty, Applicant was sentenced to imprisonment for ten years. Applicant did not perfect an appeal.

In the instant application, Applicant contends that newly discovered evidence specifically, the complainant’s recantation of the allegation made against Applicant, unquestionably establish that he is actually innocent of the instant offense.

Following a live evidentiary hearing, the trial court has found that Applicant “has shown by clear and convincing evidence that no reasonable juror would convict him in light of the newly discovered evidence of actual innocence.... ” After a review of the record, we find that the trial court’s determination is supported by the record, and find that Applicant is entitled to habe-as corpus relief. Ex parte Elizondo, 947 S.W.2d 202 (Tex.Crim.App.1996). The judgment in cause number 91788 from the Criminal Judicial District Court of Jefferson County, Texas, is vacated. Applicant is remanded to the custody of the Sheriff of Jefferson County to answer to the indictment.

A copy of this opinion shall be sent to the Texas Department of Criminal Justice, Correctional Institutions Division.

KELLER, P.J. filed a concurring opinion, in which HERVEY, J. and COCHRAN, J. joined.

KELLER, P.J.

filed a concurring opinion, in which HERVEY, J. and COCHRAN, J. joined.

The Confrontation Clause reflects a judgment about how the reliability of testimony can best be determined. The Clause commands that reliability be assessed by testing in the crucible of cross-examination. That judgment is valid regardless of the circumstance that the Confrontation Clause does not apply to the State.

The habeas court in this case examined the witness in camera, with a court reporter present, but in the absence of the prosecuting attorney and of the defense attorney. The State did not object to the procedure. Perhaps the habeas court wanted to protect the witness from unnecessary distress — which is an admirable and understandable goal. But adversarial testing is the constitutionally prescribed method of assessing reliability, and it “beats and bolts out the Truth much better” than the procedure used here.

So the Court overturns an error-free conviction on the basis of testimony that was not subjected to cross-examination. I concur in the Court’s judgment because the trial court’s findings are supported by the record, but my confidence in the outcome would have been higher had the recanting witness been cross-examined by the State.

      . Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 1370, 158 L.Ed.2d 177 (2004).

      . Id.

      . Id. citing M. Hale, History and Analysis of the Common Law of England 258 (1713).


author: MEYERS, J.,

text:
    Charles Ray IRVING, Appellant v. The STATE of Texas.
    No. PD-91-04.
    Court of Criminal Appeals of Texas.
    Nov. 9, 2005.

      Bruce N. Smith, Beaumont, for Appellant.
    Chris Wohleb, Asst. County & Dist. Atty., Orange, for State.
   OPINION

MEYERS, J.,

delivered the opinion of the Court,

in which PRICE, WOMACK, JOHNSON, and COCHRAN, JJ., joined.

We withdraw our opinion of April 27, 2005 and substitute the following opinion. Appellant’s motion for rehearing is overruled.

Appellant Charles Ray Irving was convicted of the offense of aggravated assault. On appeal, Appellant argued that the trial court erred in failing to instruct the jury on the lesser-included offense of simple assault. The Ninth Court of Appeals held that Appellant was entitled to an instruction on the lesser-included offense and reversed and remanded the case to the trial court. We will reverse.

I. Facts

The evidence presented at trial showed that Appellant had known the victim, Phyllis Chargois, for almost 20 years, and that they had previously lived together, although they were not living together at the time of the offense. Chargois testified that Appellant followed her from work on August 3, 2000, to a bar, and then to her sister’s house in Louisiana. Chargois said she drove home the next morning, at which time she found Appellant inside her home. Chargois testified that Appellant was holding a bat, told her not to run and that it was “her day to die,” and then struck her several times with the bat. Chargois suffered injuries including a broken ankle, leg, and arm. She also testified she fell against a glass shelf with Appellant during the attack and broke the glass, cutting herself. According to testimony at trial, Appellant then went to get a towel for Chargois to stop the bleeding, and Char-gois crawled out her front door for help. A neighbor across the street testified that he saw Chargois being held by Appellant, and that it looked as if Appellant was “fixing to twist her head off.” The neighbor then told Appellant to drop Chargois, and then helped Chargois to his house where he called the police.

Appellant testified to a different version of events at trial. He denied following Chargois as she left her job, and claimed that he went to her home only because he was supposed to meet her there to retrieve some of his personal belongings. He testified that when he encountered Chargois in her home, she began cursing at him, and he picked up a bat, but he then claimed he threw the bat down and denied, ever striking Chargois with it. He did acknowledge that he struggled physically with Chargois, and that they fell into the glass shelves in the process, but said that he did not attack nor seriously injure her. He then testified that when he went to get her a towel for the cut on her head resulting from the fall into the glass shelves, she went out the door. He said he saw her laying on the walkway outside the door, and that he assumed her injuries came from a fall on the walkway.

Dr. Wesley Palmer was the physician who treated Chargois at the hospital. He testified that Chargois suffered broken bones in her arm and leg, injuries to her hip and thigh, and a head laceration. According to Dr. Palmer’s testimony, the extent of the injuries was such that Chargois had to have pins inserted into the bones in her arm. He testified that, in his opinion, Chargois suffered “serious bodily injury” according to the legal definition. Dr. Palmer stated that Chargois told him that her ex-boyfriend hit her with a bat. He also said Chargois’ injuries were consistent with being struck with a bat, and testified that, while it was possible the injuries could have been caused by a fall to the floor, the extent and number of injuries would have required multiple falls.

II. Appellate Decision and Grounds for Review

The court of appeals reversed Appellant’s conviction and remanded for a new trial. The court considered whether or not Appellant was entitled to the requested jury instruction on the lesser-included offense of simple assault and concluded that simple assault is necessarily a lesser-included offense of aggravated assault, and has long been recognized as such. The court then held that Appellant was entitled to the lesser-included offense instruction of simple assault because there was “evidence, which if believed by the trier of fact, would constitute evidence of simple assault.” Thus, the court of appeals held that the trial court erred by failing to include the instruction for the lesser-included offense of simple assault.

This Court granted review on two grounds: First, did the court of appeals err in holding that the trial court erred in failing to instruct the jury on the lesser offense of assault? And second, must a trial court instruct a jury on a lesser offense where the conduct establishing the lesser offense is not “included” within the conduct charged?

I. Law

We first address the question posed in the second ground for review stated above. A defendant is entitled to a lesser-included offense instruction in the jury charge if (1) the requested charge is a lesser-included offense of the offense charged, and (2) there is some evidence that if the defendant is guilty, he is guilty only of the lesser offense. To determine if an offense is a lesser-included-offense, we look to Texas Code of Criminal Procedure Art. 37.09, which states in relevant part:

An offense is a lesser included offense if:
(1) it is established by proof of the same or less than all the facts required to establish the commission of the offense charged; (emphasis added)

We now look to the indictment to determine what offense was charged, and whether Appellant’s request for a jury instruction on simple assault was properly denied.

II. Analysis

The court of appeals held that simple assault is necessarily a lesser-included offense of aggravated assault, citing a Court of Criminal Appeals case from 1888. What the court fails to consider, however, is that while simple assault may be a lesser-included offense of aggravated assault in some cases, here, Appellant is asking for a lesser-included offense instruction based on facts not required to establish the commission of the offense charged. In other words, the conduct constituting the lesser-included offense for which Appellant requested an instruction is different from the conduct which was alleged in the charging instrument for Appellant’s aggravated— assault charge. The indictment for the aggravated assault alleged that Appellant committed aggravated assault against the victim by two separate theories, namely, that Appellant attacked the victim with a deadly weapon, to wit, a baseball bat, and that Appellant caused the victim serious bodily injury by hitting her with the bat. Here, Appellant is asking for an instruction for the offense of simple assault stemming from the conduct of grabbing the victim and eventually falling on top of her, and not hitting the victim with a baseball bat.

Because the conduct constituting the offense of assault for which the Appellant wanted an instruction is not the same as the conduct charged in the indictment for aggravated assault, assault by means of grabbing the victim and eventually falling on top of her is not a lesser-included offense of aggravated assault by striking the victim with a bat. This offense fails to meet the requirements of Texas Code of Criminal Procedure Art. 37.09 because the same facts or less than the same facts required to prove the greater aggravated assault offense are not required to prove the assault offense. Proof that Appellant grabbed and fell on top of the victim is not required to prove aggravated assault by hitting the victim with a bat. Assault by grabbing and falling on someone may be a lesser-included offense of aggravated assault in some instances, but not as the greater offense was charged in the indictment in this case.

Thus, as to the second ground for review, we re-affirm our decision in Hayward. A trial court is not required to instruct a jury on a lesser included offense where the conduct establishing the lesser offense is not “included” within the conduct charged; i.e. within the facts required to prove the charged offense.

In answer to the question posed in the first ground for review, we hold that the court of appeals erred by holding that the trial court erred in failing to give the jury the lesser-included offense instruction for assault. For the reasons stated above, Appellant was not entitled to a lesser-included offense instruction. The trial court did not err in failing to instruct the jury. The decision of the court of appeals is reversed, and we affirm the trial court’s holding and Appellant’s conviction.

KELLER, P.J., and KEASLER, HERVEY, and HOLCOMB, JJ., concurred in the judgment.

      . Charles Ray Irving v. State, No. 09-02-476-CR, 2003 WL 22736207 (Tex.App.-Beaumont Nov. 19, 2003, pet. granted)(not designated for publication).

      . Id. at *2-3.

      . id. at *3.

      . Id. at *3-4.

      . Hayward v. State, 158 S.W.3d 476, 478 (Tex.Crim.App.2005); Jacob v. State, 892 S.W.2d 905, 907 (Tex.Crim.App.1995).

      . Assault is defined in Texas Penal Code § 22.01 as follows: "(a) A person commits an offense of the person: (1) intentionally, knowingly, or recklessly causes bodily injury to another, including the person’s spouse; (2) intentionally or knowingly threatens another with imminent bodily injury, including the person’s spouse; or (3) intentionally or knowingly causes physical contact with another when the person knows or should reasonably believe that the other will regard the contact as offensive or provocative.”

      . Texas Penal Code § 22.02 defines aggravated assault as follows: "(a) A person commits an offense if the person commits assault as defined in Section 22.01 and the person: (1) causes serious bodily injury to another, including the person’s spouse; or (2) uses or exhibits a deadly weapon during the commission of the assault.”

      . Charles Ray Irving v. State, No. 09-02-476-CR, 2003 WL 22736207 (Tex.App.-Beaumont Nov. 19, 2003, pet. granted)(not designated for publication)(citing Foster v. State, 25 Tex.App. 543, 543, 8 S.W. 664, 665 (1888)).

      . The indictment in the trial court read specifically that Appellant:
      did then and there intentionally and knowingly use a deadly weapon, to wit: a bat, that in the manner of its use and intended use was capable of causing death and serious bodily injury, and did then and there intentionally and knowingly cause bodily injury to Phyllis Chargois by hitting the said Phyllis Chargois on the head and body with the said bat.
      The second count of the indictment alleged that Appellant:
      did then and there intentionally and knowingly cause serious bodily injury to Phyllis Chargois by hitting her on the head and body with a bat.

      . Hayward v. State, 158 S.W.3d at 479-80.

      . Jacob v. State, 892 S.W.2d at 908 (citing Bartholomew v. State, 871 S.W.2d 210 (Tex.Crim.App.1994)). The court in Bartholomew reasoned that in a case where the indictment charged reckless driving and alleged the acts showing recklessness as speeding and racing, speeding and racing would be lesser-inchid-ed-offenses of reckless driving. However, if the indictment had alleged the acts showing reckless driving as "driving in circles” or "doing donuts” in the street, speeding and racing would not be lesser-included-offenses because they would not be required to establish the charged offense.

        . Hayward v. State, 158 S.W.3d at 479.


author: TIM TAFT, Justice.

text:
    TEXAS DEPARTMENT OF PUBLIC SAFETY, Appellant, v. Juan Carlos JAUREGUI, Appellee.
    No. 01-04-00554-CV.
    Court of Appeals of Texas, Houston (1st Dist.).
    Aug. 4, 2005.

      Elvis G. Schulze, Kevin M. Givens, Austin, TX, for Appellant.
    Steve Gonzalez, Alvin, TX, for Appellee.
    Panel consists of Justices TAFT, ALCALA, and HIGLEY.
   OPINION

TIM TAFT, Justice.

The Texas Department of Public Safety (“the DPS”) appeals an order from the county court, affirming an administrative law judge’s decision denying the DPS’s petition to suspend appellee, Juan Carlos Jauregui’s, driver’s license. We address whether an officer must simultaneously give oral and written warnings of the consequences of refusing a breath test after an arrest for driving while intoxicated (“DWI”). We reverse the judgment and remand the cause with instructions.

Background

On September 14, 2003, Jauregui was arrested for DWI after Officer Carroll of the Pearland Police Department observed Jauregui’s vehicle swerve out of its lane. Officer Carroll pulled Jauregui over and, after detecting a strong odor of alcohol emanating from the vehicle, asked Jaure-gui to exit his vehicle. As Jauregui stumbled and exited his vehicle, Officer Carroll noticed a moderate odor of alcoholic beverage emanating from Jauregui’s breath and decided to administer standard field-sobriety tests. Officer Carroll administered several field tests, including a horizontal-nystagmus-gaze test, a walk-and-turn test, and a one-leg-stand test. Jauregui failed to perform any of these tests satisfactorily, and Officer Carroll arrested him for DWI. Once inside his patrol car, Officer Carroll read Jauregui statutory warnings regarding his refusal to provide a breath specimen (form DIC-24). Jauregui was not provided a written copy of the warnings at that time.

Officer Carroll transported Jauregui to the Pearland Police Station, where he provided Jauregui a written set of the DIC-24 warnings, which Jauregui refused to sign. Officer Carroll then provided to Jauregui a notice of suspension of his driver’s license (form DIC-25).

On December 3, 2008, at Jauregui’s request, an administrative law judge (“ALJ”) conducted a hearing on the suspension of his driver’s license and found as follows:

Having considered the evidence, the Judge finds the following issues/element(s) were not proven by a preponderance of the evidence: that the Defendant was properly given the Statutory Warnings in accordance with state requirement. Officer Carroll, the officer who executed the Statutory Warnings, testified that he did give the Defendant a copy of the warnings to read alone. He stated that he read the document to the Defendant in the vehicle, but it was unclear whether the warnings were read and [sic] second time with the Defendant being provided with a copy. The department failed to meet their burden.
Based on the foregoing, the Judge concludes the evidence presented in this cause was insufficient to establish all the issues/elements set out in Tex. Transp. Code Ann. § 524.035 or 724.042 by a preponderance of the evidence.

Based upon these conclusions, the ALJ denied the DPS’s petition to suspend Jau-regui’s driver’s license. The DPS sought judicial review of that determination in the county court. The county court affirmed the ALJ’s decision.

Standard of Review

We consider in this appeal whether the administrative findings are affected by an error of law. This Court’s review of the trial court’s determination is undertaken de novo. Raesner v. Tex. Dep’t of Pub. Safety, 982 S.W.2d 131, 132 (Tex.App.-Houston [1st Dist.] 1998, pet. denied). We review questions of law without affording any deference to the trial court’s finding. Tex. Dep’t of Pub. Safety v. Cuellar, 58 S.W.3d 781, 784 (Tex.App.-San Antonio 2001, no pet.). To resolve this issue, the proper construction of Texas Transportation Code section 724.015, we decide an issue of law; thus we review de novo. See Martin v. Dep’t of Pub. Safety, 964 S.W.2d 772, 774 (Tex.App.-Austin 1998, no pet.)

Statutory Warnings

In its sole issue, the DPS contends that the trial court erred in affirming the ALJ’s decision because the statutory warnings regarding Jauregui’s refusal to provide a breath specimen were not required to be given, both orally and in writing, contemporaneously.

Section 724.015 of the Texas Transportation Code provides that “[b]efore requesting a person to submit to the taking of a specimen, the officer shall inform the person orally and in writing” of the statutory warnings provided under section 724.015, which include the consequences of refusing to submit to the test. Tex. Transp. Code Ann. § 724.015 (Vernon Supp.2004-2005). The purpose behind section 724.015 is “to ensure that a person who refuses to give a requested specimen does so with a full understanding of the consequences.” Nebes v. State, 743 S.W.2d 729, 730 (Tex.App.-Houston [1st Dist.] 1987, no pet.).

Several cases exist involving an officer’s giving the required oral warnings, but failing to give the statutory written warnings before requesting a person to submit to the taking of a specimen. See Schafer v. State, 95 S.W.3d 452, 455-57 (Tex.App.-Houston [1st Dist.] 2002, pet. ref’d). In both Rowland v. State, 983 S.W.2d 58 (Tex.App.-Houston [1st Dist.] 1998, pet. ref’d), and Jessup v. State, 935 S.W.2d 508 (Tex.App.-Houston [14th Dist.] 1996, pet. ref’d), police officers gave the appellants only an oral warning before asking them to provide breath specimens. Rowland, 983 S.W.2d at 60; Jessup, 935 S.W.2d at 509-511. After the appellants refused to give specimens, the officers gave them the written warnings, which the appellants signed, acknowledging that they understood them. Rowland, 983 S.W.2d at 60; Jessup, 935 S.W.2d at 509-511. The appellate courts held that the trial courts did not err in admitting evidence of the appellants’ refusal to take the breath tests because (1) the appellants failed to establish any causal connection between their refusal to give specimens and the fact that they were not given the written warnings before they refused the breath tests and (2) when the appellants did sign the written warnings, they reaffirmed their earlier decisions to refuse the breath test. Rowland, 983 S.W.2d at 60; Jessup, 935 S.W.2d at 511.

O’Keefe v. State is similar to Rowland and Jessup, except that in O’Keefe, the appellant refused to sign the written statutory warning form that was given to him after he had already refused to give a specimen upon receiving the oral warnings. 981 S.W.2d 872, 875 (Tex.App.-Houston [1st Dist.] 1998, no pet.). This Court held that the evidence supported the trial court’s implied finding that the officer had complied with section 724.015. Id.

In Lane v. State, the officer read the statutory warnings to the appellant before requesting a breath sample, and the appellant agreed to submit to the breath test. 951 S.W.2d 242, 243 (Tex.App.-Austin 1997, no pet.). The officer never gave the appellant a printed version of the statutory warnings. Id. The appellate court held that the trial court properly admitted the results of the breath test into evidence because there was no evidence that the appellant did not understand the warnings or that his failure to receive the warnings in writing had any impact on his decision to take the breath test. Id. at 244.

The DPS contends that the previously discussed cases support the proposition that Jauregui was adequately warned according to the purpose of section 724.015. Jauregui contends that these cases are distinguishable from his own. In the present case, the testimony reflects that, after Jauregui was arrested, Officer Carroll read to him the DIC-24 statutory warning form and his warnings. See Tex. Code Crim. Proc. Ann. art. 38.22 (Vernon 2005). Officer Carroll did not- provide Jauregui a written copy of the warnings during this first request for a breath specimen. Officer Carroll did, however, provide Jauregui a written copy of the warnings when he reached the police station.

Officer Carroll’s testimony did not reflect whether he again administered the warnings orally to Jauregui at the station. However, Officer Carroll’s offense report, admitted into evidence without objection, reflects that, when he provided Jauregui a set of written warnings at the jail, Jaure-gui stated, “I understood this, I don’t need to read it.” Jauregui then refused for a second time to provide a breath specimen.

The difference between Rowland and Jessup and the present case is that Jauregui never signed the DIC-24 form, which would have indicated that he understood the warnings he had been given. See Rowland, 983 S.W.2d at 60; Jessup, 935 S.W.2d at 510. However, the unobjected-to evidence shows that Jauregui refused to sign the DIC-24 form when asked to do so and instead stated that he understood the warning and “[didn’t] need to read it.” Thus, the evidence demonstrates that the purpose of section 724.015 had been fulfilled: Jauregui had been informed of the consequences of his failing to provide a breath specimen, and he had indicated that he understood those consequences. Moreover, Jauregui presented no evidence to show that he did not understand the warnings or that his failure to receive the warnings both in writihg and verbally before a request for a breath specimen had any impact on his decision not to take the breath test. Thus, under the current case law, Jauregui was adequately given the section 724.015 warnings.

Despite the fact that the plain language of the statute appears to require both written and oral warnings before a breath specimen is requested, courts have interpreted that statute to allow either oral or written warnings and not to require both. See Rowland, 983 S.W.2d at 60; Jessup, 935 S.W.2d at 510. Thus, we hold that the ALJ’s finding was affected by an error of law and that the trial court erred in affirming it because Jauregui was properly warned under section 724.015.

Accordingly, we sustain the DPS’s sole issue.

The DPS next contends that, because we have found in its favor regarding the statutory-warning issue, this Court should order the suspension of Jauregui’s driver’s license and determine whether any disputed facts regarding reasonable suspicion exist. The DPS asserts that, if this Court determines that facts regarding reasonable suspicion are in dispute, we should remand the case for an administrative hearing to obtain additional findings of fact and conclusions of law.

This Court is not the factfinder and, as such, should not engage in a review of the facts regarding issues not before it. Because the ALJ committed an error of law, the DPS is entitled to a reversal of the agency’s order. The appropriate remedy for this error is not rendition, however. Tex. Dep’t of Transp. v. Jones Bros. Dirt & Paving Contractors, 24 S.W.3d 893, 902 (Tex.App.-Austin 2000), rev’d on other grounds, 92 S.W.3d 477 (Tex.2002). Instead, the cause must be remanded to the trial court with instructions to remand the cause to the agency for further consideration. Id. at 902.

Conclusion

We reverse the judgment of the trial court and remand the cause to the trial court with instructions to remand the cause to the administrative court.

      . At the hearing, the testimony included only that of Officer Carroll. Jauregui’s argument against suspension of his driver’s license revolved around the assertion that Officer Carroll lacked probable cause to stop him for the traffic offense of failure to maintain a single, marked lane.

      . The ALJ’s finding seems to imply that, if the warnings had been administered orally and in writing, the circumstances would be analogous to those in O’Keefe, discussed below at pages-through-, in which the warnings were deemed sufficient.

      . Despite the fact that the Administrative Procedure Act provides that appeals from the trial court's judgment are taken "in the manner provided for civil actions generally,” the appellate courts habitually review the agency order itself, not the trial court's judgment. Tex. Gov’t Code Ann. § 2001.901 (Vernon 1997); see e.g., R.R. Comm’n of Tex. v. Torch Operating, 912 S.W.2d 790, 792 (Tex.1995) ("We next decide whether this particular decision by the agency was supported by substantial evidence in the record.”); Bd. of Law Exam’rs v. Stevens, 868 S.W.2d 773, 778 (Tex.1994) ("Our duty, like that of the courts below, in reviewing the BLE’s decision is to determine whether substantial evidence supports it."); R.R. Comm’n of Tex. v. Cont’l Bus. Sys., 616 S.W.2d 179, 182 (Tex.1981) ("The question that this court must answer is whether the findings of the Commission about convenience and necessity are' reasonably supported by substantial evidence.’’).
      However, in Texas Department of Public Safety v. Whitefield, the Waco Court of Appeals held that section 2001.901 does not apply to chapter 524 driver’s license suspensions. 59 S.W.3d 294, 295 (Tex.App.-Waco 2001, no pet.).

      . Jauregui also contends, as an alternative basis to affirm the ALJ's decision, that the DIC-24 is insufficient as a matter of law to comply with section 724.015 of the Texas Transportation Code because it does not warn a person "if the officer determines that the person is a resident without a license to operate a motor vehicle in this state, the department will deny to the person the issuance of a license ...” as enumerated in subsection 5 of section 724.015. Courts have considered whether the DIC-24 substantially complies with the requirements set out in section 724.015 and have held that the DIC-24 does substantially comply with section 724.015. See Moore v. State, 981 S.W.2d 701, 705-07 (Tex.App.-Houston [1st Dist.] 1998, pet. ref’d); Shirley v. Tex. Dep’t of Pub. Safety, 974 S.W.2d 321, 323-24 (Tex.App.-San Antonio 1998, no pet.); Martin v. Dep’t of Pub. Safety, 964 S.W.2d 772, 774-75 (Tex.App.-Austin 1998, no pet.); Tex. Dep’t of Pub. Safety v. Butler, 960 S.W.2d 375, 376-78 (Tex.App.-Houston [14th Dist.] 1998, no pet.). Moreover, the DIC-24 does warn a person that his or her license will be suspended or denied in the event that a person refuses to provide a specimen.

      . In O’Keefe, the appellant was only orally warned during the first request for a breath specimen, as in the present case. However, in contrast to the present case, during the second request for a breath specimen, a deputy gave the appellant the written warnings and again orally warned him.