Michael Glen Tucker v. the State of Texas

NO. 12-23-00058-CR

IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT

TYLER, TEXAS

MICHAEL GLEN TUCKER, § APPEAL FROM THE
APPELLANT

V. § COUNTY COURT AT LAW

THE STATE OF TEXAS,
APPELLEE § NACOGDOCHES COUNTY, TEXAS

MEMORANDUM OPINION
Michael Glen Tucker appeals his conviction for over allowable gross weight (10,001-
20,000 pounds over), specifically, 16,520 pounds. In a single issue, Appellant contends the trial
court erred by not considering deferred adjudication. We affirm.

BACKGROUND
On October 14, 2020, Texas Department of Public Safety Trooper Paul Shofner observed
Appellant driving a log truck with bulging tires and logs up to the bolsters. Suspecting that the
truck was overloaded, Trooper Shofner initiated a traffic stop and had Appellant weigh his load.
The truck weighed in at 96,520 pounds, which was 16,520 pounds over the allowable gross
weight. Therefore, Trooper Shofner issued Appellant a ticket.
Appellant pleaded “no contest” in the Justice of the Peace Court for Precinct 4 in
Nacogdoches County. Thereafter, Appellant perfected a de novo appeal to the County Court at
Law. At the de novo appeal, Appellant pleaded “not guilty,” and the matter proceeded to a jury
trial. Prior to trial, Appellant asked the court to consider deferred adjudication. The State argued
that Appellant was not eligible for deferred adjudication because he holds a commercial driver’s
license. The court agreed and stated Appellant was not eligible for deferred adjudication. The
jury ultimately found Appellant “guilty.” At sentencing, the trial court again confirmed that it
would not consider deferred adjudication because Appellant holds a commercial driver’s license
and assessed punishment at a $4,000 fine. This appeal followed.

AVAILABILITY OF DEFERRED ADJUDICATION
In his sole issue, Appellant urges the trial court erred in refusing to consider deferred
adjudication under Article 45.051 of the Code of Criminal Procedure.
Article 45.051 allows justice of the peace or municipal court judges to suspend the
imposition of sentence and defer an adjudication of guilt in misdemeanor offenses punishable by
fine only. See TEX. CODE CRIM. PROC. ANN. art. 45.051(a) (West Supp. 2023). The most
common application of this article is the deferral of proceedings in traffic offense cases.
Operating an overweight vehicle is a misdemeanor punishable by a fine only. TEX. TRANSP.
CODE ANN. § 621.506(b) (West 2021). However, Article 45.051(f) provides an important
limitation to the statute’s general application. It states that the article does not apply when (1) the
offense occurs in a construction or maintenance zone or (2) the offense relates to motor vehicle
control and the offender currently holds a commercial driver’s license or held a commercial
driver’s license at the time the offense was committed. See TEX. CODE CRIM. PROC. ANN. art.
45.051(f); In re State, 489 S.W.3d 24, 29 (Tex. App.—Amarillo 2016, no pet.).
Appellant contends that operating an overweight vehicle does not relate to motor vehicle
control. As a result, he argues that the exception under Article 45.051(f) does not apply and the
trial court should have considered deferred adjudication. However, Article 45.051, by its express
terms, applies to justice of the peace and municipal courts. The Code of Criminal Procedure has
a separate provision for deferral of proceedings in cases appealed to a county court. See TEX.
CODE CRIM. PROC. ANN. art. 42.111 (West Supp. 2023). Thus, we apply Article 42.111 rather
than Article 45.051.
Article 42.111 provides as follows:

If a defendant convicted of a misdemeanor punishable by fine only appeals the conviction to a
county court, on the trial in county court the defendant may enter a plea of guilty or nolo
contendere to the offense. If the defendant enters a plea of guilty or nolo contendere, the court may
defer further proceedings without entering an adjudication of guilt in the same manner as provided
for the deferral of proceedings in justice court or municipal court under Article 45.051 of this
code. This article does not apply to a misdemeanor case disposed of under Subchapter B, Chapter
543, Transportation Code, or a serious traffic violation as defined by Section 522.003,
Transportation Code.

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Id. Accordingly, upon perfection of an appeal from a justice of the peace or municipal court, the
accused has the same right that he had below to enter a plea of guilty or nolo contendere. In re
State, 489 S.W.3d at 27. The first part of the second sentence indicates the Legislature’s intent
that a county court judge’s authority be somewhat more restricted than that of a justice of the
peace or municipal court judge. Under Article 42.111, a county court judge may defer an
adjudication in only two instances: (1) on a plea of guilty or (2) on a plea of nolo contendere. Id.,
at 28; TEX. CODE CRIM. PROC. ANN. art. 42.111. But Appellant pleaded “not guilty” in the de
novo appeal to the county court. Thus, the trial court could not consider deferred adjudication
under the express terms of the statute. See TEX. CODE CRIM. PROC. ANN. art. 42.111. For this
reason, we overrule Appellant’s sole issue.

DISPOSITION
Having overruled Appellant’s sole issue, we affirm the trial court’s judgment.

BRIAN HOYLE
Justice

Opinion delivered January 24, 2024.
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.

(DO NOT PUBLISH)

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COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT OF TEXAS

JUDGMENT

JANUARY 24, 2024

NO. 12-23-00058-CR

MICHAEL GLEN TUCKER,
Appellant
V.
THE STATE OF TEXAS,
Appellee

Appeal from the County Court at Law
of Nacogdoches County, Texas (Tr.Ct.No. CF2100349)

THIS CAUSE came to be heard on the appellate record and briefs filed
herein, and the same being considered, it is the opinion of this court that there was no error in the
judgment.
It is therefore ORDERED, ADJUDGED and DECREED that the judgment
of the court below be in all things affirmed, and that this decision be certified to the court
below for observance.
Brian Hoyle, Justice.
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.