In the Court of Criminal 

Appeals of Texas

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No. WR-93,764-01

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EX PARTE DEMETRIUS BEASON,

Applicant

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On Application for Writ of Habeas Corpus

Cause No. W16-52471-M(A) in the 194th District Court

Dallas County

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YEARY, J., filed dissenting opinion.

Applicant’s claim in this Court does not challenge the validity of 

his conviction or ultimate sentence—at all. So why does the Court afford 

the drastic and unnecessary remedy of a whole new punishment 

proceeding on the revocation trial of his deferred adjudication? A new 

punishment proceeding is not called for by either Applicant’s claims, or 
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by the evidence. The Court should act with greater restraint in 

fashioning an appropriate remedy under these circumstances.

Indeed, in my view, Applicant may not even be entitled to any 

relief at all, much less a new punishment hearing. So, I feel compelled 

to say in these circumstances that, at the very least, the Court should 

consider some less drastic remedy. At a minimum the Court should limit 

the relief it affords to a remedy for the deprivation that Applicant 

actually claims. Because the Court does not, and because it instead 

pushes ahead to upset Applicant’s perfectly lawful and completely 

unchallenged sentence, I dissent.

I. BACKGROUND

Applicant committed burglary of a habitation in 2016. He pled 

guilty to that offense under a plea agreement in accordance with which 

he received six years’ deferred adjudication community supervision. 

Then, in 2020, the State filed a motion to revoke that probation and to 

proceed to adjudication. 

This time, in an open plea, Applicant pled true to the allegations 

in the State’s motion, and the trial court assessed punishment at a tenyear term of confinement in the penitentiary. At that time, the trial 

court expressed a willingness to consider bringing Applicant back, 

within the statutory timetable, and placing him on so-called “shock” 

probation. See TEX. CODE CRIM. PROC. art. 42A.202 (providing discretion 

in the trial court to suspend further execution of sentence and place 

convict on community supervision, extending its jurisdiction for 180 

days from the date sentence begins for this purpose). But nothing in the 
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record indicates that the trial judge promised to conduct a hearing on 

such a motion.

A hearing for the trial court to consider shock probation was 

scheduled to occur on the 178th day after sentencing. For reasons not 

well explained by the record, however, Applicant was removed from the 

courtroom and returned to the jail before the shock probation hearing 

could commence. Because Applicant’s adjudication-revocation attorney 

had pressing time commitments in the interim, the hearing could not be 

rescheduled until the 182nd day. At that time the parties realized that 

the trial court’s jurisdiction had expired, and no hearing was held.

The parties now agree that Applicant has been deprived of the 

opportunity to have the trial court consider whether to grant him shock 

probation, and that he should obtain some form of “relief.” In its 

recommended findings of fact and conclusions of law, the trial court 

agrees that habeas corpus “relief” is appropriate. But neither the parties 

nor the trial court have hinted at what form of relief would in fact be 

appropriate. Regrettable as the circumstances might be, it is not entirely 

clear to me that relief of any kind is appropriate. Whatever relief might 

be called for, though, it would not be to grant Applicant a whole new 

punishment hearing!

II. WHAT RELIEF?—IF ANY...

First, the record before us provides absolutely no justification for 

overturning Applicant’s original guilty plea to the offense, entered back 

in 2016. That plea was the product of a negotiation with the State 

whereby Applicant received, insofar as this record reveals, the full 

benefit of his bargain: six years’ deferred adjudication community 
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supervision. There is no suggestion that Applicant’s plea on the question 

of his guilt was rendered involuntary or otherwise invalid by reason of 

the trial court’s inability, four years later, to impose shock probation 

after adjudication. The Court therefore rightly declines to grant 

Applicant an entirely new trial.

Nor is there any showing that Applicant’s plea of true to the 

State’s motion to adjudicate was somehow invalid, such that there is any 

cause to overturn it. Nothing in the pleadings or the record suggests that 

Applicant’s open plea to the State’s motion was in any way contingent 

on the trial court’s (apparently sua sponte) suggestion that it would be 

open to considering shock probation in the case. So, his open plea was 

not somehow rendered involuntary by the subsequent events. Granting 

Applicant a new punishment hearing on his deferred-adjudicationrevocation proceeding also seems anomalous.

Should the Court nevertheless work around the trial court’s 

statutorily limited “jurisdiction” to consider shock probation,1 and

simply grant Applicant—out of time—a new opportunity for the hearing 

that circumstances seem to have deprived him of? I even have my 

concerns about that. The record reveals no reasonable expectation on 

the part of Applicant to obtain shock probation, even if the trial court 

did signal a willingness to consider it. Absent such an expectation, he 

arguably lacks even a due process right to a hearing on the matter. 

While the statute requires a hearing before shock probation may 

be granted, it also expressly provides that shock probation may be 

1 Under Article 42A.202(a), it is the “jurisdiction” of the trial court, not 

just its authority, which “continues” for an extended period in order to make 

shock probation possible. TEX. CODE CRIM. PROC. art. 42A.202(a).
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denied “without holding a hearing[.]” TEX. CODE CRIM. PROC. art. 

42A.202(e). State law provides him no reasonable expectation of 

obtaining shock probation, nor does it insulate him from being denied 

shock probation without a hearing. It simply affords him the possibility

of shock probation, as a function of judicial discretion. And such an 

attenuated interest is insufficient to trigger a procedural due process 

right. See Ex parte Montgomery, 894 S.W.2d 324, 327 (Tex. Crim.

App.1995) (explaining that a defendant who asserts a violation of a due 

process interest “must show an entitlement” to the interest he claims, 

and that that interest must “amount to more than a ‘unilateral hope’”); 

cf. Wolff v. McDonnell, 418 U.S. 539, 557 (1974) (recognizing, in the 

prison setting, that “the State having created the right to good time itself 

and recognizing that its deprivation is a sanction authorized for major 

misconduct, the prisoner’s interest has real substance and is sufficiently 

embraced within Fourteenth Amendment ‘liberty’ to entitle him to those 

minimum procedures appropriate under the circumstances and required 

by the Due Process Clause to insure that the state-created right is not 

arbitrarily abrogated”). In short, it is not clear to me that Applicant has 

a sufficient liberty interest in obtaining shock probation that even the 

arbitrary deprivation of a hearing to inform the trial court’s discretion 

will constitute a constitutional infraction. See, e.g., Lee v. State, 560 

S.W.3d 768, 773 (Tex. App.—Eastland 2018, pet. ref’d) (“[A] defendant 

placed on pretrial intervention does not have a liberty interest requiring 

a hearing for due process purposes.”). The Court today grants relief 

without ever addressing this threshold question.

The trial court has recommended that we conclude that depriving 
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Applicant of a shock probation hearing constituted a violation of his due 

process rights as recognized by this Court’s unpublished opinion in Ex 

parte Balderas, No. AP-75,230, 2002 WL 2087015 (Tex. Crim. App. Aug. 

31, 2005) (not designated for publication). There, on facts quite similar 

to those before us today, the Court granted relief in the form of a whole 

new trial (which mistake, thankfully, the Court does not repeat today). 

One major difference between Balderas and Applicant’s case is that, in 

Balderas, the convicting court indicated on the record that, given the 

chance, it certainly would have granted the applicant shock probation. 

We do not have that here. In any event, the Court did not explain its 

rationale in granting relief in Balderas—any more than it explains itself 

today. I afford the Court’s unpublished opinion in Balderas no 

precedential value at all.

But, again, if the Court is determined to try to fix what 

circumstances seem to have deprived Applicant of in this case, it should 

not overturn his sentence. It should instead, at a minimum, endeavor to 

fashion a remedy only to the specific deprivation Applicant has alleged 

and proved. And if the Court deems that he has successfully established 

his claim, perhaps the Court might rely instead on its precedents which 

have suggested the authority to correct events that occur to the 

detriment of a defendant because of a “breakdown in the system.” E.g., 

Ex parte Riley, 193 S.W.3d 900 (Tex. Crim. App. 2006). That, it seems to 

me, is the only credible way to justify the Court acting, at all, to rescue 

Applicant from the deprivation of a privilege that he has no right to.2

2It also seems contrary to the evident boundaries established in the 

statute the Applicant relies upon, which seems expressly to limit even the trial 
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III. CONCLUSION

I am far from sure that Applicant has pled and proved facts which 

entitle him to any relief at all. I am certain he has not pled or proved 

facts entitling him to a whole new punishment hearing on the revocation 

of his deferred adjudication. I respectfully dissent to the Court’s 

disposition in this case.

FILED: June 28, 2023

PUBLISH

court’s discretion to act, unless such action is taken within “180 days from the 

date the execution of the sentence actually begins.” TEX. CODE CRIM. PROC. art. 

42A.202(a). Should we act to suspend the operation of provisions of the Code 

of Criminal Procedure any old time a trial court expresses a desire not to be 

cut off by a timeline that the legislature of our state has chosen to impose on

it? Rule 2 of our Texas Rules of Appellate Procedure seems to counsel a more 

circumscribed approach. It provides: “On a party’s motion or on its own 

initiative an appellate court may—to expedite a decision or for other good 

cause—suspend a rule’s operation in a particular case and order a different 

procedure; but a court must not construe this rule to suspend any provision in 

the Code of Criminal Procedure.” TEX. R. APP. P. 2 (emphasis added).