Kenneth Cox v. State ( 2005 )

In The

Court of Appeals

Sixth Appellate District of Texas at Texarkana

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No. 06-04-00117-CR

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KENNETH WAYNE COX, Appellant

V.

THE STATE OF TEXAS, Appellee

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On Appeal from the 402nd Judicial District Court

Wood County, Texas

Trial Court No. 17,656-2003

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Before Morriss, C.J., Ross and Carter, JJ.

Memorandum Opinion by Justice Ross

MEMORANDUM OPINION

          Kenneth Wayne Cox pled guilty to assault on a family member after having been previously convicted for the same offense. Pursuant to a plea agreement, the trial court deferred a finding of guilt and placed Cox on community supervision for three years. Three months later, the State filed a motion to have Cox adjudged guilty. The trial court heard the State's motion, adjudged Cox guilty of the underlying offense, and sentenced him to five years' imprisonment.

          On appeal, Cox complains that: 1) the trial court erred at the adjudication hearing in admitting behavior evidence of other members of Cox's batterers' intervention class; 2) the evidence adduced at the adjudication hearing was insufficient to support the State's allegation Cox violated condition number one of his supervision by threatening to commit an offense involving violence against the director of the violence program at the East Texas Crisis Center; and 3) the evidence adduced at the adjudication hearing was insufficient to support the State's allegation Cox violated condition number twenty-eight of his supervision by failing to participate in and successfully complete the batterers' intervention program. As these matters are not appealable, we affirm the trial court's judgment.

          When a trial court hears and rules on a motion to adjudicate guilt, no appeal may be taken from that ruling. Tex. Code Crim. Proc. Ann. art. 42.12, § 5(b) (Vernon Supp. 2005). The Texas Court of Criminal Appeals has held that the statute means what it says and that the determination to proceed with an adjudication of guilt is one of "absolute nonreviewable discretion." Olowosuko v. State, 826 S.W.2d 940, 942 (Tex. Crim. App. 1992) (citing Williams v. State, 592 S.W.2d 931, 932–33 (Tex. Crim. App. [Panel Op.] 1979)). An appellant whose deferred adjudication supervision has been revoked and who has been adjudged guilty of the original charge may not raise on appeal contentions of error in the adjudication of guilt process. Connolly v. State, 983 S.W.2d 738, 741 (Tex. Crim. App. 1999). Accordingly, these contentions may not be addressed by this Court.

          We affirm the judgment.

                                                                Donald R. Ross

                                                                Justice

Date Submitted:      December 12, 2005

Date Decided:         December 22, 2005

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