Kenneth Eugene Foster v. State ( 1998 )

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN





NO. 03-97-00461-CR NO. 03-97-00462-CR



Kenneth Eugene Foster, Appellant

v.

The State of Texas, Appellee





FROM THE DISTRICT COURT OF BEXAR COUNTY, 186TH JUDICIAL DISTRICT NOS. 94CR7173A & 94CR7174A , HONORABLE TERRY McDONALD, JUDGE PRESIDING

Appellant Kenneth Eugene Foster was charged with two separate offenses of aggravated assault with a deadly weapon. See Tex. Penal Code Ann. § 22.02 (West 1994). The trial court received appellant's plea of guilty to each offense and found the evidence substantiated appellant's guilt. The court deferred adjudication of guilt and placed appellant on community supervision for ten years. See Tex. Code Crim. Proc. Ann. art. 42.12, § 5(a) (West Supp. 1998).

Subsequently, the State moved the trial court to revoke appellant's community supervision and to adjudicate his guilt because appellant had violated a condition of community supervision by committing capital murder. The trial court adjudicated appellant's guilt and assessed his punishment at imprisonment for ten years in each case and imposed sentence. See id. § 5(b) (West Supp. 1998). Appellant appeals, contending in point of error two that he was deprived of due process in the revocation hearing and in point of error one that his plea of guilty was involuntary. We will dismiss appellant's point of error two, overrule his point of error one, and affirm the trial court's judgments.

In point of error two, appellant complains that the trial court erred in failing to conduct an adjudication hearing that provided him with the minimum substantive and procedural due process protections provided by the Constitutions of the United States and of Texas and the Texas Code of Criminal Procedure. Appellant's specific complaint is that the trial court improperly took judicial notice of the court's files and the testimony that the court had heard in the trial in which a jury found appellant guilty of capital murder.

When a defendant has been granted deferred adjudication of his guilt and it is thereafter alleged he violated a condition of community supervision, he is entitled to a hearing limited to the determination by the court of whether it proceeds with adjudication of guilt on the original charge. See id. No appeal may be taken from this determination. Id.; see Olowosuko v. State, 826 S.W.2d 940, 941-42 (Tex. Crim. App. 1992); Contreras v. State, 645 S.W.2d 298 (Tex. Crim. App. 1983); Abdallah v. State, 924 S.W.2d 751, 754-55 (Tex. App.--Fort Worth 1996, pet. ref'd); Gary v. State, 880 S.W.2d 485, 487-88 (Tex. App.--Austin 1994, pet. ref'd). Courts have upheld the constitutionality of the statute which disallows an appeal from a hearing to adjudicate guilt on the original charge. See Phynes v. State, 828 S.W.2d 1, 2 (Tex. Crim. App. 1992); Ex parte Hernandez, 705 S.W.2d 700, 701-03 (Tex. Crim. App. 1986); Elizondo v. State, 861 S.W.2d 294, 295 (Tex. App.--San Antonio 1993, no pet.). Appellant may not appeal from the proceeding adjudicating his guilt. Appellant's point of error two is dismissed.

In his first point of error, appellant asserts that his plea of guilty was involuntary because he did not understand that his community supervision could be revoked without a hearing that would provide him with substantive and procedural due process. Although appellant pled guilty, he may appeal to challenge the voluntariness of his plea. Flowers v. State, 935 S.W.2d 131, 134 (Tex. Crim. App. 1996). However, when the record reflects, as it does in this case, that the trial court properly admonished the defendant, there is a prima facie showing the plea was knowing and voluntary. See Solis v. State, 945 S.W.2d 300, 302 (Tex. App.--Houston [1st Dist.] 1997, pet. ref'd); Smith v. State, 857 S.W.2d 71, 73 (Tex. App.--Dallas 1993, pet. ref'd). The burden then shifts to the defendant to establish that he did not understand the consequences of his plea. Solis, 945 S.W.2d at 302; Miller v. State, 879 S.W.2d 336, 338 (Tex. App.--Houston [14th Dist.] 1994, pet. ref'd).

Appellant's makes his contention for the first time on appeal; nothing in the record supports his claim that he would not have pled guilty if he had known the nature of the hearing to adjudicate his guilt and to revoke his community supervision. After his guilty plea, appellant did not appeal claiming the involuntariness of his plea; appellant was entitled to an appeal at that time. See Dillihey v. State, 815 S.W.2d 623 (Tex. Crim. App. 1991). After his guilt was adjudicated, appellant did not file and present a motion for new trial in an attempt to show his plea was involuntary. See id. at 626 n.7; see also Tex. Code Crim. Proc. Ann. art. 42.12, § 5(b) (West Supp. 1998). Nothing in the record rebuts the presumption that appellant's guilty plea was freely and voluntarily made. See Solis, 945 S.W.2d at 302.

The clerk's record includes the "Court's Admonishments and Defendant's Waivers and Affidavit of Admissions" to which the appellant swore and signed his name. We quote portions of that instrument:

COURT'S ADMONISHMENTS:

* * * * *

You are admonished that if convicted of a felony the following applies:

* * * * *

5. DEFERRED ADJUDICATION

If the Court defers adjudicating your guilt and places you under community supervision, on violation of any condition you may be arrested and detained as provided by law. You are then entitled to a hearing limited to a determination by the Court of whether to proceed with an adjudication of guilt on the original charge. No appeal may be taken from this determination. After adjudication of guilt, all proceedings including the assessment of punishment and your right to appeal continue as if adjudication of guilt had not been deferred.

* * * * *

I, the Defendant, hereby enter a plea of GUILTY to this charge.

* * * * *

5. I am pleading GUILTY, . . . because I am guilty, and for no other reason. . . . I have considered all aspects of my legal situation and discussed them with my attorney and have determined that the entry of such plea is in my own best interest.

6. I understand the Court's admonishments as contained in this waiver.

7. I am satisfied with the advice and representation of my attorney in this case.

In his signed application requesting deferred adjudication of his guilt, appellant made the following acknowledgment.

I acknowledge that, as relates to my application for deferred adjudication, I have been advised by the Court that if adjudication of my guilt is deferred, and I am placed on community supervision, on violation of any condition of community supervision I may be arrested and detained just as any other alleged community supervision violator, and I will be 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.

The reporter's record shows that the trial court carefully admonished, advised, and explained to appellant that if the court granted deferred adjudication of guilt there were advantages and that if appellant should violate the conditions of community supervision there were disadvantages.

The record wholly fails to support appellant's contention that his plea was involuntary. Appellant's first point of error is overruled.

The judgment of the trial court and the order revoking community supervision are affirmed.

Carl E. F. Dally, Justice

Before Justices Powers, Aboussie and Dally^*

Affirmed on Both Causes

Filed: July 2, 1998

Do Not Publish

  ^* Before Carl E. F. Dally, Judge (retired), Court of Criminal Appeals, sitting by assignment. See Tex. Gov't Code Ann. § 74.003(b) (West 1988).

defers adjudicating your guilt and places you under community supervision, on violation of any condition you may be arrested and detained as provided by law. You are then entitled to a hearing limited to a determination by the Court of whether to proceed with an adjudication of guilt on the original charge. No appeal may be taken from this determination. After adjudication of guilt, all proceedings including the assessment of punishment and your right to appeal continue as if adjudication of guilt had not been deferred.

* * * * *

I, the Defendant, hereby enter a plea of GUILTY to this charge.

* * * * *

5. I am pleading GUILTY, . . . because I am guilty, and for no other reason. . . . I have considered all aspects of my legal situation and discussed them with my attorney and have determined that the entry of such plea is in my own best interest.

6. I understand the Court's admonishments as contained in this waiver.

7. I am satisfied with the advice and representation of my attorney in this case.