Wade Ray Sanders v. State of Texas ( 2001 )

NO. 07-00-0519-CR
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL A
OCTOBER 11, 2001
______________________________
WADE RAY SANDERS, APPELLANT
V.
THE STATE OF TEXAS, APPELLEE
_________________________________
FROM THE 181ST DISTRICT COURT OF POTTER COUNTY;
NO. 42,044-B; HONORABLE JOHN BOARD, JUDGE
_______________________________
Before BOYD, C.J., and REAVIS and JOHNSON, JJ.
Pursuant to a guilty plea for assault on a public servant, appellant Wade Ray
Sanders was granted deferred adjudication and placed on community supervision for three
years. At a hearing on the State’s amended motion to proceed with an adjudication of
guilt, appellant plead true to possession of a firearm and the trial court heard evidence on
three remaining allegations. The trial court adjudicated appellant guilty of the original
charge and assessed punishment at ten years confinement. Appellant filed a general
notice of appeal. Based upon the rationale expressed herein, we dismiss this appeal for
want of jurisdiction.
According to the record, on March 23, 2000, Officer Mike Willis was dispatched to
appellant’s home for a domestic dispute. Appellant allegedly struck Willis in the mouth
causing injury. On August 17, 2000, appellant was placed on deferred adjudication for
three years for assaulting Officer Willis. The following day, officers were dispatched to
appellant’s mother’s residence where appellant was threatening to commit suicide with a
rifle. According to the responding officers, appellant threatened the life of Officer Willis.
After the incident appellant was taken to a local hospital for medical evaluation and
following an interview with a mental health counselor, he was admitted to a mental health
facility for thirteen days. On October 4, 2000, the trial court adjudicated appellant guilty
of the original charge of assault against Officer Willis.
Presenting two points of error, appellant contends the trial court (1) abused its
discretion in failing to sua sponte conduct a competency hearing before adjudicating him
guilty, and (2) erred and abused its discretion in revoking his community supervision on
insufficient evidence. Article 42.12, section 5(b) of the Texas Code of Criminal Procedure
expressly denies a defendant the right to appeal from a trial court's determination to
adjudicate guilt. Connolly v. State, 983 S.W.2d 738, 741 (Tex.Cr.App. 1999); Phynes v.
State, 828 S.W.2d 1, 2 (Tex.Cr.App. 1992); Olowosuko v. State, 826 S.W.2d 940, 941-42
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(Tex.Cr.App. 1992). An appeal cannot be had to challenge: (1) the sufficiency of the
evidence to support the trial court's adjudication of guilt, (2) a claim of ineffective
assistance of counsel at the hearing on the motion to adjudicate, (3) a claim that the
conditions of community supervision are too vague, and (4) a claim that a variance exists
between the community supervision conditions in the order and those alleged in the motion
to adjudicate. See Phynes, 828 S.W.2d at 2, and Olowosuko, 826 S.W.2d at 942.
However, article 42.12, section 5(b) expressly allows an appeal of all proceedings after the
adjudication of guilt on the original charge. Olowosuko, 826 S.W.2d at 942. An appeal
may be had to challenge (1) the assessment of punishment, and (2) the pronouncement
of sentence. Tex. Code Crim. Proc. Ann. art. 42.12 § 5(b) (Vernon Supp. 2001). Thus, as
an appellate court, it is our duty to sort out the trial court’s rulings in the course of a
deferred adjudication proceeding to determine those which the Legislature has provided
a right to appeal. See Olowosuko, 826 S.W.2d at 941.
Our initial inquiry is to determine whether assessment of appellant’s competency
to stand trial is a challenge to the trial court’s determination to proceed with an adjudication
of guilt from which no appeal is permitted. We conclude that it is. We are cognizant that
in 1993, this Court held that it was not prohibited from reviewing a trial court’s failure to
conduct a mental competency hearing prior to proceeding with an adjudication of guilt.
Gilbert v. State, 852 S.W.2d 623, 626 (Tex.App.–Amarillo 1993, no pet.). However, more
recent opinions of the Court of Criminal Appeals suggest that given the plain meaning of
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article 42.12, section 5(b), any contentions of error in the adjudication of guilt process are
foreclosed from appellate review. Connolly v. State, 983 S.W.2d 738, 741 (Tex.Cr.App.
1999). See generally Phynes v. State, 828 S.W.2d 1 (Tex.Cr.App. 1992) (holding that
even if the right to counsel had been violated, it could not be raised on appeal from the
trial court’s decision to adjudicate); Olowosuko v. State, 826 S.W.2d 940, 942 (Tex.Cr.App
1992) (explaining that since the beginning of deferred adjudication practice, the
Legislature meant what it said in article 42.12, section 5(b)); see also Arista v. State, 2
S.W.3d 444, 445-46 (Tex.App.–San Antonio 1999, no pet.) (declining to follow this Court’s
decision in Gilbert in light of Connolly in an appeal from an adjudication of guilt in which
Arista contended the trial court erred by failing to hold a competency hearing).
Having concluded that the issue of mental competency relates to the adjudication
of guilt process and does not fall within the statutory category of “all proceedings” after an
adjudication of guilt from which an appeal may continue, (i.e., assessment of punishment
and pronouncement of sentence), we also find that appellant’s general notice of appeal
is insufficient to invoke this Court’s jurisdiction. The Court of Criminal Appeals has
recently held on appeal from an adjudication of guilt, if an issue unrelated to a conviction
is raised, the limitations of Rule 25.2(b)(3) of the Texas Rules of Appellate Procedure do
not apply and a general notice of appeal is sufficient. Vidaurri v. State, 49 S.W.3d 880,
885 (Tex.Cr.App. 2001). Conversely, where as here, we have determined that an attack
on the trial court’s failure to hold a competency hearing prior to an adjudication of guilt is
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an issue relating to the conviction, the notice of appeal limitations were triggered and
appellant’s general notice of appeal was insufficient to invoke our jurisdiction. Thus, for
the foregoing reasons, we are without jurisdiction to consider appellant’s points of error.
Accordingly, this appeal is dismissed for want of jurisdiction.
Don H. Reavis
Justice
Do not publish.
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