Guy Anthony Thompson v. State ( 2007 )

Becker v. State

COURT OF APPEALS

EIGHTH DISTRICT OF TEXAS

EL PASO, TEXAS

GUY ANTHONY THOMPSON Appellant, v. THE STATE OF TEXAS, Appellee.	§ § § § § §	No. 08-07-00111-CR Appeal from the 346th District Court of El Paso County, Texas TC# 65513 (920D04899)

MEMORANDUM OPINION

Guy Anthony Thompson attempts to appeal from a judgment adjudicating him guilty of aggravated assault. On September 18, 1992, Appellant entered a guilty plea to aggravated assault and was placed on deferred adjudication. The State subsequently filed a motion to adjudicate guilt. Following a hearing, the trial court granted the State's motion, adjudicated Appellant's guilt and assessed his punishment at confinement for two years.

In his brief, Appellant raises a single issue alleging that the trial court abused its discretion in revoking his probation and adjudicating his guilt because the State did not prosecute the case with due diligence. The State filed a motion to dismiss the appeal because the only issue raised on appeal is a challenge to the trial court's determination to proceed to adjudication. We originally denied the motion but the State has filed a motion to for rehearing. We grant the State's motion for rehearing.

Appellant's guilt was adjudicated in a hearing conducted prior to June 15, 2007. In such a case, no appeal may be taken from the trial court's determination to proceed with an adjudication of guilt. Tex.Code Crim.Proc.Ann. art. 42.12, § 5(b)(Vernon 2006). ⁽¹⁾ The due diligence issue he raises on appeal is in the nature of a plea in bar or defense which must be raised by the defendant at the revocation hearing. Connolly v. State, 983 S.W.2d 738, 741 (Tex.Crim.App. 1999). Further, the due diligence issue is part of the trial court's decision to revoke and proceed to judgment. Id. Appeal of this issue is therefore barred by Article 42.12, Section 5(b). Id.; Wesley v. State, 157 S.W.3d 512, 514 (Tex.App.--Texarkana 2005, no pet.). We therefore grant the State's motion and dismiss the appeal. All other pending motions are denied as moot.

November 1, 2007

ANN CRAWFORD McCLURE, Justice

Before Chew, C.J., McClure, and Carr, JJ.

(Do Not Publish)

1. In 2007, the Legislature amended Article 42.12, § 5(b) to provide for a right of appeal from the trial court's decision to adjudicate. Act of May 23, 2007, 80th Leg., R.S., S.B. 909, § 5. However, the amendment is prospective and applies to an adjudication hearing conducted on or after the effective date of the legislation, June 15, 2007, regardless of when the adjudication of guilt was originally deferred or when the offense giving rise to the grant of deferred adjudication community supervision was committed. Act of May 23, 2007, 80th Leg., R.S., S.B. 909, § 53.