Elias Tonche, Jr. v. State ( 2007 )

Opinion filed April 19, 2007

Opinion filed April 19, 2007

                                                                        In The

    Eleventh Court of Appeals

                                                                   __________

                                                          No. 11-06-00329-CR

                                                     _________

                                     ELIAS TONCHE JR., Appellant

                                                             V.

                                        STATE OF TEXAS, Appellee

                                         On Appeal from the 350th District Court

                                                          Taylor County, Texas

                                                   Trial Court Cause No. 6412-D

                                                                   O P I N I O N

This is an appeal from a judgment adjudicating guilt.  We dismiss the appeal.

                                                           Procedural Background

Elias Tonche Jr. originally entered a plea of guilty to the offense of deadly conduct. The trial court deferred the adjudication of his guilt, placed him on community supervision for six years, and assessed a fine of $1,000.  At the hearing on the State=s motion to adjudicate, appellant entered pleas of true to all eight of the State=s allegations that he violated the terms and conditions of his community supervision.  The trial court found the allegations to be true, revoked appellant=s community supervision, and assessed his punishment at confinement for five years.

                                                                  Issue on Appeal

Appellant contends in his sole issue on appeal that the trial court erred in denying his motion for new trial.  The only ground asserted in the motion for new trial was that his pleas were involuntary. Appellant contends on appeal that this argument concerning the voluntariness of his pleas is not barred by the statutory prohibition concerning challenges to the trial court=s decision to adjudicate.

                                                       Applicable Law and Analysis

Tex. Code Crim. Proc. Ann. art. 42.12, ' 5(b) (Vernon 2006) provides:

On violation of a condition of community supervision imposed under Subsection (a) of this section, the defendant may be arrested and detained as provided in Section 21 of this article.  The defendant is 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.

Davis v. State, 195 S.W.3d 708, 709 (Tex. Crim. App. 2006);  Hargesheimer v. State, 182 S.W.3d 906, 909 (Tex. Crim. App. 2006); Hogans v. State, 176 S.W.3d 829, 831 (Tex. Crim. App. 2005); Phynes v. State, 828 S.W.2d 1, 2 (Tex. Crim. App. 1992); Olowosuko v. State, 826 S.W.2d 940, 942 (Tex. Crim. App. 1992).  We disagree with appellant=s argument that he is not challenging the trial court=s decision to adjudicate.  The trial court=s reliance on his pleas of true to proceed to adjudication of his guilt is the heart of his contentions on appeal.  Appellant cannot use a motion for new trial to circumvent the legislative prohibition of an appeal from the decision to adjudicate.

This court lacks jurisdiction to consider appellant=s issue.  Hogans, 176 S.W.3d at 831; Phynes,  828 S.W.2d at 2; Russell v. State, 702 S.W.2d 617, 618 (Tex. Crim. App. 1985).

                                                               This Court=s Ruling

The appeal is dismissed.

RICK STRANGE

April 19, 2007                                                                          JUSTICE

Do not publish.  See Tex. R. App. P. 47.2(b).

Panel consists of:  Wright, C.J.,

McCall, J., and Strange, J.