Bryan Benjamin Johnson v. State ( 2006 )

Opinion to: SJR TGT SN TJ EVK ERA GCH LCH JB

Opinion Issued May 4, 2006

In The

Court of Appeals

For The

First District of Texas

NO. 01-05-00405-CR

BRIAN BENJAMIN JOHNSON, Appellant

V.

THE STATE OF TEXAS, Appellee

  On Appeal from the 183rd District Court

Harris County, Texas

Trial Court Cause No. 898079

MEMORANDUM OPINION

Appellant Brian Benjamin Johnson pleaded guilty to the felony offense of aggravated robbery, and was placed on deferred adjudication community supervision for a period of ten years.  The State subsequently moved to adjudicate Johnson’s guilt.  The trial court adjudicated him guilty and sentenced him to twenty years’ imprisonment. In four issues, Johnson contends the trial court erred in adjudicating his guilt because (1) the State failed to prove he was capable of paying the community supervisionary fees, (2) the State failed to prove that he committed the offense of aggravated robbery in connection with an extraneous offense, (3) hearsay should not have been admitted under the excited utterance exception, and (4) he should not have been permitted to appear before the witnesses in the hearing on the motion to adjudicate in an orange jail-issued jumpsuit because it made him more easily identifiable as an assailant.  We dismiss the appeal for want of jurisdiction.

Facts

In January 2002, the State indicted Johnson for the offense of aggravated robbery.  The case proceeded to trial, and after the jury announced it was deadlocked, the trial court ordered a mistrial.  In August 2003, Johnson pleaded guilty to the offense without an agreed recommendation from the State as to punishment, and the trial court placed him on deferred adjudication community supervision for a period of ten years.  In November 2004, the State moved to adjudicate Johnson’s guilt.   Johnson pleaded “not true” to the allegations in the State’s motion.  At the hearing, the State presented evidence that Johnson had failed to pay the required fees under the terms of his community supervision, and that Johnson had committed an aggravated robbery in November 2004.  The trial court adjudicated Johnson’s guilt and sentenced him to twenty years’ confinement in the Institutional Division of the Texas Department of Criminal Justice.  

Discussion

Under Article 42.12, Section 5(b) of the Code of Criminal Procedure, if a defendant violates a condition of his deferred adjudication community supervision, he 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.”  Tex. Code Crim. Proc. Ann. art. 42.12, § 5(b) (Vernon Supp. 2005); Hogans v. State, 176 S.W.3d 829, 832 (Tex. Crim. App. 2005).  In an appeal from a judgment adjudicating guilt after community supervision has been revoked, this court only has jurisdiction to consider a claim that, “on its face, relate[s] to the sentence imposed, not to the decision to adjudicate.”  Hogans, 176 S.W.3d at 834.  Thus, if an appeal only raises a claim of purported error in the adjudication of guilt determination, a court of appeals should dismiss that claim without reaching the merits.  Id. Johnson’s challenges to the sufficiency of the evidence, the admission of hearsay statements, and the propriety of his appearing in an orange jail jumpsuit are not appealable because they relate solely to the determination by the court of whether to adjudicate guilt, and not to the court’s assessment of punishment.  See Hargesheimer v. State, 182 S.W.3d 906, 909 (Tex. Crim. App. 2006). Johnson makes no challenges related to the punishment phase of the hearing.  Accordingly, we dismiss his appeal for want of jurisdiction.

                                                          Jane Bland

                                                          Justice

Panel consists of Justices Taft, Higley, and Bland.

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