Tatum, Melva Sue v. State ( 2000 )

NUMBER 13-99-193-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI

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MELVA SUE TATUM, Appellant,

v.

THE STATE OF TEXAS, Appellee.

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On appeal from the 24th District Court of Victoria County, Texas.

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O P I N I O N

Before Justices Hinojosa, Chavez, and Rodriguez Opinion by Justice Hinojosa

On September 6, 1995, appellant, Melva Sue Tatum, pleaded guilty to the offense of aggravated robbery as part of a plea agreement. The trial court deferred adjudicating appellant's guilt, placed her on deferred adjudication community supervision for ten years, and ordered that she complete 320 hours of community service as restitution.

The State subsequently filed a motion to adjudicate guilt. After hearing the motion, the trial court found appellant had violated her community supervision by: (1) using marihuana and cocaine, (2) failing to report to her supervision officer, (3) failing to pay supervision fees, (4) failing to pay for her court-appointed attorney, and (5) failing to complete her community service restitution. The trial court revoked appellant's community supervision, found her guilty of the offense of aggravated robbery, and assessed her punishment at twelve years imprisonment in the Institutional Division of the Texas Department of Criminal Justice.

Appellant's counsel has filed a brief in which she has concluded that this appeal is wholly frivolous and without merit. The brief meets the requirements of Anders v. California, 386 U.S. 738 (1967), as it presents a professional evaluation of why there are no arguable grounds for advancing an appeal. See Stafford v. State, 813 S.W.2d 503 (Tex. Crim. App. 1991). Appellant's counsel states in the brief that she has informed appellant of her right to examine the appellate record and to file a pro se brief. No such brief has been filed.

Article 42.12, section 5 of the code of criminal procedure controls questions concerning deferred adjudication community supervision and motions to adjudicate guilt. Article 42.12, section 5(b) states, in relevant part, as follows:

On violation of a condition of community supervision imposed under Subsection (a) of this section, the defendant may be arrested and detained . . . . 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.

Tex. Code Crim. Proc. Ann. art. 42.12, § 5(b) (Vernon Supp. 2000).

It is well settled that no appeal may be taken from the hearing in which the trial court determines to proceed with an adjudication of guilt on the original charge. 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); Russell v. State, 702 S.W.2d 617, 618 (Tex. Crim. App. 1985); Leal v. State, 962 S.W.2d 652, 653 (Tex. App.--Corpus Christi 1998); Lindsey v. State, 902 S.W.2d 9, 13 (Tex. App.--Corpus Christi 1995). This section provides that an appeal may not be taken from the trial court's determination to adjudicate guilt after deferred adjudication. Tex. Code Crim. Proc. Ann. art. 42.12 § 5(b) (Vernon Supp. 2000). Proceedings subsequent to an adjudication of guilt are appealable. Id. This rule is designed to eliminate appellate review of the hearing on the motion to adjudicate guilt, including but not limited to issues such as admissibility and sufficiency of the evidence. Gilbert v. State, 852 S.W.2d 623, 625 (Tex. App.--Amarillo 1993, no pet.); De Leon v. State, 797 S.W.2d 186, 188 (Tex. App.--Corpus Christi 1990, no pet.); Dahlkoetter v. State, 628 S.W.2d 255, 257 (Tex. App.--Amarillo 1982, no pet.).

There are a limited number of grounds under art. 42.12, section 5(b) allowing an appeal against the trial court's decision to adjudicate; these concern matters of procedure and jurisdiction. See, e.g., Price v. State, 846 S.W.2d 37, 39 (Tex. App.--Dallas 1992), rev'd on other grounds, 866 S.W.2d 606 (Tex. Crim. App. 1993), Eldridge v. State, 731 S.W.2d 618, 619 (Tex. App.--Houston [1st Dist.] 1987, no pet.); Fuller v. State, 653 S.W.2d 65, 66-67 (Tex. App.--Tyler 1983, no pet.); Dahlkoetter, 628 S.W.2d at 257-58.

We have carefully reviewed the entire record and counsel's brief and agree that this appeal is wholly frivolous and without merit. We find nothing in the record which might arguably support this appeal.

We conclude we are without jurisdiction to consider this appeal. We dismiss this appeal for want of jurisdiction.

FEDERICO G. HINOJOSA

Justice

Do not publish. Tex. R. App. P. 47.3.

Opinion delivered and filed this

the 1st day of June, 2000.