William Ferreira v. State ( 2004 )

  NUMBER 13-03-059-CR

  COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG   

WILLIAM FERREIRA,                                                                  Appellant,

v.

THE STATE OF TEXAS,                                                     Appellee.

On appeal from the 377th District Court of Victoria County, Texas.  

MEMORANDUM OPINION  

Before Justices Yañez, Rodriguez, and Garza  

Memorandum Opinion by Justice Garza

Appellant, William Ferreira, pled guilty to unauthorized absence from a community correctional facility. See Tex. Pen. Code Ann. § 38.113 (Vernon 2003). Pursuant to a plea bargain, the trial court deferred adjudication and imposed community supervision. See Tex. Code Crim. Proc. Ann. art. 42.12 § 5(b) (Vernon Supp. 2004). The State brought a motion to adjudicate guilt after appellant violated several conditions of his community supervision agreement. Appellant pled “not true” to the allegations. After a hearing, the trial court found that the allegations were true and that appellant had committed violations of his community supervision conditions. The trial court revoked appellant’s community supervision, adjudicated him guilty, and sentenced him to two years in a state jail and a fine of $5,000.

In two issues, appellant contends that: (1) the statutory prohibition on appealing adjudication hearings violates the Fourteenth Amendment of the United States Constitution; and (2) his community supervision was revoked unconstitutionally. Both of these issues relate to the trial court’s determination to adjudicate guilt. We dismiss.

Texas Code of Criminal Procedure article 42.12 § 5(b) provides:On violation of a condition of community supervision . . . , 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 to adjudication of guilt on the original charge. No appeal may be taken from this determination. After an adjudication of guilt, all proceedings, including assessment of punishment, pronouncement of sentence, granting of community supervision, and defendant’s appeal continue as if the adjudication of guilt had not been deferred.

Id. (emphasis supplied).

          This rule “expressly denies a defendant the right to appeal from a trial court’s determination to adjudicate.” Perez v. State, 28 S.W.3d 627, 633 (Tex. App.–Corpus Christi 2000, no pet.); see Olowosuko v. State, 826 S.W.2d 940, 942 (Tex. Crim. App. 1992). Appeals can be made from all proceedings conducted after the adjudication of guilt on the original charge, such as assessment of punishment and pronouncement of sentence, Perez, 28 S.W.3d at 633; see also Jones v. State, 39 S.W.3d 691, 693 (Tex. App.–Corpus Christi 2001, no pet.), but not from the decision to adjudicate itself. Perinon v. State, 54 S.W.3d 848, 849 (Tex. App.–Corpus Christi 2001, no pet.).

          Appellant argues that this law is unconstitutional. However, it is well-settled that neither the Texas nor United States constitutions mandate any appellate review of state criminal convictions, and that the state may lawfully limit or deny the right to appeal a criminal conviction. See Phynes v. Texas, 828 S.W.2d 1, 2 (Tex. Crim. App. 1992) (specifically finding constitutional the State’s refusal of the right to appeal motions to adjudicate following a person’s violation of a deferred adjudication agreement). The appropriate forum for appellant’s argument is the legislature rather than the courts.

          We accordingly dismiss.  

                                                                                      _______________________  

                                                                                      DORI CONTRERAS GARZA,

                                                                                      Justice

Do not publish.

Tex.R.App.P. 47.2(b)  

Memorandum Opinion delivered

and filed this the 19^th day of August, 2004.