Sammie Lee Lott v. State ( 2005 )

                             NUMBER 13-04-179-CR

                         COURT OF APPEALS

               THIRTEENTH DISTRICT OF TEXAS

                  CORPUS CHRISTI - EDINBURG

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SAMMIE LEE LOTT,                                                  Appellant,

                                           v.

THE STATE OF TEXAS,                                              Appellee.

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                  On appeal from the 377th District Court

                           of Victoria County, Texas.

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                     MEMORANDUM OPINION

       Before Chief Justice Valdez and Justices Hinojosa and Rodriguez

                      Memorandum Opinion by Justice Rodriguez

Appellant, Sammie Lee Lott, was charged by indictment with the felony offense of aggravated sexual assault.  See Tex. Pen. Code Ann. ' 22.021 (Vernon 2003).  Pursuant to a plea bargain, the trial court deferred adjudication and imposed community supervision, a $2,500 fine, 600 hours of community service, and a condition of no contact with the alleged victim or her mother.  The State subsequently moved to adjudicate appellant=s guilt alleging numerous violations of appellant=s community supervision.  After conducting a hearing, the trial court revoked appellant=s community supervision, adjudicated him guilty and assessed punishment at twenty years imprisonment in the Institutional Division of the Texas Department of Criminal Justice. By two points of error, appellant contends (1) the statutory prohibition on appealing adjudication hearings violates the Fourteenth Amendment of the United States Constitution and (2) the trial court violated appellant=s right to due process when it found he failed to complete his community service hours. Both of these issues relate to the trial court's determination to adjudicate guilt.  We dismiss the appeal.

Texas Code of Criminal Procedure article 42.12, section 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.

Tex. Code Crim. Proc. Ann. art. 42.12 ' 5(b) (Vernon Supp. 2004-05) (emphasis added).

This section Aexpressly 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.BCorpus 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.BCorpus Christi 2001, no pet.), but not from the decision to adjudicate itself.  Perinon v. State, 54 S.W.3d 848, 849 (Tex. App.BCorpus Christi 2001, no pet.).

Appellant argues that this law is unconstitutional. However, it is well‑settled that neither the Texas Constitution nor United States Constitution mandates 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.

NELDA V. RODRIGUEZ

Justice

Do not publish.

Tex. R. App. P. 47.2(b).

Memorandum Opinion delivered and

filed this 14th day of July, 2005.