Davalos, Christopher v. State ( 2003 )

Dismissed and Memorandum Opinion filed February 6, 2003

Dismissed and Memorandum Opinion filed February 6, 2003.

In The

Fourteenth Court of Appeals

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NO. 14-02-00440-CR

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CHRISTOPHER DAVALOS, Appellant

V.

THE STATE OF TEXAS, Appellee

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On Appeal from the 400th District Court

Fort Bend County, Texas

Trial Court Cause No. 30,577

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M E M O R A N D U M   O P I N I O N

            Appellant Christopher Davalos appeals his conviction for possession of a controlled substance.  Specifically, he contends the trial court erred by granting the State’s motion to adjudicate guilt based upon inadmissible hearsay evidence. We dismiss for want of jurisdiction.

Facts

            Appellant was charged by indictment with possession of a controlled substance.  Thereafter, he pleaded guilty and was placed on deferred adjudication for four years. The State later moved to adjudicate appellant’s guilt for two violations: (1) failure to complete community supervision; and (2) failure to participate in a literacy program. During the adjudication hearing, appellant objected that community service records were inadmissible hearsay and violated his right to confrontation. 

Issue Not Appealable

            It is well settled that a court’s determination to adjudicate guilt is controlled by article 42.12, sections 5(a)-(b) of the Code of Criminal Procedure. Section 5(b) provides that:  “No appeal may be taken from this determination [to proceed with an adjudication of guilt].” Tex. Code Crim. Proc. Ann. art. 42.12, § 5(b) (Vernon Supp. 2002); 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).  This prohibition on appeals also bars claims involving deprivations of due process.  See Phynes v. State, 828 S.W.2d 1, 2 (Tex. Crim. App. 1992); Russell, 702 S.W.2d at 618.  Consequently, the trial court’s decision to proceed with an adjudication of guilt is one of absolute, nonreviewable discretion.  Williams v. State, 592 S.W.2d 931, 932–33 (Tex. Crim. App. 1979).  Therefore, we have no jurisdiction to review appellant’s complaints regarding admission of hearsay and the resulting denial of his right to confrontation of witnesses.  Burger v. State, 920 S.W.2d 433, 437 (Tex. App.—Houston [1st Dist.] 1996, pet. ref’d).  Accordingly, we dismiss for want of jurisdiction. 

                                                                        /s/        Charles W. Seymore

                                                                                    Justice

Judgment rendered and Memorandum Opinion filed February 6, 2003.

Panel consists of Justices Edelman, Seymore, and Guzman.

Do Not Publish — Tex. R. App. P. 47.2(b).