Anthony Vega v. State ( 2006 )

VEGA V. STATE

COURT OF APPEALS

SECOND DISTRICT OF TEXAS

FORT WORTH

NO.  2-05-245-CR

ANTHONY VEGA APPELLANT

V.

THE STATE OF TEXAS STATE

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FROM THE 367TH DISTRICT COURT OF DENTON COUNTY

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MEMORANDUM OPINION ^{(footnote: 1)}

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In this appeal, Appellant Anthony Vega is attempting to appeal the trial court’s decision to proceed with adjudication of guilt for the felony offense of aggravated assault.  In his first point, Vega contends that the trial court abused its discretion in revoking his community supervision because the evidence did not support the trial court’s finding that he violated the terms and conditions of his community supervision by violating a protective order.  In his second point, Vega complains that the statute that provides the trial court’s authority to adjudicate his guilt is unconstitutional because it violates his right to due process.  In both points, Vega is attempting to directly appeal the trial court’s decision to proceed to adjudication.

The code of criminal procedure governs a hearing to determine whether to proceed to an adjudication of guilt.   See Tex. Code Crim. Proc. Ann . art. 42.12, § 5(b) (Vernon Supp. 2005).  That section also provides that no appeal may be taken from the determination.   See id. Additionally, this court has held that the prohibition is total, including challenges to the constitutionality of section 5(b) itself.   Kendall v. State, 929 S.W.2d 509, 510 (Tex. App.—Fort Worth 1996, pet. ref’d); Tillman v. State , 919 S.W.2d 836, 838 (Tex. App.—Fort  Worth 1996, pet. ref'd.).  Vega’s remedy (if any) is by way of post-conviction writ of habeas corpus.   See Tex. Code Crim. Proc. Ann . art. 11.07 § 3(b) (Vernon 2005); Phynes v. State , 828 S.W.2d 1, 1-2 (Tex. Crim. App. 1992); Kendall , 929 S.W.2d at 510.  Accordingly, Vega’s points are not reviewable.  We overrule Vega’s points and affirm the trial court’s judgment.

PER CURIAM

PANEL F: MCCOY, GARDNER, and WALKER, JJ.

WALKER, J. dissent without opinion.

DO NOT PUBLISH

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

DELIVERED: February 23, 2006

FOOTNOTES

1:

See Tex. R. App. P. 47.4.