Amy Suzanne Mathis v. State ( 2008 )

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NOS. 2-06-462-CR
2-06-463-CR
AMY SUZANNE MATHIS APPELLANT
V.
THE STATE OF TEXAS STATE
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FROM THE 213TH DISTRICT COURT OF TARRANT COUNTY
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MEMORANDUM OPINION 1
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I. Introduction
In one point, Appellant Amy Suzanne Mathis appeals the revocation of her
probation. We dismiss her appeal.
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… See T EX. R. A PP. P. 47.4.
II. Factual and Procedural History
On December 19, 2005, Appellant pleaded guilty to charges of
possession with intent to deliver a controlled substance of less than one gram
and possession of a controlled substance of less than one gram. In each case,
the court deferred adjudication of Appellant’s guilt and placed Appellant on
community supervision for three years.
On November 21, 2006, the State filed a second petition to adjudicate,
alleging that Appellant had violated the terms of her community supervision by
committing a new offense. Appellant pleaded not true to the State’s motion to
revoke. However, the trial court found the allegation to be true, revoked
Appellant’s community supervision, adjudicated her guilt, and sentenced her to
two years’ confinement in each case with the sentences to run concurrently.
In Appellant’s sole issue on appeal, she argues that the evidence was
insufficient to allow the revocation of her community supervision when the
evidence failed to show ownership of the property allegedly taken from the
Kroger store.
III. Applicable Law and Analysis
In a case involving revocation of deferred adjudication community
supervision, case law limits our independent review to potential errors not
involving the decision to adjudicate and potential errors occurring after
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adjudication.2 See Davis v. State, 195 S.W.3d 708, 710 (Tex. Crim. App.
2006).
According to article 42.12, section 5(b) of the Texas Code of Criminal
Procedure, a defendant who has been placed on deferred adjudication
community supervision and who is later accused of violating a condition of her
community supervision “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.” T EX. C ODE C RIM. P ROC. A NN. art. 42.12, § 5(b). A defendant cannot
appeal the trial court’s decision to adjudicate guilt. Hargesheimer v. State, 182
S.W.3d 906, 912 (Tex. Crim. App. 2006).
In the present case, Appellant’s sole issue is related to the trial court’s
decision to adjudicate her guilt. Article 42.12, section 5(b) denies Appellant the
right to appeal this decision. See T EX. C ODE C RIM. P ROC. A NN. art. 42.12;
Connolly v. State, 983 S.W.2d 738, 739 (Tex. Crim. App. 1999); Tatum v.
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… Effective June 15, 2007, the legislature amended article 42.12,
section 5(b) of the code of criminal procedure to omit the provision that no
appeal may be taken from a trial court’s determination adjudicating guilt and to
provide that an appellate court can review a trial court’s revocation of deferred
adjudication in the same manner as a revocation hearing in which the trial court
had not deferred an adjudication of guilt. See Act of May 29, 2007, 80th Leg.,
R.S., ch. 1308, §5, 2007 Tex. Gen. Laws 4395, 4397 (codified at T EX. C ODE
C RIM . P ROC. A NN. art. 42.12, § 5(b) (Vernon Supp. 2007)). Appellant’s guilt
was adjudicated in December 2006, however, so this amendment does not
apply to this case.
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State, 166 S.W.3d 362, 364 (Tex. App.—Fort Worth 2005, pet. ref’d).
Therefore, we dismiss Appellant’s appeal. See Tatum, 166 S.W.3d at 364.
BOB MCCOY
JUSTICE
PANEL B: DAUPHINOT, GARDNER, and MCCOY, JJ.
DO NOT PUBLISH
T EX. R. A PP. P. 47.2(b)
DELIVERED: March 20, 2008
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