Ronald D. Margolis v. State ( 2000 )

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-00-00029-CR
NO. 03-00-00030-CR
NO. 03-00-00031-CR
NO. 03-00-00032-CR
Ronald D. Margolis, Appellant
v.
The State of Texas, Appellee
FROM THE DISTRICT COURT OF HARRIS COUNTY, 185TH JUDICIAL DISTRICT
NOS. 666,527, 666,528, 666,529 & 666,530
HONORABLE SUSAN BROWN, JUDGE PRESIDING
In each of these causes, appellant Ronald D. Margolis pleaded guilty to indecency
with a child by exposure. Tex. Penal Code Ann. § 21.11(a)(2) (West Supp. 2000). The district
court found that the evidence substantiated appellant’s guilt and, pursuant to a plea bargain, placed
appellant on deferred adjudication community supervision. The State later moved to revoke
supervision and proceed to adjudication. After appellant pleaded true to the allegations, the
district court revoked supervision, adjudged appellant guilty, and imposed sentence of
imprisonment for ten years.
In points of error five, six, and seven, appellant contends the district court
fundamentally erred and violated his due process and due course of law rights by revoking
supervision and proceeding to adjudicate based on conduct that did not violate the conditions of
supervision. See U. S. Const. amend. XIV; Tex. Const. art. I, §§ 10, 13, 19. No appeal may
be taken from the determination to revoke supervision and adjudicate guilt. Tex. Code Crim.
Proc. Ann. art. 42.12, § 5(b) (West Supp. 2000). These points of error present nothing for
review. 1
In points of error one and two, appellant contends article 42.12, section 5(b), by
denying him the right to appeal the decision to proceed to adjudication, violates the Texas
Constitution’s open courts and inalienable rights guarantees. See Tex. Const. art. I, §§ 13, 29.
Appellant’s argument fails because it rests on the assumption that he possesses a constitutional
right to appeal that may not be infringed by the legislature. It has long been recognized, however,
that neither the United States nor the Texas Constitution guarantees a right to appeal a criminal
conviction. Phynes v. State, 828 S.W.2d 1, 2 (Tex. Crim. App. 1992). The right to appeal does
not exist unless authorized by statute. Watson v. State, 924 S.W.2d 711, 713 (Tex. Crim. App.
1996). “[W]hen a legislative enactment says an accused may not appeal a determination to
adjudicate, there is no right to do so. ” Phynes, 828 S.W.2d at 2. Points of error one and two,
if properly before us, are overruled. 2
1
Appellant’s argument under these points is that the State failed to prove the alleged
violations, and that the conduct proved did not violate the conditions of supervision. Appellant’s
pleas of true, however, were sufficient to support revocation on the grounds alleged. Moses v.
State, 590 S.W.2d 469, 470 (Tex. Crim. App. 1979); Pequeno v. State, 710 S.W.2d 709, 711
(Tex. App.— Houston [1st Dist.] 1986, pet. ref’d).
2
Other courts of appeals have held that the statutory prohibition of appeals from the decision
to adjudicate precludes even an appeal challenging the constitutionality of the prohibition itself.
Sanders v. State, 944 S.W.2d 448, 450 (Tex. App.— Houston [14th Dist.] 1997, no pet.); Tillman
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In points of error eight and nine, appellant contends he did not receive effective
assistance of counsel at the punishment hearing that followed the adjudications of guilt.
Appellant’s general notices of appeal do not state that he has the district court’s permission to raise
this issue. See Tex. R. App. P. 25.2(b)(3)(C); see Watson, 924 S.W.2d at 714. Once again,
nothing is presented for review.
In points of error three and four, appellant contends the application of appellate rule
25.2(b)(3) to these appeals also violates article I, sections 13 and 29 of the Texas Constitution.
Appellant argues that the rule effectively nullifies the right to appeal granted by article 42. 12,
section 5(b), which permits an appeal following adjudication of guilt “as if the adjudication of
guilt had not been deferred.” Tex. Code Crim. Proc. Ann. art. 42.12, § 5(b).
The limited right to appeal following a negotiated guilty plea was initially enacted
by the legislature. See Act of May 23, 1977, 65th Leg., R.S., ch. 351, § 1, 1977 Tex. Gen.
Laws 940 (Tex. Code Crim. Proc. Ann. art. 44.02, proviso repealed by order of Texas Court of
Criminal Appeals effective Sept. 1, 1986). The restriction was carried forward into former Texas
Rule of Appellate Procedure 40(b)(1), the predecessor of current rule 25.2(b)(3). The court of
criminal appeals determined that the application of rule 40(b) to appeals pursuant to article 42. 12,
section 5(b) was intended by the legislature. Watson, 924 S.W.2d at 714. Because the right to
appeal in criminal cases is defined by the legislature, it follows that rule 25. 2(b)(3) does not
impermissibly infringe on appellant’s right to appeal. Points of error three and four are overruled.
v. State, 919 S.W.2d 836, 838 (Tex. App.—
Fort Worth 1996, pet. ref’d).
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The judgments of conviction are affirmed.
J. Woodfin Jones, Justice
Before Justices Jones, Kidd and Yeakel
Affirmed
Filed: November 30, 2000
Do Not Publish
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