Tammy Lynn Dixon v. State ( 2006 )

In The

Court of Appeals

Sixth Appellate District of Texas at Texarkana

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No. 06-05-00114-CR

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TAMMY LYNN DIXON, Appellant

V.

THE STATE OF TEXAS, Appellee

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On Appeal from the 115th Judicial District Court

Upshur County, Texas

Trial Court No. 13,302

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Before Morriss, C.J., Ross and Carter, JJ.

Memorandum Opinion by Chief Justice Morriss

MEMORANDUM OPINION

             Tammy Lynn Dixon, appellant, has filed with this Court a motion to dismiss her appeal. The motion is signed by Dixon and her counsel in compliance with Tex. R. App. P. 42.2(a). As authorized by Rule 42.2, we grant the motion. See Tex. R. App. P. 42.2.

            Accordingly, we dismiss the appeal.

                                                                        Josh R. Morriss, III

                                                                        Chief Justice

Date Submitted:          May 30, 2006

Date Decided:             May 31, 2006

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">Ross

MEMORANDUM OPINION

          George Monroe Peckham was placed on deferred adjudication community supervision for ten years after pleading guilty to aggravated sexual assault of a child. Nine years later, the State filed its motion to proceed to final adjudication, alleging four violations of community supervision. At the hearing on the State's motion, Peckham pled true to two of the alleged violations and not true to the other two. The trial court found all four alleged violations to be true, revoked Peckham's community supervision, adjudged him guilty, assessed his punishment at twenty years' imprisonment, and sentenced him accordingly.

          Peckham appeals, complaining that the reporter's record of the original plea hearing is unavailable and that the trial court erred in admitting polygraph evidence at the adjudication hearing. We dismiss Peckham's appeal because he is precluded from asserting his first complaint and we lack jurisdiction to consider the second.

          The State agrees that the reporter's record of the original plea proceeding is unavailable. However, the unavailability of the reporter's record of that proceeding is not a matter Peckham is allowed to assert in an appeal from the revocation of community supervision. Vidaurri v. State, 49 S.W.3d 880 (Tex. Crim. App. 2001); Daniels v. State, 30 S.W.3d 407 (Tex. Crim. App. 2000); Manuel v. State, 994 S.W.2d 658 (Tex. Crim. App. 1999). Accordingly, we cannot consider this complaint.

          Further, this Court lacks jurisdiction to consider Peckham's other complaint because it concerns alleged error at the adjudication hearing. Such contentions are not appealable. Article 42.12, Section 5(b) of the Code of Criminal Procedure expressly provides, in relevant part, as follows:

(b) On violation of a condition of community supervision imposed under [deferred adjudication community supervision], . . . [t]he defendant 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. No appeal may be taken from this determination.

Tex. Code Crim. Proc. Ann. art. 42.12, § 5(b) (Vernon Supp. 2005) (emphasis added).

          This provision has been construed to mean that an appellant whose deferred adjudication community supervision has been revoked, and who has been adjudicated guilty of the original charge, may not raise on appeal contentions of error in the adjudication of guilt process. Connolly v. State, 983 S.W.2d 738, 741 (Tex. Crim. App. 1999); Brown v. State, 79 S.W.3d 140, 141 (Tex. App.—Texarkana 2002, no pet.). Accordingly, we are without jurisdiction to consider Peckham's complaint that the trial court erred in admitting polygraph evidence at his adjudication hearing.

          Even if we had jurisdiction to consider Peckham's complaint, any error in admitting the polygraph evidence would be harmless because he pled true to two of the State's alleged violations of community supervision. It is well settled that proof of a single violation is sufficient to support revocation of community supervision. O'Neal v. State, 623 S.W.2d 660, 661 (Tex. Crim. App. 1981); Myers v. State, 780 S.W.2d 441, 445 (Tex. App.—Texarkana 1989, pet. ref'd).

          For these reasons, we dismiss Peckham's appeal for want of jurisdiction.

                                                                Donald R. Ross

                                                                Justice

Date Submitted:      March 3, 2006

Date Decided:         March 28, 2006

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