Lenard Zane Carson, Sr. v. State ( 2005 )

COURT OF APPEALS

EIGHTH DISTRICT OF TEXAS

EL PASO, TEXAS

LENARD ZANE CARSON, SR.,                            Appellant, v. THE STATE OF TEXAS,                             Appellee.

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No. 08-04-00055-CR Appeal from the 143rd District Court of Reeves County, Texas (TC#00-09-06480-CRR)

MEMORANDUM OPINION

           Appellant has appealed his adjudication of guilt for conviction for indecency with a child. The State, in its brief, contends that this Court lacks jurisdiction to consider this appeal. We requested that Appellant respond to this allegation and Appellant filed his letter brief. Because we find that Appellant is attempting to appeal the trial court's decision to adjudicate him guilty, we agree with the State and dismiss this appeal for want of jurisdiction.

I. FACTUAL HISTORY

           On November 17, 2000, Appellant pleaded guilty to the offense of indecency with a child. Appellant’s adjudication of guilt was deferred and was made supervisory for a term of five years. On January 9, 2004, a motion to adjudicate Appellant’s guilt was filed by the State for violation of the terms of supervision. On January 30, 2004, the trial court adjudicated Appellant’s guilt and rendered his sentence at twelve years’ confinement in the Institutional Division of the Texas Department of Criminal Justice.

           Appellant filed a motion for new trial and after two hearings were held, the trial court denied the motion.

           Appellant has filed an appeal raising two issues.

II. ISSUES ON APPEAL

           In Issue No. One, Appellant complains that the trial court abused its discretion in adjudicating his guilt and ordering him to be sentenced to twelve years’ confinement because his reasons for violating the terms of his supervision were due to an emergency. Issue No. Two complains that the trial court abused its discretion in denying his motion for new trial because the evidence considered by the trial during the adjudication hearing was perjured testimony.

           The issues raised on appeal pertain to the trial court’s decision to adjudicate Appellant. Pursuant to Article 42.12, section 5(b) of the Texas Code of Criminal Procedure, an appellant whose deferred adjudication probation has been revoked and who has been adjudicated guilty of the original charge, may not raise on appeal contentions of error in the adjudication of guilt process.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). See Tex. Code Crim. Proc. Ann. art. 42.12, § 5(b) (Vernon Supp. 2004-05).

           Article 42.12, section 5(b) provides, in relevant part:

On violation of a condition of community supervision imposed under Subsection (a) of this section, the defendant may be arrested and detained as provided in Section 21 of this article. The 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. [Emphasis added].

Tex. Code Crim. Proc. Ann. art. 42.12, § 5(b) (Vernon Supp. 2004-05).

           It is well established that a defendant whose deferred adjudication probation 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. See, e.g., Connolly, 983 S.W.2d at 740-41 (reiterating what it characterized as the plain meaning of Article 42.12, section 5(b) and holding that defendant was not permitted to appeal whether State utilized due diligence); Olowosuko v. State, 826 S.W.2d 940, 942 (Tex. Crim. App. 1992) (following adjudication of guilt, defendant not permitted to raise points of error related to alleged vagueness of conditions of probation or sufficiency of motion to revoke); Phynes v. State, 828 S.W.2d 1, 2 (Tex. Crim. App. 1992) (defendant not permitted to raise point of error concerning whether his right to counsel had been violated at adjudication hearing); Wright v. State, 592 S.W.2d 604, 606 (Tex. Crim. App. 1980) (holding that “no appeal may be taken from the hearing in which the trial court determines to proceed with an adjudication of guilt on the original charge”); Williams v. State, 592 S.W.2d 931, 932-33 (Tex. Crim. App. 1979) (“the trial court’s decision to proceed with an adjudication of guilt, is one of absolute discretion and [is] not reviewable . . . .”).

           Although Appellant couches his issue on appeal as a complaint about the trial court’s denial of his motion for new trial, the argument contained in his brief reflects that he is actually complaining about the basis for the trial court’s decision to adjudicate and the evidence considered by the trial court. Consequently, we lack jurisdiction to review the issue raised by Appellant. Having determined that we have no jurisdiction in the matter, we therefore dismiss this appeal.

                                                                  RICHARD BARAJAS, Chief Justice

February 17, 2005

Before Barajas, C.J., McClure, and Chew, JJ.

(Do Not Publish)