Jeremy Clary v. State ( 2007 )

In The

Court of Appeals

Ninth District of Texas at Beaumont

______________________ NO. 09-06-339 CR ______________________ JEREMY CLARY, Appellant

V.

THE STATE OF TEXAS, Appellee

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On Appeal from the 411th District Court San Jacinto County, Texas Trial Cause No. 9010

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  MEMORANDUM OPINION

Pursuant to a plea bargain agreement, Jeremy Clary pled guilty to indecency with a child. See Tex. Pen. Code Ann. § 21.11(a) (Vernon 2003). The trial court found the evidence sufficient to support the guilty plea, but deferred an adjudication of guilt. The court placed Clary on community supervision for ten years and assessed a $2,000 fine.

Clary submitted to a polygraph examination in which he admitted to engaging in acts that violated the terms of his community supervision. Clary spoke with his probation officer and confirmed that Clary engaged in several prohibited acts.

The State filed a motion to proceed with the adjudication of guilt based on Clary's violations of the terms of his community supervision and the conditions of his sex offender registration. Clary pled "not true" to violating the alleged conditions. After considering the evidence, the trial court found that five counts alleged in the motion were true and that Clary violated a condition of his sex offender registration. The court found Clary guilty of indecency with a child and assessed punishment at twelve years of confinement in the Institutional Division of the Texas Department of Criminal Justice.

Clary argues in this appeal that requiring him to submit to a polygraph examination was an unreasonable term of his community supervision. Clary contends the violations alleged in the State's motion were based on admissions he made during the polygraph examination, and the trial court considered the admissions he made during the polygraph examination when deciding to adjudicate his guilt.

Article 42.12, section 5(b) of the Texas Code of Criminal Procedure provides that if a defendant violates a condition of deferred adjudication community supervision, he is entitled to a hearing limited to the court's determination of whether it proceeds with an adjudication of guilt on the original charge. Tex. Code Crim. Proc. Ann. art. 42.12, § 5(b) (Vernon 2006). A defendant may not appeal from the court's determination to proceed with an adjudication of guilt. Id. An appellant may not raise a claim challenging the validity of the conditions of his community supervision on direct appeal from the adjudication. See Olowosuko v. State, 826 S.W.2d 940, 941, 942 n.1 (Tex. Crim. App. 1992) (Overstreet, J., concurring). An appellate court does not have the jurisdiction to consider claims that relate to the trial court's determination to proceed with guilt on the original charge. Davis v. State, 195 S.W.3d 708, 710 (Tex. Crim. App. 2006).

Clary essentially argues that any alleged violations based on the admissions made during the polygraph examination cannot support the determination to proceed with an adjudication of guilt. The asserted error concerns the decision to proceed with an adjudication of guilt. See id. We dismiss the appeal.

APPEAL DISMISSED.

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DAVID GAULTNEY

Justice

Submitted on April 12, 2007

Opinion Delivered July 25, 2007

Do not publish

Before Gaultney, Kreger, and Horton, JJ.