Kevin Eugene Matthew v. State ( 2004 )

                                 NUMBER 13-03-457-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG

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KEVIN EUGENE MATTHEW,                                               Appellant,

v.

THE STATE OF TEXAS,                                                      Appellee.

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    On appeal from the 156th District Court

of Bee County, Texas.

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    MEMORANDUM OPINION

Before Chief Justice Valdez and Justices Hinojosa and Castillo

Opinion by Justice Castillo  

         Appellant Kevin Eugene Matthew appeals his conviction for indecency with a child. We affirm.

I. BACKGROUND

          On October 3, 1996, Matthew pleaded guilty to a three-count indictment. The trial court deferred a finding of guilt and placed Matthew on community supervision for a term of ten years. Following the State's amended motion to adjudicate, Matthew pleaded not true to allegations he violated the terms of his community supervision. On May 1, 2003, the trial court adjudicated Matthew's guilt, imposed a sentence of twenty years confinement in the Institutional Division of the Texas Department of Criminal Justice, and assessed a $10,000 fine. The trial court has certified that this is not a plea-bargain case, and Matthew has the right to appeal. See Tex. R. App. P. 25.2(a)(2). This appeal ensued.

         The terms and conditions of Matthew's community supervision required that he: (1) commit no offense against the laws of this State, any other State, or of the United States; and (2) not accompany any person under the age of eighteen (18) years without the presence of the minor's parent or parents. In an amended motion to revoke filed April 15, 2003, the State alleged that Matthew violated these terms and conditions by: (1) committing the offense of sexual performance of a child in violation of section 43.25 of the Texas Penal Code; and (2) accompanying a person under the age of eighteen years on four occasions in March and April of 2003.

II. THE ISSUES ON APPEAL

         In eight issues, Matthew contends: (1) the State's amended motion to revoke community supervision failed to allege the criminal offense of sexual performance of a child; (2) the State did not prove by a preponderance of the evidence that the alleged offense occurred in Nueces County, Texas; (3) the State did not prove by a preponderance of the evidence that Matthew "produced" any "performance"; (4) the State did not prove by a preponderance of the evidence that each of Matthew's alleged accompaniments of a person under the age of eighteen years occurred in Nueces County, Texas; (5) the State did not prove by a preponderance of the evidence that Matthew "accompanied" a person less than eighteen years old without the presence of the minor's parent or parents; (6) Matthew received the ineffective assistance of counsel in that counsel: (a) did not object to the State's introduction of photographs allegedly developed from film submitted by Matthew for processing, (b) did not object to the State's opening statement and eliciting of testimony regarding grand jury proceedings accusing Matthew of indecency with a child, (c) did not object to the State's direct examination of a witness about placing her daughter in counseling or to questions regarding the truthfulness of the daughter, and (d) elicited on cross-examination evidence of extraneous criminal conduct by Matthew; (7) the trial court abused its discretion in admitting the photographs; and (8) because of each of the foregoing errors, the trial court abused its discretion in revoking Matthew's community supervision. We note that each of Matthew's issues assails the trial court's adjudication decision, not the punishment it assessed.

          III. DISPOSITION

         No appeal lies from the trial court's decision to adjudicate Matthew's guilt. See Tex. Code Crim. Proc. Ann. art. 42.12 § 5(b) (Vernon Supp. 2004); see also Connolly v. State, 983 S.W.2d 738, 741 (Tex. Crim. App. 1999). We have no power to review any challenge Matthew may have to the sufficiency of the notice contained in the terms and conditions of the community supervision imposed by the trial court, adequacy of the State's motion to revoke, or sufficiency of the evidence to support the trial court's revocation decision. See Connolly, 983 S.W.2d at 741. Further, while article 42.12 does not prohibit a claim that counsel was ineffective during the punishment hearing following adjudication, it does prohibit a claim that counsel was ineffective during the adjudication phase. See Kirtley v. State, 56 S.W.3d 48, 51-52 (Tex. Crim. App. 2001). We overrule issues one through eight.

         Matthew's appeal does require exercise of our review power to the extent it relates to errors unrelated to his conviction. See Tex. Code Crim. Proc. Ann. art. 42.12, § 5(b) (Vernon Supp. 2004); see also Kirtley, 56 S.W.3d at 51-52 (citing Vidaurri v. State, 49 S.W.3d 880, 883 (Tex. Crim. App. 2001); May v. State, 106 S.W.3d 375, 376 n.4 (Tex. App.–Corpus Christi 2003, no pet.) (applying Vidaurri to appeal commenced after January 1, 2003 to hold requirements of current rule 25.2(a)(2) inapplicable to claim of error in misapplication of mandatory sentencing statute). Once the trial court adjudicates the guilt of a defendant on deferred adjudication community supervision, the assessment of punishment, pronouncement of sentence, and the defendant's appeal continue as if the adjudication of guilt had not been deferred. Tex. Code Crim. Proc. Ann. art. 42.12, § 5(b) (Vernon Supp. 2004). However, Matthew has not asserted any error in the trial court's assessment of punishment or pronouncement of sentence.

IV. CONCLUSION

         Having overruled each of Matthew's issues, we affirm the judgment of conviction and sentence.

                                                                        ERRLINDA CASTILLO

                                                                        Justice

Do Not Publish.

Tex. R. App. P. 47.2(b).

Memorandum Opinion delivered and filed

this 11th day of March, 2004.