Danny Ray Wynn v. State ( 2006 )

                              NUMBER 13-04-563-CR

                         COURT OF APPEALS

                     THIRTEENTH DISTRICT OF TEXAS

                         CORPUS CHRISTI - EDINBURG 

DANNY RAY WYNN,                                                                       Appellant,

v.

THE STATE OF TEXAS,                                                                 Appellee.

On appeal from the 36th District Court of San Patricio County, Texas.

MEMORANDUM OPINION

                         Before Justices Hinojosa, Yañez, and Garza

                            Memorandum Opinion by Justice Garza

Appellant, Danny Ray Wynn, challenges his conviction for possession of a controlled substance by two issues.  The State maintains that this Court is barred by the code of criminal procedure from addressing the issues raised by appellant because they involve the trial court=s decision to revoke community supervision and to proceed with an adjudication of guilt.  We agree.

Texas Code of Criminal Procedure article 42.12, ' 5(b) expressly denies a defendant the right to appeal from a  trial court=s decision to proceed with adjudicating the defendant=s guilt.  Tex. Code Crim. Proc. Ann. art. 42.12 ' 5(b) (Vernon Supp. 2005).  Appeals can be made from all proceedings conducted after the adjudication of guilt on the original charge, such as assessment of punishment and pronouncement of sentence, Perez v. State, 28 S.W.3d 627, 633 (Tex. App.CCorpus Christi 2000, no pet.); see also Jones v. State, 39 S.W.3d 691, 693 (Tex. App.CCorpus Christi 2001, no pet.), but not from the decision to adjudicate itself.  Perinon v. State, 54 S.W.3d 848, 849 (Tex. App.CCorpus Christi 2001, no pet.).  Thus, although appellant may appeal the final judgment of conviction, this Court cannot review claims of error regarding the trial court=s decision to proceed with an adjudication of guilt.  Connolly v. State, 983 S.W.2d 738, 741 (Tex. Crim. App.  1999).

The two issues raised by appellant challenge the trial court=s decision to revoke community supervision and to proceed with an adjudication of guilt. Appellant=s first issue is that the trial court abused its discretion by denying Aappellant=s claim that the prosecution failed to use due diligence in prosecuting the motion to revoke community supervision.@  According to appellant, there is no evidence that the State used due diligence to apprehend appellant and to have the allegations in the motion to revoke heard and determined by the trial court.  The Court of Criminal Appeals has held that, in cases such as this, the points of error dealing with due diligence must be dismissed by the court of appeals without addressing or reaching their merits.  Id.  Accordingly, appellant=s first issue must be dismissed.    

In his second issue, appellant contends that he was denied effective assistance of counsel during the hearing on the State=s motion to revoke. In Perinon, this Court specifically held that, under article 42.12, ' 5(b), no direct appeal could be made regarding the effectiveness of counsel=s representation during a revocation proceeding.  Perinon, 54 S.W.3d at 849.  Appellant=s second issue is therefore dismissed.

The judgment of the trial court is affirmed.      

_______________________

DORI CONTRERAS GARZA,

Justice

Do not publish.                                             

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

Memorandum Opinion delivered and

filed this the 13th day of April, 2006.