Murphy, Harry v. State ( 2000 )

NUMBER 13-98-610-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI

___________________________________________________________________

HARRY MURPHY,

Appellant,

v.

THE STATE OF TEXAS, Appellee.

___________________________________________________________________

On appeal from the 130th District Court of Matagorda County, Texas.

___________________________________________________________________

O P I N I O N

Before Chief Justice Seerden and Justices Dorsey and Yañez Opinion by Justice Yañez

Harry Murphy, appellant, pleaded guilty to the charge of aggravated assault with use of a deadly weapon.⁽¹⁾ The trial court deferred adjudication of guilt and placed him on community supervision for a period of ten years. Following a hearing on the State's motion to adjudicate, appellant was adjudicated guilty and sentenced to ten years imprisonment. In seven points of error, appellant challenges the trial court's adjudication and revocation of his community supervision, contending (1) there was insufficient evidence to support the revocation, (2) a lack of probable cause to support his arrest and the search of his vehicle, (3) chain of custody violations, and (4) that the trial court abused its discretion by imposing the ten year sentence. We dismiss this appeal for want of jurisdiction.

FACTS

On February 6, 1996, appellant entered a plea of guilty to the offense of aggravated assault with use of a deadly weapon. The trial court, after finding the facts sufficient to find appellant guilty, ordered that further proceedings be deferred without entering an adjudication of guilt and placed appellant on deferred adjudication probation for a period of ten years, specifying terms and conditions of community supervision.

On November 24, 1997, state trooper James Lucky stopped appellant for speeding and failure to wear a seat belt. According to the officer, appellant consented to a search of the vehicle, which revealed one and a half crack cocaine cookies and a marijuana cigar. Appellant was arrested, and after being advised of his rights, gave a written statement admitting possession of the crack cocaine and marijuana.

On August 11, 1998, the State filed a motion to adjudicate, alleging subsequent law violations, failure to report, and failure to pay fines, fees and costs, all in violation of the terms of his probation. Appellant pleaded "not true" to all counts. On October 8, 1998, after a hearing on the State's motion, the trial court adjudicated appellant guilty on the original charge and sentenced appellant to ten years imprisonment.

DISCUSSION

In seven points of error, appellant alleges Fourth Amendment violations in effecting his arrest, abuse of discretion by the trial judge in sentencing him to the full ten year term, and indigency as a basis for non-payment of fees. In its brief, the State contends there was probable cause for the arrest and that the evidence is sufficient, through appellant's own confession, to show he engaged in the possession of controlled substances in violation of his conditions of community supervision.

Violations of community supervision and adjudications of guilt for those granted deferred adjudication are governed by article 42.12, §5(b) of the Texas Code of Criminal Procedure, which provides:

(b) On violation of a condition of community supervision imposed under Subsection (a) of this section, the defendant may be arrested and detained.... 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. After an adjudication of guilt, all proceedings, including assessment of punishment, pronouncement of sentence, granting of community supervision, 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. 2000) (emphasis added).

The court of criminal appeals has held that the above-quoted statement means exactly what it says. Olowosuko v. State, 826 S.W.2d 940, 942 (Tex. Crim. App. 1992) (citing Williams v. State, 592 S.W.2d 931, 932 (Tex. Crim. App. 1979)); see also Burger v. State, 920 S.W.2d 433, 436 (Tex. App.--Houston [lst Dist.] 1996, pet. ref'd); Rocha v. State, 903 S.W.2d 789, 790 (Tex. App.--Dallas 1995, no pet.).

In Williams, the court of criminal appeals held that "the trial court's decision to proceed with an adjudication of guilt, is one of absolute discretion and not reviewable by this Court." Williams, 592 S.W.2d at 932-33; see also Abdallah v. State, 924 S.W.2d 751, 754-55 (Tex. App.--Fort Worth 1996, pet. ref'd); Burger, 920 S.W.2d at 436. Therefore, we do not have jurisdiction to review appellant's allegations of Fourth Amendment violations, insufficiency of the evidence at the adjudication hearing, or his reasons for non-payment of his community supervision fees.

In point of error four, appellant complains that the trial court abused its discretion in imposing a ten year sentence. He argues "that he performed a substantial period of his probation term without violation of the law." We construe appellant's argument to mean that he should have been credited for some of the time that he was on community supervision. The sentence is within the range of punishment for the offense to which appellant pleaded guilty.

The trial court's assessment of punishment is a "proceeding" following adjudication, and accordingly, appellant's appeal of the assessment of punishment is not barred by article 42.12, section 5(b). See Tex. Code Crim. Proc. Ann. art. 42.12, §5(b) (Vernon Supp. 2000) ("After an adjudication of guilt, all proceedings, including assessment of punishment, pronouncement of sentence, granting of community supervision, and the defendant's appeal continue as if the adjudication of guilt had not been deferred. . . . "); see also Dunn v. State, 997 S.W.2d 885, 890 (Tex. App.--Waco 1999, pet. ref'd) (citing Keeling v. State, 929 S.W.2d 144, 145 (Tex. App.-- Amarillo 1996, no pet.); Rodriquez v. State, 972 S.W.2d 135, 138 (Tex. App.--Texarkana 1998) (noting that proceedings which may be appealed because they are not barred by article 42.12, section 5(b) include assessment of punishment, ineffective assistance at punishment hearing, and pronouncement of sentence), aff'd on other grounds, 992 S.W.2d 483, 484 (Tex. Crim. App. 1999).

However, appellant's general notice of appeal did not comply with Texas Rule of Appellate Procedure 25.2(b)(3) because it neither specified that the appeal was for a jurisdictional defect, that the appeal was raised by written motion and ruled on before trial, nor that the trial court had given permission to appeal. See Tex. R. App. P. 25.2(b)(3);⁽²⁾ see also Rodriquez, 972 S.W.2d at 140 (holding Rule 40(b)(1) [now Tex. R. App. P. 25.2(b)(3)] applies to a defendant's appeal from an adjudication of guilt after being placed on deferred adjudication). Thus, we do not have jurisdiction to consider appellant's appeal of the sentence imposed by the trial court.

Even if appellant's notice of appeal had complied with rule 25.2(b)(3), his complaint concerning assessment of punishment is without merit. "[O]nce a defendant is adjudicated guilty, the community supervision ordered as part of the deferred adjudication, has no effect upon any subsequent punishment the court may order." Keeling, 929 S.W.2d at 145 (citing McNew v. State, 608 S.W.2d 166, 176-77 (Tex. Crim. App. 1978)); Dunn, 997 S.W.2d at 892-93.

We have no authority to review either the adjudication of guilt or the imposition of sentence in this case. This appeal is therefore dismissed for want of jurisdiction.

____________________________________

LINDA REYNA YAÑEZ

Justice

Do not publish.

TEX. R. APP. P. 47.3.

Opinion delivered and filed

this the 1st day of June, 2000.

1. See Tex. Pen. Code Ann. § 22.02(a)(2) (Vernon 1994).

2. Texas Rule of Appellate Procedure 25.2(b)(3) provides that, when appealing from a guilty plea where punishment does not exceed the plea agreement, the defendant's notice of appeal must:

(A) specify that the appeal is for a jurisdictional defect;

(B) specify that the substance of the appeal was raised by written motion and ruled on before trial; or

(C) state that the trial court granted permission to appeal.

Tex. R. App. P. 25.2(b)(3).