David Howeth v. State

Becker v. State

COURT OF APPEALS

EIGHTH DISTRICT OF TEXAS

EL PASO, TEXAS

DAVID HOWETH, Appellant, v. THE STATE OF TEXAS, Appellee.

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No. 08-02-00480-CR Appeal from the 210th District Court   of El Paso County, Texas (TC# 20010D01649)

  M E M O R A N D U M O P I N I O N  

David Howeth appeals his conviction for the offense of robbery. Following adjudication of guilt, the court sentenced Appellant to imprisonment for a term of fifteen (15) years. We affirm the judgment of the trial court.

FACTUAL SUMMARY  

On April 27, 2001, Appellant waived his right to a jury trial and entered a negotiated plea of guilty. In accordance with the plea bargain, the court deferred adjudicating Appellant's guilt and placed him on deferred adjudication community supervision for eight (8) years. The State later moved to adjudicate Appellant's guilt. Following a contested hearing, the trial court determined that Appellant had violated the terms and conditions of community supervision and proceeded to adjudicate Appellant's guilt. The court assessed punishment at imprisonment for fifteen (15) years.

CONSTITUTIONALITY OF ART. 42.12, § 5(b)

In Points of Error One through Three, Appellant argues that the legislative limitation on appeal following adjudication of guilt is unconstitutional because it violates his right to due process and due course of law. 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).

Article 42.12, § 5(b)'s limitation on appeal does not violate Appellant's right to due process or due course of law because there is no constitutional right to appeal. See Phynes v. State, 828 S.W.2d 1, 2 (Tex. Crim. App. 1992); Garcia v. State, 45 S.W.3d 740, 742 (Tex. App.--Austin 2001, pet. ref'd); Mayers v. State, 735 S.W.2d 550, 552 (Tex. App.--Dallas 1987, no pet.); Pierce v. State, 636 S.W.2d 734, 735 (Tex.App.--Corpus Christi [13th Dist.] 1982, no pet.); Jones v. State, 630 S.W.2d 353, 354-55 (Tex. App.--Houston [14th Dist.] 1982, no pet.). Points of Error One through Three are overruled.

DECISION TO ADJUDICATE  

In Points of Error Four and Five, Appellant contends that the trial court erred by refusing to consider his necessity defense in connection with the allegations in the motion to adjudicate. Because this argument necessarily relates to the trial court's decision to adjudicate, Appellant may not raise it on appeal. See Tex. Code Crim. Proc. Ann. art. 42.12, § 5(b)(Vernon Supp. 2004). Consequently, we lack jurisdiction to address these complaints. Points of Error Four and Five are dismissed for want of jurisdiction.

ERROR DURING PUNISHMENT HEARING   

In Points of Error Six, Seven, and Eight, Appellant argues that his right to due process and due course of law was violated because the trial court refused to consider the defense of necessity during the punishment hearing. He also argues that the trial court abused its discretion. Contrary to Appellant's assertions, the record reflects that the court considered the evidence presented during the adjudication hearing, including the evidence which purportedly raised Appellant's necessity defense. Points of Error Six, Seven, and Eight are overruled. The judgment of the trial court is affirmed.

September 23, 2004

______________________________________ RICHARD BARAJAS, Chief Justice

Before Panel No. 2

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

(Do Not Publish)