Vincent Felipe Martinez v. State

COURT OF APPEALS

COURT OF APPEALS

EIGHTH DISTRICT OF TEXAS

EL PASO, TEXAS

VICENTE FELIPE MARTINEZ,                          )

                                                                              )     No.  08-05-00254-CR

Appellant,                          )

                                                                              )                    Appeal from the

v.                                                                           )

                                                                              )     265th District Court

THE STATE OF TEXAS,                                     )

                                                                              )     of Dallas County, Texas

Appellee.                           )

                                                                              )     (TC# F-0315036-KR)

                                                                              )

O P I N I O N

Vincent Felipe Martinez appeals from an adjudication of guilt for the offense of aggravated sexual assault of a child.  Appellant contends the trial court erred in not holding sua sponte a hearing on his competency during either the adjudication or sentencing phases of the proceedings.  We affirm.

In 2003, Appellant was indicted for the offense of aggravated sexual assault of a child.  Appellant waived his right to a trial by jury and pled guilty to the offense.  Pursuant to a plea bargain, the trial court deferred a finding of guilt and placed Appellant on community supervision for a term of 5 years and assessed a fine of $3,000.  In April of 2005, the State filed a motion to adjudicate guilt alleging Appellant had violated certain terms of his community supervision by: (1) failing to register as a sex-offender; (2) failing to report to his probation officer; (3) failing to pay a probation fee; and (4) failing to complete a sex offender clinical assessment.^[1]

At a hearing on the State=s motion to adjudicate guilt, Appellant entered a plea of true.  The trial court admitted into evidence, Appellant=s signed, written voluntary plea of true and stipulation of evidence.  After hearing testimony from Appellant=s witnesses, the trial court found the allegations contained in the State=s motion to be true and proceeded to an adjudication of guilt.  The trial court found Appellant guilty of the offense of sexual assault of a child and sentenced him to twenty-five years in the Institutional Division of the Texas Department of Criminal Justice.  The trial court certified Appellant=s right of appeal and he filed his notice of appeal.

In Issue One, Appellant complains the trial court erred in not holding sua sponte a hearing on his competency during the sentencing phase of his case.  As support for his proposition, Appellant directs our attention to evidence presented during the adjudication stage of the proceedings.  The State argues that Appellant has failed to preserve error. We agree.

Article 42.12, section 5(b) of the Code of Criminal Procedure expressly allows an appeal from all proceedings following an adjudication of guilt.  Olowosuko v. State, 826 S.W.2d 940, 942 (Tex.Crim.App. 1992).  Thus, a defendant may appeal aspects related to the punishment phase of his case.  Hogans v. State, 176 S.W.3d 829, 833 (Tex.Crim.App. 2005), citing Kirtley v. State, 56 S.W.3d 48, 51 (Tex.Crim.App. 2001).  However, an appellate court does not have jurisdiction to consider an issue simply because it is framed as a punishment issue.  See Hogans, 176 S.W.3d at 834.  Assuming competency is an appealable punishment issue in this case, Appellant failed to raise this issue in the trial court by either objection, request, or motion during or subsequent to, the punishment phase of the proceedings.

It is well established that in order to preserve error for appellate review, the complaining party must first present his complaint to the trial court by a timely, specific objection, request, or motion at the earliest opportunity, and obtain an adverse ruling.  See Tex.R.App.P. 33.1; Vidaurri v. State, 49 S.W.3d 880, 886 (Tex.Crim.App. 2001); Johnson v. State, 975 S.W.2d 644, 653 (Tex.App.‑-El Paso 1998, pet. ref=d).  At the conclusion of the hearing on the State=s motion to adjudicate guilt, the trial court found the allegations of the State to be true.  The trial court adjudicated Appellant=s guilt and orally pronounced sentence.  Appellant=s trial counsel did not object at any point during the punishment phase of the proceedings.  After sentencing, the trial court asked Appellant=s trial counsel A[i]s there any legal reason why your client should not be sentenced at this time?@ Appellant=s trial counsel replied A[n]o, Your Honor.@  In addition, trial counsel did not raise Appellant=s competency in a post-sentencing motion.

Because Appellant did not bring his complaint to the trial court=s attention by timely objection, request, or motion, he has not preserved this complaint for our review.  See Hergert v. State, -- S.W.3d --, 2006 WL 1779448, at *4 (Tex.App.‑-Beaumont June 28, 2006, no pet.)(defendant at adjudication hearing failed to properly preserve error by not objecting to sentence either at time of sentencing or in post-trial motion); Johnson v. State, 939 S.W.2d 808, 809-10 (Tex.App.‑-Fort Worth 1997, no pet.)(defendant waived error by affirmatively declining opportunity to object and not filing motion for new trial).  Accordingly, Issue One is overruled. 

In Issue Two, Appellant complains the trial court erred in not holding sua sponte a hearing on his competency during the adjudication proceedings.  The State argues this Court is without jurisdiction to review Appellant=s complaint.  Again, we agree with the State.

In a deferred‑adjudication case, if the trial court adjudicates guilt because of a violation of the terms of community supervision, that decision is not appealable.  Tex.Code Crim.Proc.Ann. art. 42.12, ' 5(b)(Vernon Supp. 2006); Hogans, 176 S.W.3d at 832. This Court plainly has no jurisdiction to consider claims relating to the trial court=s determination to proceed with an adjudication of guilt, including those involving competency at the time of the adjudication hearing.  See Hogans, 176 S.W.3d at 832; see, e.g., Durgan v. State, 192 S.W.3d 884, 887 (Tex.App.‑-Beaumont 2006, pet. filed); Davis v. State, 141 S.W.3d 694, 697‑98 (Tex.App.--Texarkana 2004, pet. ref=d); Bearden v. State, 147 S.W.3d 661, 662 (Tex.App.--Amarillo 2004, no pet.); Henderson v. State, 132 S.W.3d 112, 115 (Tex.App.--Dallas 2004, no pet.); Nava v. State, 110 S.W.3d 491, 493 (Tex.App.--Eastland 2003, no pet.); Arista v. State, 2 S.W.3d 444, 445‑46 (Tex.App.--San Antonio 1999, no pet.); Contreras v. State, No. 08‑01‑00391‑CR, 2003 WL 125448, at *1-*2 (Tex.App.‑-El Paso, Jan. 16, 2003, no pet.)(not designated for publication)(dismissing appeal from competency determination in context of adjudication proceedings for lack of jurisdiction).

Because Appellant raises a claim of purported error in the adjudication of guilt determination, we must dismiss his issue without reaching the merits.  Hogans, 176 S.W.3d at 832.  Therefore, we dismiss Issue Two as we have no jurisdiction to consider it.

Accordingly, we affirm the trial court=s judgment.

August 31, 2006

DAVID WELLINGTON CHEW, Justice

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

(Do Not Publish)

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^[1] The State later withdrew the allegation that Appellant failed to register as a sex-offender.