Tyrone Deshun Cox v. State

NO

NO. 12-04-00253-CR

                     IN THE COURT OF APPEALS

          TWELFTH COURT OF APPEALS DISTRICT

                                TYLER, TEXAS

TYRONE DESHUN COX,                               '                 APPEAL FROM THE 2ND

APPELLANT

V.                                                                         '                 JUDICIAL DISTRICT COURT OF

THE STATE OF TEXAS,

APPELLEE                                                       '                 CHEROKEE COUNTY, TEXAS

                                                     MEMORANDUM OPINION

In two issues, Appellant Tyrone Deshun Cox appeals his sentence of ten years of imprisonment for the second degree felony offense of aggravated assault with a deadly weapon.  We affirm in part and dismiss for want of jurisdiction in part.

Background

On February 2, 1999, Appellant was indicted for the offense of aggravated assault with a deadly weapon.  On July 29, Appellant pleaded Aguilty@ to the offense alleged in the indictment; however, the trial court deferred a finding of guilt and placed Appellant on deferred adjudication probation for a period of eight years.  On March 30, 2004, the State filed a AMotion to Adjudicate,@ alleging that Appellant violated the terms of his probation by 1) breaking into a coin operated machine, 2) failing to appear in court on a pending misdemeanor charge after being released on his own recognizance, 3) failing to pay probation fees, 4) failing to pay court costs, 5) failing to pay attorney=s fees, 6) failing to perform community service, 7) carrying a handgun on his person, and 8) possessing a usable quantity of marijuana.

On May 27, at the hearing on the State=s motion, the trial court adjudicated Appellant Aguilty@ of the offense of aggravated assault with a deadly weapon and sentenced him to ten years of imprisonment.  Appellant now challenges 1) the legal and factual sufficiency of the evidence supporting the trial court=s decision to move to a final adjudication of guilt and 2) the trial court=s consideration of a presentence investigation report (PSI) compiled for his 1999 plea hearing.

Analysis

In his first issue, Appellant argues that the evidence adduced at the hearing on the motion to adjudicate was legally and factually insufficient to support the trial court=s decision to revoke his probation and enter a Aguilty@ judgment against him.  The State contends that the evidence was legally and factually sufficient.

Article 42.12 of the Texas Code of Criminal Procedure governs the situation at issue.  See Cox v. State, 156 S.W.3d 599, 603 (Tex. App.BTyler 2004, pet. ref=d).  Section 5(b) of article 42.12 states as follows:

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.

Tex. Code Crim. Proc. Ann. art. 42.12, ' 5(b) (Vernon Supp. 2005) (emphasis added).  Appellant therefore cannot contest the sufficiency of the evidence related to the trial court=s decision to proceed with the adjudication of guilt.  See Connolly v. State, 983 S.W.2d 738, 741 (Tex. Crim. App. 1999); Cox, 156 S.W.3d at 603.  Accordingly, we lack jurisdiction to consider Appellant=s first issue.  See Cox, 156 S.W.3d at 603.

In his second issue, Appellant argues that the trial court Aerred in considering unsubstantiated evidence and facts not in evidence in assessment of [Appellant=s] sentence.@^[1]  Specifically, he argues that the trial court erred by considering a PSI compiled in 1999 for his original plea hearing that was not entered into evidence. 

We first note that as a prerequisite to presenting a complaint for appellate review, the record must show that the complaint was made to the trial court by a timely request, objection, or motion that stated the grounds for the ruling that the complaining party sought from the trial court with sufficient specificity to make the trial court aware of the complaint, unless the specific grounds were apparent from the context.  See Tex. R. App. P. 33.1(a)(1)(A).  Appellant does not direct us to any place in the record where he objected at the trial court level to consideration of the PSI because it had not been admitted into evidence.  Accordingly, nothing is presented for review.  Appellant=s second issue is overruled.

Conclusion

Having overruled Appellant=s second issue, we affirm the portion of the trial court=s judgment related thereto.  The remainder of this appeal is dismissed for want of jurisdiction.

 DIANE DEVASTO   

Justice

Opinion delivered December 21, 2005.

Panel consisted of Worthen, C.J., Griffith, J., and DeVasto, J.

                                                             (DO NOT PUBLISH)

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^[1] Article 42.12, '5(b) provides that A[a]fter an adjudication of guilt, all proceedings, including assessment of punishment...and defendant=s appeal continue as if the adjudication of guilt had not been deferred.@  Tex. Code Crim. Proc. Ann. art. 42.12, ' 5(b).  Thus, our consideration of Appellant=s arguments concerning his sentence is, for jurisdiction purposes, appropriate.