Opinion
No. 08-03-00008-CR
July 10, 2003 (Do Not Publish)
Appeal from the 292nd District Court of Dallas County, Texas (TC# F01-59379-LV).
Before Panel No. 2, BARAJAS, C.J., McCLURE, and CHEW, JJ.
MEMORANDUM OPINION
This is an attempted appeal from a judgment of conviction for the offense of burglary of habitation. The issue before us is whether we have jurisdiction to consider Appellant's appeal. We conclude that we do not and dismiss the attempted appeal for want of jurisdiction. On February 8, 2002, Appellant entered a plea of guilty of the offense of burglary of a habitation, and pursuant to a plea bargain, the court assessed punishment at three (3) years' deferred adjudication community supervision and a fine of $500.00. On April 24, 2002, the State filed a motion to proceed with adjudication of guilt, alleging the commission of a new offense. On November 22, 2002, Appellant filed a pre-trial motion to quash the State's motion to proceed to adjudication of guilt. The motion to quash alleged that the State's motion was fundamentally defective in that it failed to state all of the essential elements of the alleged offense. At the hearing on the motion, the court overruled Appellant's motion to quash. After hearing the evidence and testimony of both parties, the court found the State's allegation to be true and the court adjudged Appellant guilty of the burglary of habitation offense. Appellant was sentenced to twelve years imprisonment. Appellant's sole issue on appeal is that the trial court erred in denying his motion to quash the State's motion to proceed to adjudication of guilt. 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. 2003). It is well established that a defendant whose deferred adjudication probation has been revoked and who has been adjudicated guilty of the original charge, may not raise on appeal contentions of error in the adjudication of guilt process. See, e.g., Connolly v. State, 983 S.W.2d 738, 740-41 (Tex.Crim.App. 1999) (reiterating what it characterized as the plain meaning of Article 42.12, Section 5(b) and holding that defendant was not permitted to appeal whether State utilized due diligence); Olowosuko v. State, 826 S.W.2d 940, 942 (Tex.Crim.App. 1992) (following adjudication of guilt, defendant not permitted to raise points of error related to alleged vagueness of conditions of probation or sufficiency of motion to revoke); Phynes v. State, 828 S.W.2d 1, 2 (Tex.Crim.App. 1992) (defendant not permitted to raise point of error concerning whether his right to counsel had been violated at adjudication hearing); Wright v. State, 592 S.W.2d 604, 606 (Tex.Crim.App. 1980) (holding that under the predecessor to Article 42.12, Section 5(b), "no appeal may be taken from the hearing in which the trial court determines to proceed with an adjudication of guilt on the original charge"); Williams v. State, 592 S.W.2d 931, 932-33 (Tex.Crim.App. 1979) ("the trial court's decision to proceed with an adjudication of guilt, is one of absolute discretion and [is] not reviewable . . ."). As stated, Appellant's sole contention on appeal is that the court erred in overruling his motion to quash the State's motion to proceed to adjudication of guilt. Appellant asserts that this Court has jurisdiction to hear this contention on appeal. Appellant cites Moore v. State, 11 S.W.3d 495, 499 (Tex.App.-Houston [14th Dist.] 2000, no pet.) in support of this proposition. In Moore, the Court of Appeals stated various due process considerations that were pertinent to revocation of probation proceedings. The Court further stated that a motion to revoke community supervision need not meet the particularities of an indictment, information, or complaint. Id. We note also that the Moore case involved a motion to revoke regular community supervision-not deferred adjudication community supervision. Id. at 498. In the present case, the trial court necessarily determined the adequacy of the State's allegations in determining whether to proceed to adjudication of Appellant's guilt. Thus, we conclude we lack jurisdiction to consider Appellant's sole issue on appeal. See Olowosuko, 826 S.W.2d at 942. We dismiss the appeal for want of jurisdiction.