Isassi, Luis v. The State of Texas--Appeal from 41st District Court of El Paso County

COURT OF APPEALS

EIGHTH DISTRICT OF TEXAS

EL PASO, TEXAS

LUIS ISASSI,

Appellant,

v.

THE STATE OF TEXAS,

Appellee.

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No. 08-02-00051-CR

Appeal from the

41st District Court

of El Paso County, Texas

(TC# 960D06028)

OPINION ON MOTION TO DISMISS

Before this Court is the State=s motion to dismiss for want of jurisdiction in Isassi=s appeal from his adjudication of guilt and revocation of community service for possession of a controlled substance. We grant the motion.

The original indictment was on September 18, 1996, for an offense in July of that year. On January 10, 1997, appellant entered a negotiated plea of guilty to the charge and, pursuant to the plea agreement, the trial court deferred adjudication of Isassi=s guilt and placed him on six years= deferred adjudication probation, subject to conditions. The State filed a Motion to Adjudicate Guilt on February 9, 2001, alleging that Isassi violated several terms of his deferred adjudication probation by committing another criminal offense, by not avoiding injurious or vicious habits, and by failing to follow the curfew set by the probation. On December 13, 2001, the trial court heard the motion and, after hearing evidence and argument, determined that appellant had violated the curfew condition of his probation as alleged by the State and proceeded to adjudicate appellant guilty of the prior possession charge. Isassi was then sentenced to six years= confinement. Appellant now presents this Court with three points of error. First, he claims that the trial court abused its discretion by adjudicating guilt and imposing sentence because the original judgment and the terms and conditions of probation were not entered into evidence. Second, appellant claims that the trial court abused its discretion by revoking probation because there was no offer of proof that appellant was the same individual convicted and placed on probation. Appellant=s third point of error asserts that the trial court abused its discretion by not including in the judgment adjudicating guilt a recitation of the grounds upon which the appellant was adjudicated guilty and the probation was revoked.

This Court of Appeals may hear appeals only if the Legislature has so authorized. Olowosuko v. State, 826 S.W.2d 940, 941 (Tex. Crim. App. 1992) (citing Galitz v. State, 617 S.W.2d 949, 951 (Tex. Crim. App. 1981)). In relevant part, the Texas Code of Criminal Procedure provides:

On violation of a condition of community supervision imposed under Subsection (a) of this section . . . [t]he 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 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. 2002). The Court of Appeals must sort through the rulings of the trial court throughout the course of a deferred adjudication proceeding to determine whether review is authorized by the Legislature or not. Olowosuko, 826 S.W.2d at 941. Here, Isassi brings points of error relevant to the trial court=s decision in the hearing to proceed with an adjudication of guilt; therefore, this Court is expressly prohibited from hearing the appeal.

Conclusion

The State=s Motion to Dismiss Appeal for Want of Jurisdiction is granted. The appeal is dismissed.

SUSAN LARSEN, Justice

October 31, 2002

Before Panel No. 1

Larsen, McClure, and Chew, JJ.

(Do Not Publish)