Contreras, Miguel, Jr. AKA Miguel Contreras v. The State of Texas--Appeal from 243rd District Court of El Paso County

COURT OF APPEALS

EIGHTH DISTRICT OF TEXAS

EL PASO, TEXAS

MIGUEL CONTRERAS, JR., AKA MIGUEL CONTRERAS,

Appellant,

v.

THE STATE OF TEXAS,

Appellee.

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No. 08-01-00391-CR

Appeal from the

243rd District Court

of El Paso County, Texas

(TC# 69682)

OPINION ON STATE=S MOTION TO DISMISS

Before this Court is the State's motion to dismiss for want of jurisdiction in Appellant=s appeal from his adjudication of guilt and revocation of community service for aggravated sexual assault of a child. We grant the motion to dismiss.

I. SUMMARY OF THE EVIDENCE

Appellant pleaded guilty to the offense of aggravated sexual assault of a child. The court placed Appellant on ten (10) years= deferred adjudication probation. The State filed a motion to adjudicate Appellant=s guilt alleging that he had harbored a runaway. At the hearing on the motion to adjudicate, Appellant=s counsel informed the trial court that there was a question regarding Appellant=s mental competency. The hearing was continued and Appellant was examined by a psychologist. A competency trial commenced and the jury found Appellant to be competent.

The trial court then proceeded to hold a hearing on the State=s motion to adjudicate Appellant=s guilt on the original charge. Appellant entered a plea of Anot true by insanity.@ At the close of the hearing, the trial court found the allegation to be true. At the punishment stage hearing, two mental health experts testified for Appellant. At the close of hearing, the trial court remarked that it agreed with the jury=s determination that Appellant was competent. Appellant was then sentenced to life imprisonment.

We note at the outset that Appellant=s notice of appeal asserts that he was appealing the sentencing decision of the trial court. Appellant=s brief on appeal solely attacks the sufficiency of the evidence to support the jury=s determination of competence.

III. DISCUSSION

The State maintains that this Court lacks jurisdiction to entertain Appellant=s appeal because the competency determination was merely an ancillary component of the trial court=s decision to adjudicate his guilt which is not reviewable on direct appeal. For the reasons set forth below, we agree.

Tex. Code Crim. Proc. Ann. art. 42.12, ' 5(b) (Vernon Supp. 2003) which governs the adjudication of guilt upon violation of community supervision reads:

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. After an adjudication of guilt, all proceedings, including assessment of punishment, pronouncement of sentence, granting community supervision, and defendant=s appeal continue as if the adjudication of guilt had not been deferred.

When a defendant=s deferred adjudication community supervision has been revoked, and he has been adjudicated guilty, he may not raise appellate contentions of error in the entire adjudication of guilt process. Connolly v. State, 983 S.W.2d 738, 741 (Tex. Crim. App. 1999). In Connolly, the defendant moved to dismiss the State=s amended motion to revoke and proceed to judgment on the ground that the State had not used due diligence to apprehend him. Id. at 739. The Court of Criminal Appeals held that the question of due diligence was merely a part of its decision to revoke and no appeal was allowed from that decision. Id. at 741.

In Aristav. State, 2 S.W.3d 444, 445-46 (Tex. App.--San Antonio, 1999, no pet.), the Court of Appeals read Connelly to suggest that any decision not related to the trial court=s jurisdiction is intrinsically part of the court=s decision to adjudicate guilt and is not appealable. Id. The Court held that the failure of the trial court to hold a competency hearing prior to proceeding to an adjudication of guilt was a decision that could not be appealed. Id. at 446. The San Antonio Court of Appeals expressly declined to follow Gilbert v. State, 852 S.W.2d 623, 626 (Tex. App. Amarillo 1993, no pet.). In Gilbert, the Amarillo Court of Appeals held that due process required a probationer be competent before a trial court proceeds to an adjudication of guilt. The Court likened this to a probationer=s entitlement to counsel to contest an adjudication of guilt and held that it had jurisdiction to entertain the appeal.[1] Id. at 626.

In Marbutv. State, 76 S.W.3d 742, 747 (Tex. App.--Waco 2002, pet. ref=d), the Waco Court of Appeals held that competency proceedings pertain to the validity of the proceedings whereby guilt is assessed and thus do not pertain to the decision or determination to adjudicate guilt. Id. We do not perceive Connelly makes this distinction. We agree and dismiss this appeal for want of jurisdiction.

January 16, 2003

RICHARD BARAJAS, Chief Justice

Before Panel No. 3

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

(Do Not Publish)

[1] We note that in Phynes v. State, 828 S.W.2d 1, 2 (Tex. Crim. App. 1992), the Court of Criminal Appeals held that even if a defendant=s right to counsel was violated at an adjudication hearing, he could not use a direct appeal to seek redress. We also note that the Amarillo Court of Appeals rejected its holding in Gilbert in an unpublished opinion. Sanders v. State, 2001 WL 1217313 (Tex. App.--Amarillo, Oct. 11, 2001)(not designated for publication).