Alberto Isassi v. The State of Texas--Appeal from 210th District Court of El Paso County

COURT OF APPEALS

EIGHTH DISTRICT OF TEXAS

EL PASO, TEXAS

Appellant,

v.

THE STATE OF TEXAS,

Appellee.

No. 08-02-00338-CR

Appeal from the

210th District Court

of El Paso County, Texas

(TC# 20010D02038)

This is an attempted appeal from a judgment of conviction for the offense of possession of cocaine. 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 June 27, 2002, the court granted the State's motion to revoke Appellant's deferred adjudication and sentenced him to five (5) years' imprisonment. Appellant filed his initial notice of appeal on July 30, 2002. In this notice, Appellant stated that he was appealing the denial of his Request for Findings of Fact and Conclusions of Law. On August 1, 2002, this Court notified Appellant that it appeared that the notice of appeal was not timely filed, and the Court gave notice of our intent to dismiss the appeal for want of jurisdiction unless any party could show grounds for continuing the appeal.

On August 6, 2002, Appellant filed an Amended Notice of Appeal wherein he stated that he filed a "Motion Renewing Motion to Dismiss and Acquittal" on June 27, 2002. The amended notice of appeal incorporates by that motion by reference and states that the appeal is taken from the matters addressed in that motion. The motion alleges that the court erred in admitting hearsay evidence at the hearing on the State's motion to adjudicate guilt.

This Court notified Appellant that it would consider Appellant's "Motion Renewing Motion to Dismiss and Acquittal" as a motion for new trial; thus, the appeal was timely perfected. However, this Court indicated that the appeal appeared to be taken from the trial court's decision to adjudicate guilt, and this Court had no jurisdiction to hear the appeal. We requested a response from Appellant. No response was received.

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 . . .").

In the present case, Appellant was attempting to appeal the Court's failure to provide findings of fact and conclusions of law regarding the revocation of Appellant's deferred adjudication community supervision, and, possibly, the admission of some hearsay evidence. When the trial court revokes a defendant's probation, due process requires specific written findings of fact where a defendant requests findings of fact be made. See Joseph v. State, 3 S.W.3d 627, 639 (Tex. App.--Houston [14th Dist.] 1999, no pet.). A trial court's failure to comply with a defendant's request for findings in support of revocation may require reversal, particularly where the court's failure to make findings of fact has impeded appellate review of the court's decision. See Ford v. State, 488 S.W.2d 793, 795 (Tex. Crim. App. 1972); Joseph, 3 S.W.3d at 639.

However, neither the Ford case nor the Joseph case involved the adjudication of guilt with regard to community supervision. See Ford, 3 S.W.3d at 794; Joseph, 3 S.W.3d at 632. Appellant cannot appeal the court's decision to proceed to an adjudication of guilt; therefore, there has been no impediment to appellate review as such review is not permissible. Appellant's contentions concerning the admission of hearsay evidence are likewise not appealable. Accordingly, we dismiss the appeal for want of jurisdiction.

July 8, 2003

RICHARD BARAJAS, Chief Justice

Before Panel No. 4

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

(Do Not Publish)