Jesus Albert Carbajal v. The State of Texas--Appeal from 35th District Court of Brown County

Opinion filed March 29, 2007

In The

Eleventh Court of Appeals

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   No. 11-06-00052-CR

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   JESUS ALBERT CARBAJAL, Appellant

V.

STATE OF TEXAS, Appellee

On Appeal from the 35th District Court

Brown County, Texas

Trial Court Cause No. CR17192

O P I N I O N

This is an appeal from a judgment adjudicating guilt. Jesus Albert Carbajal originally entered a plea of no contest to burglary of a habitation. Pursuant to the plea bargain agreement, the trial court deferred the adjudication of Carbajal=s guilt, placed him on community supervision for ten years, and assessed a $3,500 fine. After a hearing on the State=s motion to adjudicate, the trial court found that appellant had violated the terms and conditions of his community supervision, revoked his community supervision, adjudicated appellant=s guilt, and sentenced him to confinement for forty years. We affirm.

Issues on Appeal

Appellant has briefed five issues on appeal. In his first two issues, appellant argues that the trial court erred in failing to grant his motion for mistrial during the hearing on the motion to adjudicate. In the third and fourth issues, appellant contends that the trial court erred in failing to grant his motion to recuse the trial judge, recess the hearing, and have a different trial judge appointed to hear the motion to adjudicate. In his final issue, appellant argues that the trial court erred in failing to exclude inadmissible evidence during the punishment phase.

Complaints Relating to the Adjudication Hearing

In his first four issues, appellant is challenging rulings that occurred during the hearing on the State=s motion to adjudicate. These complaints are not properly before this court. Tex. Code Crim. Proc. Ann. art. 42.12, ' 5(b) (Vernon 2006) precludes an appeal challenging the trial court=s determination to proceed with the adjudication of guilt. Davisv. State, 195 S.W.3d 708, 709 (Tex. Crim. App. 2006); Hargesheimer v. State, 182 S.W.3d 906, 909 (Tex. Crim. App. 2006); Hogans v. State, 176 S.W.3d 829, 831 (Tex. Crim. App. 2005); Phynes v. State, 828 S.W.2d 1, 2 (Tex. Crim. App. 1992); Olowosuko v. State, 826 S.W.2d 940, 942 (Tex. Crim. App. 1992). Therefore, these issues are dismissed for want of jurisdiction.

Complaint as to Evidence Admitted at the Punishment Phase

At the hearing on the motion to adjudicate, appellant testified that two of his brothers, as well as his parents, had shots fired at their homes. Appellant also testified concerning the possible involvement of the victim of the assault allegation in the motion to adjudicate in these shootings of the homes of his relatives and concerning charges pending against his brothers arising out of the situation. At the punishment hearing, the State called Brown County Deputy Sheriff Tony Aaron and offered his testimony concerning his investigation of these incidents in an attempt to rebut appellant=s statements.

Appellant contends that Deputy Aaron=s testimony was irrelevant and should have been excluded. Article 42.12, section 5(b) provides that, after the adjudication of guilt, the case proceeds as if the adjudication of guilt was never deferred. Therefore, this fifth issue challenging the admission of testimony at the punishment phase may be raised on appeal and is properly before this court.

We disagree with appellant=s arguments that Deputy Aaron=s testimony was irrelevant and inadmissible. Deputy Aaron testified as to events that appellant raised first, and the testimony was relevant to rebut appellant=s testimony. Also, appellant states in his brief that the incidents involved in Deputy Aaron=s testimony surrounded his assault of the victim. Appellant argues that, because the trial court had already determined the allegation that appellant assaulted the victim to be true, no further testimony was relevant. We disagree and find that the trial court did not err. The fifth issue is overruled.

This Court=s Ruling

The judgment of the trial court is affirmed.

TERRY McCALL

JUSTICE

March 29, 2007

Do not publish. See Tex. R. App. P. 47.2(b).

Panel consists of: Wright, C.J.,

McCall, J., and Strange, J.