Nam Hoai Tran v. The State of Texas--Appeal from 227th Judicial District Court of Bexar County

No. 04-99-00484-CR

Nam Hoai TRAN,

Appellant

v.

The STATE of Texas

Appellee

From the 227th Judicial District Court, Bexar County, Texas

Trial Court No. 94-CR-6891-B

Honorable Phil A. Kazen, Jr., Judge Presiding

Opinion by: Tom Rickhoff, Justice

Sitting: Phil Hardberger, Chief Justice

Tom Rickhoff, Justice

Sarah Duncan, Justice

Delivered and Filed: September 6, 2000

DISMISSED FOR LACK OF JURISDICTION

This is an appeal from the trial court's decision to proceed with an adjudication of Nam Hoai Tran's guilt. Because we lack jurisdiction to consider the merits of Tran's points of error, we dismiss the appeal.

FACTUAL AND PROCEDURAL HISTORY

Tran pled guilty to the offense of aggravated robbery, with recommended punishment at ten years confinement. The trial court accepted Tran's guilty plea, deferred adjudicating him, and placed him on deferred adjudication probation for ten years. Later, the State filed a motion to adjudicate guilt and revoke Tran's probation. After Tran pled true to the allegations contained in the State's motion, the trial court adjudicated him guilty, revoked his probation, and sentenced him to twenty years in prison.

ADJUDICATION OF GUILT

In points of error one and two, Tran asserts the trial court held the adjudication hearing and revoked his probation in violation of his State and Federal constitutional rights. In point of error three, Tran asserts there was insufficient evidence to support the revocation.

Tran contends he was not aware of the terms of his probation; therefore, a neutral and detached hearing body would be unable to accept a plea of true, and it would be impossible to obtain a written statement by the fact finder of the evidence relied upon and the reasons given for granting the motion to adjudicate. Tran concludes he did not have a meaningful hearing as required by Texas Code of Criminal Procedure Article 42.12, section 5(b), thus depriving him of his due process rights. Tran did not object to a lack of notice about the terms of his probation during the hearing on the State's motion to adjudicate, nor did he raise this complaint in his motion for new trial.

An appellant whose deferred adjudication probation has been revoked and who has been adjudicated guilty of the original charge may not raise on appeal contentions of error in the adjudication of guilt process. Tex. Code Crim. Proc. Ann. art. 42.12 5 (Vernon Supp. 2000); (1) see also Connolly v. State, 983 S.W.2d 738, 741 (Tex. Crim. App. 1999); Phynes v. State, 828 S.W.2d 1, 2 (Tex. Crim. App. 1992). Accordingly, we do not address points of error one, two, and three.CONSTITUTIONALITY OF ARTICLE 42.12

In points of error four and five, Tran asserts Article 42.12, section five, is unconstitutional under both the Texas and United States Constitutions because section 5 denies him his constitutional right to appeal the trial court's adjudication of guilt.

The United States Constitution does not require a state to provide appellate courts or a right to appellate review of criminal convictions. See Phynes, 828 S.W.2d at 2. A state may limit or even deny the right to appeal a criminal conviction. Id. Similarly, there is nothing in the Texas Constitution that guarantees the right to appeal a criminal conviction. Id. A party may appeal only that which the Legislature has authorized. Id. When a legislative enactment says an accused may not appeal a determination to adjudicate, there is no right to do so. Id. Therefore, because there is no constitutional right to appellate review of criminal convictions, we hold Article 42.12, section 5, to be constitutional.

Because Tran has no right to appeal from the trial court's determination to adjudicate his guilt, we dismiss his appeal for lack of jurisdiction.

Tom Rickhoff, Justice

DO NOT PUBLISH

1. 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. . . .

Tex. Code Crim. Proc. Ann. art. 42.12 5 (Vernon Supp. 2000).