Kenneth Wayne Brookshire, Jr. v. The State of Texas--Appeal from 252nd District Court of Jefferson County

No. 04-02-00032-CR
Kenneth Wayne BROOKSHIRE, Jr.,
Appellant
v.
The STATE of Texas,
Appellee
From the 252nd District Court of Jefferson County, Texas
Trial Court No. 82584
Honorable Leonard Giblin, Judge Presiding

Opinion by: Paul W. Green, Justice

Sitting: Catherine Stone, Justice

Paul W. Green, Justice

Sarah B. Duncan, Justice

Delivered and Filed: April 30, 2003

AFFIRMED

Appellant Kenneth Wayne Brookshire, Jr., was charged with the offense of felony theft from a person. In accordance with the terms of a plea bargain agreement, the trial court deferred a finding of guilt, placed Brookshire on three years of community supervision, and assessed a fine of $500. The State subsequently filed a motion to revoke Brookshire's community supervision based on his violation of fifteen separate conditions of his probation. Although Brookshire denied several of the violations alleged, he pled true to nine of the infractions. The court granted the motion to revoke Brookshire's probation, adjudicating him guilty and sentencing him to a term of two years imprisonment with credit for timed served. Brookshire now appeals, citing two issues.

In his first issue, Brookshire contends the sentence is excessive and constitutes cruel and unusual punishment in violation of the Eighth Amendment. U.S. Const. am. VIII. In his second issue, Brookshire argues the evidence presented to the trial court is factually insufficient to support the revocation of his community supervision. Before we can reach the merits of Brookshire's contentions, we must first decide whether these issues can be raised in a direct appeal.

Brookshire's contentions attack the trial court's determination to proceed with an adjudication of guilt. The trial court's decision to proceed with an adjudication of guilt is one of absolute discretion and is not reviewable on appeal. See Tex. Code Crim. Proc. art. 42.12 5(b) (Vernon Supp. 2003); Olowosuko v. State, 826 S.W.2d 940, 942 (Tex. Crim. App. 1992). There may be no appeal from the court's determination to proceed with an adjudication of guilt on the original charge following a violation of a condition of deferred adjudication probation. Tex. Code Crim. Proc. Ann. art. 42.12 5(b) (Vernon Supp. 2003); see Olowosuko, 826 S.W.2d at 942; Elizondo v. State, 861 S.W.2d 294, 295-96 (Tex. App.--San Antonio 1993, no writ). Therefore, Brookshire's issues are not reviewable.

Because we do not have jurisdiction to consider Brookshire's complaint, we dismiss this appeal for lack of jurisdiction.

Paul W. Green, Justice

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