Jo Nell Hastings v. The State of Texas--Appeal from County Court at Law No 1 of Bexar County

MEMORANDUM OPINION
No. 04-05-00915-CR

Jo Nell HASTINGS,

Appellant

v.

The STATE of Texas ,

Appellee

From the County Court at Law No. 1, Bexar County, Texas

Trial Court No. 626188

Honorable Al Alonso , Judge Presiding

Opinion by: Catherine Stone , Justice

Sitting: Alma L. L pez , Chief Justice

Catherine Stone , Justice

Sarah B. Duncan , Justice

Delivered and Filed: September 13, 2006

AFFIRMED

Jo Nell Hastings appeals the trial court's order which revoked community supervision, adjudicated guilt, and sentenced Hastings to confinement for ninety days. We affirm the trial court's judgment.

Background

Hastings was charged with theft $20 to $500 and pled no contest. The trial court deferred adjudication and placed Hastings on probation for two years. Two of the seventeen conditions of probation were: 1) Hastings must not commit another crime; and 12) restitution must be paid in an amount of $4,891.64. After nearly two years of probation elapsed, the court extended Hastings' probation period for six additional months. Shortly thereafter, the State filed its first motion to adjudicate guilt and revoke probation based upon a violation of conditions one, twelve, and several others. Although the court did not revoke probation, it did extend Hastings' probation for another six months.

Before Hastings completed probation, the State filed its second motion to adjudicate guilt and revoke probation; however, this motion was based only on a violation of condition twelve, failing to pay restitution. A capias for arrest was issued, but Hastings was not apprehended and brought before the court for a hearing until nearly four years had passed.

At the revocation hearing, the trial court asked, "What's this lady allegedly done?" The State responded that she violated "Condition 1, theft by check in Caldwell County." At this point, Hastings pled true to a violation of condition one. Subsequently, the trial court revoked probation and sentenced Hastings to ninety days in jail and a $100 fine.

On appeal, Hastings brings two issues: 1) the trial court was without authority to revoke probation based on the violation of a condition which was not in the State's motion to revoke; and 2) the trial court erred in revoking probation because the State failed to exercise due diligence in bringing Hastings before a trial court for a revocation hearing.

These issues concern the trial court's decision to proceed with an adjudication of guilt. Under article 42.12 section 5(b) of the Code of Criminal Procedure, Hastings cannot raise these issues on appeal. See Tex. Crim. Proc. Code Ann. 42.12 (Vernon Supp. 2006); Connolly v. State, 983 S.W.2d 738, 741 (Tex. Crim. App. 1999); Roberts v. State, 141 S.W.3d 685, 685-86 (Tex. App.-Waco 2004, pet. ref'd). Accordingly, we overrule Hastings' four points on appeal and affirm the trial court's judgment. (1)

Catherine Stone , Justice

Do Not Publish

1. Appellant is not precluded from seeking a writ of habeas corpus. See Stafford v. State, 63 S.W.3d 502, 510 (Tex. App.-Texarkana 2001, pet. ref'd) (citing Tex. Crim. Proc. Code Ann. 11.07 (Vernon 2005)).