LARRY HARRIS v. THE STATE OF TEXAS--Appeal from 377th District Court of Victoria County

NUMBER 13-01-645-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

  CORPUS CHRISTI  B  EDINBURG

LARRY HARRIS, Appellant,

v.

THE STATE OF TEXAS, Appellee.

On appeal from the 377th District Court

of Victoria County, Texas.

    O P I N I O N

Before Justices Dorsey, Rodriguez, and Baird[1]

Opinion by Justice Baird

Appellant was charged by indictment with the offense of sexual assault. Appellant pled guilty to the charged offense. Although sufficient evidence was admitted to establish appellant=s guilt, the trial court deferred an adjudication of guilt and placed appellant on community supervision for a period of ten years. Subsequently, the State filed a motion to adjudicate guilt. Following a hearing on the State=s motion, the trial judge found several of the allegations true, revoked appellant=s community supervision, and assessed punishment at eighteen years confinement in the Texas Department of Criminal Justice--Institutional Division. We will dismiss for want of jurisdiction.

A party may appeal only that which the Legislature has authorized. Galitz v. State, 617 S.W.2d 949, 951 (Tex. Crim. App.1981). The Legislature has provided that a defendant who pleads guilty, and is placed on deferred adjudication may raise issues relating to the original plea proceeding only in an appeal taken when the trial court first orders deferred adjudication and imposes community supervision. Manuel v. State, 994 S.W.2d 658, 661 62 (Tex. Crim. App.1999). If the defendant does not exercise his right to appeal at that time, no appeal may be taken from a subsequent determination to proceed with an adjudication of guilt. Tex. Code Crim. Proc. Ann. art. 42.12, ' 5(b) (Vernon Supp. 2002); Williams v. State, 592 S.W.2d 931, 932-33 (Tex. Crim. App. 1979) (decision to proceed with an adjudication of guilt is one of absolute nonreviewable discretion).

Appellant contends this provision is unconstitutional. However, appellant concedes there is precedent adverse to his position. Phynesv. State, 828 S.W.2d 1, 3-4 (Tex. Crim. App. 1992) (stating that even if appellant's right to counsel had been violated, he could not use direct appeal as the vehicle by which to seek redress). This court, as an intermediate appellate court, is bound to follow the law as declared by the state=s highest courts. Swilleyv. McCain, 374 S.W.2d 871, 875 (Tex. 1964). The Court of Criminal Appeals is the highest court on matters of criminal law, and when it has deliberately and unequivocally interpreted the law in a criminal matter, we must adhere to its interpretation. Southwick v. State, 701 S.W.2d 927, 929 (Tex. App.CHouston [1st Dist.] 1985, no pet.). Therefore, we must reject appellant=s constitutional challenge to article 42.12, section 5(b). Garza v. State, 839 S.W.2d 131, 132 (Tex. App.BCorpus Christi 1992, no pet.).

Furthermore, because the remaining point of error arises from the trial judge's decision to proceed with an adjudication of guilt on the underlying charge, we may not address it.

This appeal is dismissed for want of jurisdiction.

CHARLES F. BAIRD

Justice

Do not publish.

Tex. R. App. P. 47.3.

Opinion delivered and filed this

the 2nd day of May, 2002.

[1]Former Court of Criminal Appeals Judge Charles F. Baird assigned to this Court by the Chief Justice of the Supreme Court of Texas pursuant to Tex.Gov=t Code Ann. '74.003 (Vernon 1998).