ROBERT ADRIAN HINOJOSA v. THE STATE OF TEXAS--Appeal from 103rd District Court of Cameron County

NUMBER 13-01-466-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI

ROBERT ADRIAN HINOJOSA, Appellant,

v.

THE STATE OF TEXAS, Appellee.

On appeal from the 103rd District Court

of Cameron County, Texas.

O P I N I O N

Before Justices Dorsey, Hinojosa, and Castillo

Opinion by Justice Castillo

This is an appeal of the revocation of appellant Robert Adrian Hinojosa=s deferred adjudication community supervision. Hinojosa pled guilty, without a plea bargain, to the offense of burglary of a habitation[1] and was placed on five years deferred adjudication in March of 1996. A motion to revoke probation and adjudicate guilt was later filed and, at the hearing on the motion, the trial court adjudicated Hinojosa=s guilt and sentenced him to three years confinement in the penitentiary.[2] In his first issue, Hinojosa complains that he did not enter a plea of true to the motion to adjudicate and the trial court erred in not entering a plea of Anot true@ on his behalf. In his second, third, and fourth issues, Hinojosa argues that without a plea of true on the part of appellant, the evidence was legally and factually insufficient to support the trial court=s decision to adjudicate. In his fifth and final issue on appeal, Hinojosa asserts that the trial court abused its discretion in setting aside the deferred adjudication order and finding him guilty because: a)@[a]ppellant=s plea amounted to no evidence@; b) the decision of the trial court was Aagainst the great weight of the countervailing evidence@; c) revocation of probation and imprisonment for failure to pay restitution and a fine violate due process absent a finding of either willful refusal or that alternative forms of punishment are not adequate as required by Bearden v. Georgia, 461 U.S. 660 (1983); and d) the trial court failed to make an inquiry as to the defendant=s ability to pay before revoking probation. We affirm.

Analysis

As this case arises out of a trial court=s decision to adjudicate guilt following the placing of appellant on deferred adjudication, the first question that confronts this court is the one of our own jurisdiction to review the claims before us. See Tex. Code Crim. Proc. Ann. art. 42.12, '5b (Vernon Supp. 2002).[3]

Appellant=s complaints as to the sufficiency of the evidence, raised in his enumerated issues number two, three, and four, are clearly attacks on the trial court=s decision to adjudicate and thus are statutorily barred from appellate review. Tex. Code Crim. Proc. Ann. art. 42.12,'5b (Vernon Supp. 2002). A trial court=s decision to proceed with an adjudication of guilt is one of absolute discretion and is not reviewable. Williams v. State, 592 S.W.2d 931, 932-33 (Tex. Crim. App. 1979) (holding that an appellant cannot argue on appeal that the evidence adduced at the revocation hearing was insufficient to prove the allegations in the State's motion to adjudicate). It is well settled that no appeal may be taken of a trial court=s determination to adjudicate guilt. Tex. Code Crim. Proc. Ann. art. 42.12, '5(b)(Vernon Supp. 2002); Phynes v. State, 828 S.W.2d 1, 2 (Tex. Crim. App. 1992). We thus have no jurisdiction to consider appellant=s issues two, three and four.

Similarly, appellant=s assertion in his first issue that he never entered a plea of true and the trial court improperly entered a plea of true on his behalf, goes to the question of error in the adjudication hearing process and is likewise not reviewable. Connolly v. State, 983 S.W.2d 738, 741 (Tex. Crim. App. 1999)(holding that an appellant whose deferred adjudication has been revoked and who has been adjudicated guilty Amay not raise on appeal contentions of error in the adjudication of guilt process,@ not just in the decision to adjudicate)(emphasis added).[4] We therefore likewise have no jurisdiction to consider appellant=s first issue.

Appellant=s final issue claims that the trial court abused its discretion in revoking his deferred adjudication probation and sentencing him to the penitentiary. He subdivides his issue into four complaints. The first two complaints, subissues AA@ and AB,@ that the trial court abused its discretion because appellant=s Aplea amounted to no evidence@ and even if it was evidence, the decision was Aagainst the great weight of the countervailing evidence,@ mirror his first two issues on appeal and are attempts to contest the trial court=s decision to proceed with the adjudication of guilt. As noted previously, we are without jurisdiction to consider such contentions. See Tex. Code Crim. Proc. Ann. art. 42.12, '5b (Vernon Supp. 2002). Appellant=s sub-issue AD,@ complaining of the trial court=s action in revoking appellant=s deferred adjudication without inquiring as to his ability to pay, is an attack on the trial court=s decision to adjudicate and the process of adjudication and hence likewise not reviewable on appeal. Id.; Connolly, 983 S.W.2d at 741.

Appellant=s third sub-issue, designated as AC,@ challenges both the trial court=s decision to revoke the deferred adjudication and the trial court=s decision to enter a sentence of imprisonment, claiming that the same were violations of due process. While the challenge to the trial court=s decision to adjudicate is unreviewable under the bar of article 42.12, '5b, we may consider the challenge to the trial court=s actions after a finding of guilt. Tex. Code Crim. Proc. Ann. art. 42.12, '5b (Vernon Supp. 2002)(A[a]fter an adjudication of guilt, all proceedings, including assessment of punishment, pronouncement of sentence, granting of community supervision, and defendant=s appeal continue as if the adjudication of guilt had not been deferred.@); Issa v. State, 826 S.W.2d 159, 161(Tex. Crim. App. 1992)(holding a defendant does have a limited right to challenge errors made following a determination to adjudicate).

Appellant intermingles his arguments as to the trial court=s error in adjudicating his guilt (which we may not review) and the trial court=s decision to imprison him (which we may review), under the general argument that the trial court erred in Arevoking Appellant=s community supervision, adjudicating him guilty, and sentencing him to the penitentiary.@ Appellant argues that Bearden requires the trial court to make two findings, the first being a finding of willful refusal to pay, prior to revoking probation.[5] However, such a finding would clearly go to the question of a trial court=s decision to adjudicate as the question of willful refusal to pay simply parallels the existing requirement in Texas that the State must prove that Aan alleged failure to pay fees, costs, and the like was intentional@ in order to support a finding of Atrue@ in a motion to revoke. Stanfield v. State, 718 S.W.2d 734, 738 (Tex. Crim. App. 1986). Since we may not review the trial court=s decision to adjudicate or the process by which it chose to do so, we cannot consider appellant=s claim that the trial court erred in Arevoking@ his deferred adjudication without making a finding as to his willful refusal to pay. Tex. Code Crim. Proc. Ann. art. 42.12, '5(b)(Vernon Supp. 2002); Connolly, 983 S.W.2d at 741; Phynes, 828 S.W.2d at 2.

The second Bearden requirement that appellant asserts was violated is the determination by the trial court that alternative forms of punishment were not available. Bearden, 461 U.S. at 672. This complaint apparently is aimed at the trial court=s actions at the sentencing portion of the hearing and hence is not barred from appellate review by article 42.12, '5b as discussed previously. We note, however, that appellant made no complaint to the trial court of its alleged failure and that even constitutional claims may be waived by a failure to object at trial. Briggs v. State, 789 S.W.2d 918, 924 (Tex. Crim. App. 1990). However, even if we review such claim in the interest of justice, the requirement to consider other means of punishment only arises when a probationer has made bona fide efforts to pay and has been unable to do so. Corpus v. State, 26 S.W.3d 660, 662 (Tex. App.BCorpus Christi 2000, no pet.). The trial court in the present case made no such finding and the appellant below made no such argument. Appellant argued at the hearing that he had been dealing with his drug problems but did not say that he had not been able to pay nor that he had made good faith attempts to do so. Indeed, his testimony supported the State=s argument that, over most of the five years of his deferred adjudication, appellant had been using drugs and thus had impliedly chosen to spend his money on drugs rather than his court-ordered fines and restitution. We find that the trial court in the present case was not required to make any specific findings that other alternatives to imprisonment were not adequate.[6] We overrule this issue.

Conclusion

Having found that all but one of appellant=s claims are barred from appellate review, and having overruled appellant=s sole reviewable claim, we affirm the conviction and sentence of the trial court.

ERRLINDA CASTILLO

Justice

Do not publish.

Tex. R. App. P. 47.3(b).

Opinion delivered and filed

this 13th day of June, 2002.

1Tex. Pen. Code Ann. '30.02(a)(1)(Vernon Supp. 2002).

2 The State alleged that Hinojosa was in violation of the conditions of his community supervision due to arrearages as follows: $300 in probation fees; $9,130 in restitution; and $123 in the PSI fee.

3We invited both parties to submit additional briefs on this issue. None have been filed.

4We note that during the proceedings, neither appellant nor his attorney objected to any part of the proceedings, including the alleged failure of appellant to enter a plea.

[5]Specifically, the Supreme Court stated:

We hold, therefore, that in revocation proceedings for failure to pay a fine or restitution, a sentencing court must inquire into the reasons for the failure to pay. If the probationer willfully refused to pay or failed to make sufficient bona fide efforts legally to acquire the resources to pay, the court may revoke probation and sentence the defendant to imprisonment within the authorized range of its sentencing authority. If the probationer could not pay despite sufficient bona fide efforts to acquire the resources to do so, the court must consider alternative measures of punishment other than imprisonment. Only if alternative measures are not adequate to meet the State=s interests in punishment and deterrence may the court imprison a probationer who has made sufficient bona fide efforts to pay. To do otherwise would deprive the probationer of his conditional freedom simply because, through no fault of his own, he cannot pay the fine. Such a deprivation would be contrary to the fundamental fairness required by the Fourteenth Amendment.

Bearden v. Georgia, 461 U.S. 660, 672-73 (1983).

6 We note, however, that the trial court had considered, and utilized, other alternatives to incarceration in prior dealings with appellant on this case. The record reflects that the trial court had previously modified appellant=s probation on two prior occasions to send him to drug treatment and boot camp. However, according to the State=s comments at the revocation hearing, which were not contested by appellant, appellant was still testing positive for cocaine and marijuana use as little as a week before the revocation hearing.