Rosales, Ruben v. The State of Texas--Appeal from 171st District Court of El Paso County

COURT OF APPEALS

EIGHTH DISTRICT OF TEXAS

EL PASO, TEXAS

RUBEN ROSALES, )

) No. 08-02-00073-CR

Appellant, )

) Appeal from the

v. )

) 171st District Court

THE STATE OF TEXAS, )

) of El Paso County, Texas

Appellee. )

) (TC# 970D12100)

)

O P I N I O N

Pending before the Court is the State=s motion to dismiss this appeal for want of jurisdiction. The appeal is from the revocation of community supervision and adjudication of guilt for aggravated assault.

In January 1998, Appellant was indicted for aggravated assault. On March 20, 1998, he entered a negotiated plea of guilty to the charge. Pursuant to the plea agreement, the trial court placed Appellant on 8 years= deferred-adjudication community supervision. See Tex.Code Crim.Proc.Ann. art. 42.12, ' (5)(a)(Vernon Supp. 2002). On January 22, 2002, the trial court held a hearing on a State=s motion to revoke community supervision and adjudicate guilt based on Appellant=s failure to abide by the terms of the community supervision. At that time, the court determined Appellant had violated the terms and conditions of community supervision and Appellant was adjudicated guilty on the initial aggravated-assault charge. Appellant was sentenced to twenty years= confinement.

Appellant now raises a single issue on appeal. He contends the State failed to prove at the revocation hearing that Appellant was the same individual who was originally placed on

deferred-adjudication community supervision. This argument is essentially a challenge to the sufficiency of evidence supporting the adjudication of guilt.

The State=s motion urges this Court to dismiss the appeal for want of jurisdiction. The State argues Appellant=s complaint is governed by Texas Code of Criminal Procedure Article 42.12, ' (5)(b), and therefore not reviewable on appeal. We agree.

Article 42.12, ' (5)(b) provides in part:

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. [Emphasis added].

Tex.Code Crim.Proc.Ann. art. 42.12, ' (5)(b). Texas courts have consistently applied the plain meaning of this provision and disallowed appeals arising from a trial court=s decision to proceed with an adjudication of guilt on a deferred adjudication. Olowosuko v. State, 826 S.W.2d 940, 942 (Tex.Crim.App. 1992). The trial court=s decision to proceed with an adjudication of guilt is one of absolute nonreviewable discretion. Williams v. State, 592 S.W.2d 931, 932-33 (Tex.Crim.App. 1979). Moreover, challenges to the sufficiency of evidence supporting the trial court=s decision to adjudicate may not be raised on appeal. Connolly v. State, 983 S.W.2d 738, 739-41 (Tex.Crim.App. 1999).

Appellant=s claim is clearly barred by Texas law. Tex.Code Crim.Proc.Ann. art. 42.12, ' (5)(b); Connolly, 983 S.W.2d at 739-41. Accordingly, the State=s motion for dismissal is granted. This appeal is dismissed for want of jurisdiction.

September 12, 2002

DAVID WELLINGTON CHEW, Justice

Before Panel No. 3

Barajas, C.J., Larsen, and Chew, JJ.

(Do Not Publish)