Gary W. Hale, Jr. v. The State of Texas--Appeal from 35th District Court of Brown County

Opinion filed March 22, 2007

In The

Eleventh Court of Appeals

__________

   No. 11-05-00280-CR

__________

   GARY WAYNE HALE, JR., Appellant

V.

STATE OF TEXAS, Appellee

On Appeal from the 35th District Court

Brown County, Texas

Trial Court Cause No. CR-17,057

O P I N I O N

This is an appeal from a judgment revoking community supervision and adjudicating guilt. Originally, Gary Wayne Hale, Jr. entered a plea of guilty to the offense of enticing a child. Pursuant to the plea bargain agreement, the trial court deferred the adjudication of guilt, placed appellant on community supervision for 10 years, assessed a $3,000 fine, and required appellant to perform 200 hours of community service. The State filed a motion to adjudicate guilt contending that appellant had violated the terms and conditions of his community supervision by committing two offenses of aggravated sexual assault. The State alleged additional violations in an amended motion to adjudicate. After the jury convicted appellant of the aggravated sexual assault offenses, the trial court conducted a hearing on the motion to adjudicate. Based on the evidence presented at the trial of the aggravated sexual assault offenses, the trial court determined that appellant had violated the terms and conditions of his community supervision, revoked appellant=s community supervision, adjudicated his guilt, assessed punishment at confinement for 10 years, and assessed a $10,000 fine. We dismiss.

In two points of error on appeal, appellant challenges the trial court=s decision to adjudicate guilt by arguing that the trial court erred during his aggravated sexual assault trial and that he received ineffective assistance of counsel during his aggravated sexual assault trial. These points are not properly before this court in this appeal.

Tex. Code Crim. Proc. Ann. art. 42.12, ' 5(b) (Vernon 2006) precludes an appeal challenging the trial court=s determination to proceed with the adjudication of guilt. Phynes v. State, 828 S.W.2d 1 (Tex. Crim. App. 1992); Olowosuko v. State, 826 S.W.2d 940 (Tex. Crim. App. 1992). We note that appellant=s arguments in his points of error in this appeal are the same arguments that he raised in his direct appeal from his aggravated sexual assault convictions and that this court has overruled appellant=s points of error in the direct appeal. Gary Wayne Hale, Jr. v. State, No. 11-05-00281-CR (Tex. App.CEastland, March 22, 2007).

Because appellant cannot appeal the trial court=s decision to adjudicate guilt, we dismiss appellant=s appeal. Phynes, 828 S.W.2d at 2.

TERRY McCALL

JUSTICE

March 22, 2007

Do not publish. See Tex. R. App. P. 47.2(b).

Panel consists of: Wright, C.J.,

McCall, J., and Strange, J.