Mary Ann Garza v. The State of Texas--Appeal from 227th Judicial District Court of Bexar County

No. 04-98-00219-CR
Mary Ann GARZA,
Appellant
v.
The STATE of Texas,
Appellee
From the 227th Judicial District Court, Bexar County, Texas
Trial Court No. 93-CR-0307A
Honorable Peter Michael Curry, Judge Presiding

Opinion by: Tom Rickhoff, Justice

Sitting: Phil Hardberger, Chief Justice

Tom Rickhoff, Justice

Catherine Stone, Justice

Delivered and Filed: October 28, 1998

DISMISSED

Pursuant to a plea agreement, Mary Ann Garza pled guilty to theft. The agreement provided that the State would recommend five years of imprisonment and would remain silent on Garza's application for deferred adjudication. After finding that the evidence substantiated her guilt, the trial court deferred the adjudication of guilt and placed Garza on probation for five years. Thereafter, the trial court revoked her probation, adjudicated her guilty, and sentenced her to four years in prison. At the conclusion of the adjudication hearing, the court stated that it would deny Garza permission to appeal. Garza now appeals, raising three points of error. Because we lack jurisdiction over these points of error, we dismiss the appeal.

Discussion

Because Garza pled guilty, was sentenced in accordance with her plea agreement, and did not receive the trial court's permission to appeal, she may only raise on appeal the voluntariness of the plea, jurisdictional issues, or issues raised by written motion and ruled on before trial. See Tex. R. App. P. 25.2(b)(3); Flowers v. State, 935 S.W.2d 131, 134 (Tex. Crim. App. 1996) (construing the predecessor to Rule 25.2(b)(3)); Watson v. State, 924 S.W.2d 711, 714 (Tex. Crim. App. 1996). Garza's notice of appeal states that the trial court's failure to conduct a separate punishment hearing after adjudicating her guilty constitutes a jurisdictional defect. In her brief, she asserts that the trial court erred by: 1) failing to conduct the separate punishment hearing; 2) adjudicating her guilty even though she did not plead true to the State's motion to revoke and the State did not present any evidence to support the motion to revoke; and 3) basing its decision to adjudicate her guilty on the possibility that she might become pregnant if her probation were not revoked.

The trial court's failure to conduct a separate punishment hearing after adjudicating Garza guilty is not a jurisdictional defect. See Coleman v. State, 955 S.W.2d 360, 362 (Tex. App.--Amarillo 1997, no pet.) (punishment phase of criminal proceeding is not jurisdictional issue); see also Watson, 924 S.W.2d at 714 (court of appeals was without jurisdiction to consider complaint that trial court assessed predetermined sentence after it adjudicated plea-bargaining defendant guilty); Issa v. State, 826 S.W.2d 159, 161 (Tex. Crim. App. 1992) (failure to conduct separate punishment hearing is waivable). Therefore, we do not have jurisdiction over Garza's first point of error.

Nor do we have jurisdiction over Garza's second and third points of error. Garza's failure to enter a plea did not deprive the trial court of jurisdiction. See Detrich v. State, 545 S.W.2d 835, 837 (Tex. Crim. App. 1977) (due process does not require that a plea be entered at a hearing to revoke probation); Anthony v. State, 962 S.W.2d 242, 246 (Tex. App.--Fort Worth 1998, no pet. h.) (same). The failure of the State to present evidence is not a jurisdictional defect. See Rhem v. State, 873 S.W.2d 383, 384 (Tex. Crim. App. 1994); Santallan v. State, 922 S.W.2d 306, 310 (Tex. App.--Fort Worth 1996, pet. ref'd). The court's purported consideration of an improper factor is also not a jurisdictional defect. See Niles v. State, 931 S.W.2d 714, 715 & n.2 (Tex. App.--Fort Worth 1996, no pet.). Furthermore, when the State alleges that a defendant has violated a condition of deferred adjudication probation, "[t]he 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." Tex. Code Crim. Proc. Ann. art. 42.12, 5(b) (Vernon Supp. 1998). We lack jurisdiction over Garza's second and third points of error pursuant to this provision. See Phynes v. State, 828 S.W.2d 1, 2 (Tex. Crim. App. 1992); Drew v. State, 942 S.W.2d 98, 99 (Tex. App.--Amarillo 1997, no pet.).

For the reasons stated herein, the appeal is dismissed for lack of jurisdiction.

Tom Rickhoff, Justice

DO NOT PUBLISH

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