David Werner v. The State of Texas--Appeal from County Court at Law No 7 of Bexar County

No. 04-00-00048-CR

David WERNER,
Appellant
v.
The STATE of Texas,
Appellee
From County Court at Law No. 7, Bexar County, Texas
Trial Court No. 696509
Honorable Bill White, Judge Presiding

Opinion by: Karen Angelini, Justice

Sitting: Catherine Stone, Justice

Paul W. Green, Justice

Karen Angelini, Justice

Delivered and Filed: October 11, 2000

AFFIRMED IN PART; APPEAL DISMISSED FOR LACK OF JURISDICTION IN PART

David Werner pled no contest to the offense of assault causing bodily injury. The trial court deferred adjudication and placed Werner on probation for a term of one year, effective January 14, 1999. The State filed a motion to revoke probation and adjudicate guilt, alleging Werner violated a condition of his probation by again committing assault. Werner pled not true to the allegation, and the trial court, after a hearing, adjudicated him guilty, sentenced him to a term of ten months confinement, and ordered him to pay a fine of $600 and court costs. Werner raises three issues on appeal.

Werner's first issue is that the trial court did not have jurisdiction to revoke his probation and adjudicate guilt after his probation period expired. It is well settled law that a trial court has continuing jurisdiction to revoke deferred adjudication probation after the probationary term has expired, as long as the State meets several conditions. Prior to the expiration of the term, the State must file a motion alleging a violation of probationary terms and ensure that a capias or arrest warrant is issued. Further, the State should exercise due diligence to apprehend the probationer and ensure a hearing is conducted on the allegations in the motion. See Prior v. State, 795 S.W.2d 179, 184 (Tex. Crim. App. 1990). In this case, the motion to revoke probation was filed September 21, 1999, before the probationary term expired January 14, 2000. Werner argues in his brief that the record contains no capias or arrest warrant, and therefore we must assume none was issued. However, after Werner filed his brief, the State supplemented the clerk's record, which now includes the omitted capias. See Tex. R. App. P. 34.5(c)(1) (any party may direct the trial court clerk to file a supplemental record containing relevant omitted items). The capias was issued September 21, 1999 and executed September 23, 1999 by Werner's arrest, well within the probationary term. Werner does not challenge the due diligence of the State in apprehending him, nor can he. See Connally v. State, 983 S.W.2d 738, 741 (Tex. Crim. App. 1999)(due diligence is not a jurisdictional matter). We hold that the trial court had jurisdiction under these facts to revoke Werner's probation and adjudicate his guilt. Werner's first issue is overruled.

Werner's second issue is that there was no evidence to support the court's finding of true to the allegations in the motion to revoke probation. We do not have jurisdiction to consider this issue pursuant to Texas Code of Criminal Procedure article 42.12, section 5(b), which states in part: "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." Tex. Code Crim. Proc. art. 42.12 5(b) (Vernon Supp. 2000). The trial court's decision to proceed with an adjudication of guilt is thus one of absolute discretion which is not subject to appellate review. See Connally, 983 S.W.2d at 740; Olowosuko v. State, 826 S.W.2d 940, 942 (Tex. Crim. App. 1992). We therefore dismiss Werner's second issue for lack of jurisdiction. Likewise, we dismiss Werner's third issue, which is that the trial court deprived him of fundamental due process and his right to the presumption of innocence by allowing the State to cross-examine a witness after both the State and the defense had rested. As we held in Arista v. State, "[t]he Court of Criminal Appeals, however, has suggested that any decision not related to the trial court's jurisdiction is intrinsically part of the trial court's decision to adjudicate guilt and is therefore not appealable." Arista v. State, 2 S.W.3d 444, 445-46 (Tex. App.-San Antonio 1999)(dismissing complaints based on incompetency at the hearing on the motion to revoke probation, and citing to Connally, 983 S.W. 2d at 741). The trial court's decision to allow the State to question a witness after the defense rested was a procedural decision not related to its jurisdiction. It is therefore not appealable. We dismiss Werner's third issue for lack of jurisdiction.

Karen Angelini

Justice

DO NOT PUBLISH