Juan Jose Andrade v. The State of Texas--Appeal from 186th Judicial District Court of Bexar County

No. 04-00-00169-CR & 04-00-00170-CR
Juan Jose ANDRADE,
Appellant
v.
The STATE of Texas,
Appellee
From the 186th Judicial District Court, Bexar County, Texas
Trial Court No. 1994-CR-0519 & 1994-CR-0520
Honorable Sam Katz, Judge Presiding

Opinion by: Karen Angelini, Justice

Sitting: Phil Hardberger, Chief Justice

Alma L. L pez, Justice

Karen Angelini, Justice

Delivered and Filed: June 6, 2001

DISMISSED FOR LACK OF JURISDICTION

The trial court revoked Juan Jose Andrade's community supervision after he pleaded true to the State's allegations that he violated certain conditions of his probation. Andrade appeals the revocation on the grounds that he received ineffective assistance of counsel during the revocation hearing, rendering his plea of true involuntary. We dismiss the appeal for lack of jurisdiction.

Factual & Procedural Background

On September 6, 1994, Andrade pleaded guilty to Aggravated Assault on a Peace Officer and Aggravated Robbery with a Deadly Weapon without a plea agreement. The trial court granted his application for deferred adjudication and placed him on community supervision for ten years. The State filed a Motion to Adjudicate and Revoke in March 2000. At the hearing, Andrade pleaded true to using a controlled substance and failing to report in compliance with the Intensive Supervision Program. The trial court revoked his probation and sentenced Andrade to ten years confinement for each offense, the terms to run concurrently. On appeal, he contests the decision due to ineffective assistance of counsel.

In a single issue, Andrade claims he received ineffective assistance of counsel at the revocation hearing. He asserts his counsel allowed him to plead true to the failure to report allegation, even though the time period for which he was to report had expired. Therefore, he was denied effective representation.

Discussion

The Texas Code of Criminal Procedure proscribes appeal of revocation of deferred adjudication. Tex. Code Crim. Proc. Ann. art. 42.12, 5(b) (Vernon Supp. 2001). On direct appeal, Andrade cannot appeal from the trial court's decision to adjudicate. Phynes v. State, 828 S.W.2d 1, 2 (Tex. Crim. App. 1992). As the Court of Criminal Appeals explains, the Legislature strictly prohibits appeal of issues involving a determination to proceed with an adjudication of guilt. Olowosuko v. State, 826 S.W.2d 940, 942 (Tex. Crim. App. 1992). Even complaints concerning representation by counsel at a revocation hearing cannot be raised on appeal. Lowe v. State, 997 S.W.2d 670, 672 (Tex. App.-Dallas 1999, no pet.). This court is without jurisdiction to address Andrade's issue.

Conclusion

Andrade challenges his representation at the hearing to determine revocation of deferred adjudication. The Texas Code of Criminal Procedure directly states that no appeal may be taken from that determination under the circumstances in this case. Therefore, we lack the jurisdiction to address Andrade's issue and dismiss this appeal.

Karen Angelini, Justice

DO NOT PUBLISH