Brian Hedden v. The State of Texas--Appeal from 265th District Court of Dallas County

In The

Court of Appeals

Sixth Appellate District of Texas at Texarkana

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No. 06-03-00225-CR

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BRIAN DOUGLAS HEDDEN, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 265th Judicial District Court

Dallas County, Texas

Trial Court No. F02-25184-WR

Before Morriss, C.J., Ross and Carter, JJ.

Memorandum Opinion by Justice Ross

MEMORANDUM OPINION

Brian Douglas Hedden has appealed the trial court's judgment adjudicating his guilt and sentencing him to twelve years' imprisonment. On appeal, Hedden contends (1) the trial court failed to afford him due process because he was not served with a copy of the motion to adjudicate guilt, (2) the trial court erred by adjudicating Hedden's guilt for reasons other than a violation of the original judgment placing him on deferred community supervision, and (3) the evidence is insufficient to support a finding Hedden violated the conditions of his community supervision in the manner alleged in the State's motion to adjudicate guilt. We dismiss the appeal for want of jurisdiction.

Background

On November 5, 2002, Hedden pled guilty to the offense of sexual assault of a child, as charged in the indictment. See Tex. Pen. Code Ann. 22.011(a)(2)(A) (Vernon Supp. 2004) (sexual assault of a child). Pursuant to a plea agreement, the trial court deferred a finding of guilt and placed Hedden on community supervision for a period of ten years.

On December 4, 2002, the trial court modified Hedden's conditions of community supervision. See Tex. Code Crim. Proc. Ann. art. 42.12, 10 (Vernon Supp. 2004) (trial court may modify conditions of community supervision). The modification prohibited Hedden from operating a motor vehicle without first obtaining a valid Texas driver's license, and it ordered that, before he obtained a driver's license, Hedden was first to

enter the Dallas County Community Supervision and Corrections Department['s] Antabuse Program to include consuming an Antabuse tablet as prescribed by a doctor, and supply proof to the probation officer that an Antabuse tablet was consumed in the presence of a staff member daily. Comply with the directives and policies of the Antabuse Program.

Hedden's signature, acknowledging and accepting the terms of the trial court's modification, appears at the bottom of the trial court's order.

On June 4, 2003, the State filed a motion to adjudicate Hedden's guilt, alleging Hedden had failed to take the Antabuse on March 6, 11, 21, 24, and 31, on April 10 and 22, and on May 14 of that year. On July 19, 2003, Hedden filed an objection to the State's motion to adjudicate guilt on the basis that the alleged violations were not required by the trial court's order of November 5, 2003.

The following day, Hedden pled "true" to the allegations contained in the State's motion to adjudicate guilt, including failing to take Antabuse as required. The trial court adjudicated his guilt and sentenced him to twelve years' imprisonment.

Analysis

In his first point of error, Hedden contends he was denied due process because the State failed to serve him with written notice of the way in which Hedden allegedly violated his conditions of community supervision. Hedden next asserts the trial court erred by adjudicating his guilt for violating the terms of the modification order of December 4, 2004, because those conditions were "vague and ambiguous." Finally, Hedden argues the trial court abused its discretion by adjudicating his guilt when the evidence presented at the hearing varied from the allegation contained in the State's motion to adjudicate guilt.

"It is well settled that no appeal may be taken of a trial court's determination to adjudicate guilt." Smith v. State, 52 S.W.3d 475, 476 (Tex. App. Corpus Christi 2001, pet. ref'd) (citing Tex. Code Crim. Proc. Ann. art. 42.12, 5(b); Phynes v. State, 828 S.W.2d 1, 2 (Tex. Crim. App. 1992)). Hedden's points of error concern the trial court's decision to proceed to an adjudication of guilt. We are without jurisdiction to consider issues related to a trial court's decision to proceed to an adjudication of guilt. Cf. Phynes, 828 S.W.2d at 2 (appellate court was without jurisdiction to consider whether trial court erred by proceeding on motion to adjudicate when counsel was not present). But cf. Vidaurri v. State, 49 S.W.3d 880, 885 (Tex. Crim. App. 2001) (appellate court had jurisdiction to consider claim that appellant was denied separate punishment hearing because that issue was separate from court's decision to adjudicate). //

Moreover, even if we had jurisdiction to consider the first point of error, Hedden failed to preserve the issue for appellate review. To preserve an issue for appellate review, the record must show (1) the complaint was presented to the trial court by timely request, objection, or motion, and (2) the trial court either ruled on the request, objection, or motion, or the trial court refused to rule and the appellant objected to that refusal to rule. Tex. R. App. P. 33.1(a). Even certain constitutional errors may be waived. Wright v. State, 28 S.W.3d 526, 536 (Tex. Crim. App. 2000). Hedden did not object before, or during, the hearing on the State's motion. Neither did Hedden request a continuance for more time to prepare. The record also shows Hedden was aware of the allegations contained in the State's motion to adjudicate. Cf. Eddie v. State, 100 S.W.3d 437, 440 (Tex. App. Texarkana 2003, pet. ref'd). Therefore, if we had jurisdiction, we would find Hedden failed to preserve this issue for appellate review.

For the reasons stated, we are without jurisdiction to consider Hedden's appeal. We dismiss the appeal for want of jurisdiction.

Donald R. Ross

Justice

Date Submitted: March 29, 2004

Date Decided: March 30, 2004

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