Patricia Fisher v. The State of Texas--Appeal from 6th District Court of Lamar County

In The

Court of Appeals

Sixth Appellate District of Texas at Texarkana

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No. 06-04-00013-CR

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PATRICIA FISHER, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 6th Judicial District Court

Lamar County, Texas

Trial Court No. 17823

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

Memorandum Opinion by Chief Justice Morriss

MEMORANDUM OPINION

After Patricia Fisher pled guilty in 2000 to possession of a controlled substance, the trial court deferred adjudication, placing Fisher on community supervision for four years. In 2003, the State filed a motion to proceed with final adjudication and, although Fisher's community supervision officer did not appear at the revocation hearing that followed, another officer, unrelated to Fisher's case but designated as custodian of records for Lamar County's Community Supervision Department, was permitted to testify from Fisher's file on the basis that it was a report kept in the course of a regularly conducted business activity. See Tex. R. Evid. 803(6). After hearing this testimony, the trial court agreed with the State's allegations, revoked Fisher's community supervision, sentenced her to two years' confinement in a state jail facility, and ordered her to pay $789.25 in court costs and a $379.00 fine.

Fisher now appeals, contending the trial court abused its discretion. She argues that, because the evidence offered by the State constituted inadmissible hearsay violative of the Confrontation Clause, its proper exclusion would have rendered the evidence insufficient to support the State's motion to proceed with final adjudication. Without commenting on the merits of Fisher's claims, we note the Texas Code of Criminal Procedure expressly denies a defendant the right to appeal from a trial court's decision to proceed with adjudication based on an alleged violation of the terms of community supervision.

Although Article 42.12, Section 5(b) provides that a "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," he or she is not permitted to appeal this determination. Tex. Code Crim. Proc. Ann. art. 42.12, 5(b) (Vernon Supp. 2004); Connolly v. State, 983 S.W.2d 738, 741 (Tex. Crim. App. 1999); Phynes v. State, 828 S.W.2d 1, 2 (Tex. Crim. App. 1992); Lloyd v. State, 97 S.W.3d 808, 809 (Tex. App. Texarkana 2003, pet. ref'd). As a result, courts of appeals are deprived of jurisdiction to entertain appeals from the trial court's decision to adjudicate guilt. Morris v. State, No. 06-03-00069-CR, 2003 Tex. App. LEXIS 9969, at *3 (Tex. App. Texarkana Nov. 24, 2003, no pet.) (not designated for publication). Fisher has presented us with only issues related to the trial court's decision to adjudicate guilt.

Accordingly, we dismiss Fisher's appeal for want of jurisdiction.

Josh R. Morriss, III

Chief Justice

Date Submitted: June 22, 2004

Date Decided: July 20, 2004

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