Jerold Gesmond v. The State of Texas--Appeal from 167th District Court of Travis County

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-94-00489-CR
Jerold Gesmond, Appellant
v.
The State of Texas, Appellee
FROM THE DISTRICT COURT OF TRAVIS COUNTY, 167TH JUDICIAL DISTRICT
NO. 0935418, HONORABLE MICHAEL LYNCH, JUDGE PRESIDING

PER CURIAM

 

In January 1994, appellant pleaded guilty to solicitation of capital murder. The district court found that the evidence substantiated appellant's guilt, deferred further proceedings without adjudicating guilt, and placed appellant on community supervision. In July 1994, the court revoked community supervision on the State's motion, adjudicated appellant guilty, and assessed punishment at imprisonment for twenty years.

Appellant's first point of error is that the evidence does not support the district court's finding that he violated the conditions of supervision. This contention presents nothing for review. No appeal may be taken from the determination to proceed to adjudication. Olowosuko v. State, 826 S.W.2d 940, 942 (Tex. Crim. App. 1992); Tex. Code Crim. Proc. Ann. art. 42.12, 5(b) (West Supp. 1995). After adjudication of guilt, all proceedings, including the appeal, continue as if the adjudication of guilt had not been deferred. Art. 42.12, 5(b). Point of error one is overruled.

In points of error two and three, appellant contends that by prohibiting an appeal from the decision to proceed to adjudication of guilt, article 42.12, section 5(b) denies equal protection of the law to defendants placed on deferred adjudication. U.S. Const. Amend. XIV; Tex. Const. art. I, 3. Although he cites the federal and state constitutions in separate points of error, appellant groups these points for discussion and does not argue that the Texas and United States constitutions differ in any relevant respect.

There is no state or federal constitutional right to appellate review of a criminal conviction. Phynes v. State, 828 S.W.2d 1, 2 (Tex. Crim. App. 1992). Thus, appellant could not and does not contend that the right to appeal is a fundamental right. Appellant also does not contend that persons granted deferred adjudication constitute a suspect class. Therefore, appellant must demonstrate that the denial of an appeal from the decision to proceed to adjudication creates a classification that is not rationally related to a legitimate state interest. Clark v. State, 665 S.W.2d 476, 481 (Tex. Crim. App. 1984). Alternatively stated, the challenged classification violates the equal protection guarantee only if it rests on grounds wholly irrelevant to a valid state objective. Id.

The State has a legitimate interest in creating effective systems of community supervision. Art. 42.12, 1. To this end, the legislature has created a scheme of deferred adjudication that is in many ways separate and distinct from "regular" community supervision. With certain restrictions, "regular" community supervision may be granted by the trial court or by a jury; deferred adjudication may be granted only by the court. A defendant may be given "regular" community supervision following a plea of not guilty; a defendant must plead guilty or no contest to be eligible for deferred adjudication. Before being placed on "regular" community supervision, a defendant is adjudged guilty and sentenced; a person on deferred adjudication community supervision has been neither adjudged guilty nor sentenced. When "regular" community supervision is revoked, the sentence originally assessed is imposed unless it is reduced by the court; following the decision to proceed to adjudication of guilt, the court may assess any sentence prescribed for the offense. Upon the defendant's successful completion of "regular" community supervision, the trial court is not required to set aside the verdict of conviction; upon the defendant's successful completion of deferred adjudication community supervision, the trial court must dismiss the prosecution and the defendant emerges without a criminal conviction.

Obviously, the legislature balanced a number of interests and considerations in fashioning the deferred adjudication alternative to "regular" community supervision. Given the many differences between the two statutory schemes, it is difficult to accept appellant's contention that a defendant on community supervision following deferred adjudication is, for equal protection purposes, similarly situated to a defendant on "regular" community supervision. In any event, the legislature has considerable leeway to enact legislation that may appear to affect similarly situated persons differently. Clark, 665 S.W.2d at 480. We believe that the legislature could rationally conclude that prohibiting an appeal from the decision to proceed to adjudication is necessary to the proper functioning of the deferred adjudication system. Because article 42.12, section 5(b) has not been shown to create a classification wholly irrelevant to a valid state objective, appellant's contention that the statute denies defendants equal protection of the law is overruled. In reaching this conclusion, we follow the lead of three other courts of appeals. Buchanan v. State, 881 S.W.2d 376, 380 (Tex. App.--Houston [14th Dist.] 1994, pet. granted); Willis v. State, 856 S.W.2d 851, 852 (Tex. App.--Fort Worth 1993, no pet.); Keller v. State, 854 S.W.2d 224, 225 (Tex. App.--Beaumont 1993, pet. ref'd). Points of error two and three are overruled.

The judgment of conviction is affirmed.

 

Before Justices Powers, Aboussie and Kidd

Affirmed

Filed: November 8, 1995

Do Not Publish

Art. 42.12, 5(b). Point of error one is overruled.

In points of error two and three, appellant contends that by prohibiting an appeal from the decision to proceed to adjudication of guilt, article 42.12, section 5(b) denies equal protection of the law to defendants placed on deferred adjudication. U.S. Const. Amend. XIV; Tex. Const. art. I, 3. Although he cites the federal and state constitutions in separate points of error, appellant groups these points for discussion and does not argue that the Texas and United States constitutions differ in any relevant respect.

There is no state or federal constitutional right to appellate review of a criminal conviction. Phynes v. State, 828 S.W.2d 1, 2 (Tex. Crim. App. 1992). Thus, appellant could not and does not contend that the right to appeal is a fundamental right. Appellant also does not contend that persons granted deferred adjudication constitute a suspect class. Therefore, appellant must demonstrate that the denial of an appeal from the decision to proceed to adjudication creates a classification that is not rationally related to a legitimate state interest. Clark v. State, 665 S.W.2d 476, 481 (Tex. Crim. App. 1984). Alternatively stated, the challenged classification violates the equal protection guarantee only if it rests on grounds wholly irrelevant to a valid state objective. Id.

The State has a legitimate interest in creating effective systems of community supervision. Art. 42.12, 1. To this end, the legislature has created a scheme of deferred adjudication that is in many ways separate and distinct from "regular" community supervision. With certain restrictions, "regular" community supervision may be granted by the trial court or by a jury; deferred adjudication may be granted only by the court. A defendant may be given "regular" community supervision following a plea of not guilty; a defendant must plead guilty or no contest to be eligible for deferred adjudication. Before being placed on "regular" community supervision, a defendant is adjudged guilty and sentenced; a person on deferred adjudication commu