Kealvin D. Armstrong v. The State of Texas--Appeal from County Court at Law No 2 of Smith County

NO. 12-02-00006-CR
IN THE COURT OF APPEALS
TWELFTH COURT OF APPEALS DISTRICT
TYLER, TEXAS

KEALVIN D. ARMSTRONG,

 
APPEAL FROM THE

APPELLANT

 

V.

 
COUNTY COURT AT LAW #2

THE STATE OF TEXAS,

APPELLEE

 
SMITH COUNTY, TEXASMEMORANDUM OPINION
PER CURIAM

Kealvin D. Armstrong ("Appellant") pleaded guilty to the offense of assault causing bodily injury and was placed on deferred adjudication for one year. After Appellant violated the terms of his deferred adjudication, the State applied to proceed with a final adjudication of guilt on the assault charge. The trial court granted the State's application. In three issues, Appellant challenges the trial court's decision to proceed with a final adjudication of guilt. Because the trial court's determination to proceed with an adjudication of guilt is one of absolute discretion and is not reviewable, this appeal is dismissed.

 

Background

On December 29, 2000, Appellant pleaded guilty to the offense of assault causing bodily injury and was placed on deferred adjudication for one year. On October 12, 2001, the State filed an "Application to Proceed to Final Adjudication" of guilt on the assault charge, alleging that Appellant violated the terms of his deferred adjudication by assaulting another person on September 16, 2001. At the hearing on the State's application, Appellant pleaded "not true" to the State's allegation that he had violated the terms of his deferred adjudication. After the hearing, the trial court granted the State's application and sentenced Appellant to confinement in the Smith County Jail for one year.

Appellant argues that the evidence was legally and factually insufficient to support the trial court's decision to proceed with a final adjudication of Appellant's guilt on the earlier assault charge and that the trial court abused its discretion in deciding to proceed with a final adjudication of Appellant's guilt. We disagree.

 
Analysis

Section 5(b) of article 42.12 of the Texas Code of Criminal Procedure states that an offender who has violated one or more of the conditions of his deferred adjudication is entitled to a hearing to determine whether the court proceeds with an adjudication of guilt on the original charge. Tex. Code Crim. Proc. Ann. art. 42.12, 5(b) (Vernon 2002). An appellant cannot appeal the trial court's decision to revoke a deferred adjudication probation and to proceed with an adjudication of guilt on the original charge. Id; Olowosuko v. State, 826 S.W.2d 940, 942 (Tex. Crim. App. 1992). The court of criminal appeals has consistently held that a trial court's determination to proceed to a final adjudication of guilt cannot be the basis of an appeal because of the absolute, non-reviewable discretion section 5(b) of article 42.12 confers on a trial court when making such a determination. See Connolly v. State, 983 S.W.2d 738, 741 (Tex. Crim. App. 1999); Williams v. State, 592 S.W.2d 931, 932-33 (Tex. Crim. App. 1979). Therefore, we overrule Appellant's issues.

Appellant's appeal is dismissed.

 

Opinion delivered January 8, 2003.

Panel consisted of Worthen, C.J., and Griffith, J.

 
(DO NOT PUBLISH)