Aaron Cody Hawkins v. The State of Texas--Appeal from 8th District Court of Hopkins County

NO. 12-04-00282-CR

IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT

TYLER, TEXAS

AARON CODY HAWKINS, APPEAL FROM THE EIGHTH

APPELLANT

V. JUDICIAL DISTRICT COURT OF

THE STATE OF TEXAS,

APPELLEE HOPKINS COUNTY, TEXAS

MEMORANDUM OPINION

  Aaron Cody Hawkins appeals the trial court s order revoking his deferred adjudication community supervision, following which he was sentenced to imprisonment for twenty years. Appellant raises two issues on appeal. We dismiss for want of jurisdiction in part and affirm in part.

Background

On April 11, 2001, Appellant pleaded guilty to the offense of sexual assault of a child and was placed on deferred adjudication community supervision for ten years. On March 4, 2004, the State filed a Motion to Proceed with Adjudication of guilt, alleging, in part, that Appellant violated the terms of his community supervision by sexually assaulting a child and by being in the presence of a child younger than seventeen years of age. After a hearing, the trial court found that Appellant had violated the terms of his community supervision. The court held a separate punishment hearing and assessed punishment at twenty years of imprisonment. This appeal followed.

 Admission of Evidence

In his second issue, Appellant argues that the trial court erred in the admission of certain evidence at the hearing to determine whether he had violated the terms of his community supervision. By statute, a person alleged to have violated the conditions of his community supervision is entitled to a hearing to determine whether the court proceeds with an adjudication of guilt. Tex. Code Crim. Proc. Ann. art. 42.12, 5(b) (Vernon 2003). However, the same statute directs that no appeal may be taken from this determination. Id. The language of the statute is plain, and the court of criminal appeals has consistently held that appeals may not be heard from a trial court s determination to proceed to final adjudication. See Hogans v. State, 176 S.W.3d 829, 832 (Tex. Crim. App. 2005) ( Thus, if an appeal raises a claim of purported error in the adjudication of guilt determination, a court of appeals should dismiss that claim without reaching the merits. ); Connolly v. State, 983 S.W.2d 738, 741 (Tex. Crim. App. 1999); see also Cox v. State, 156 S.W.3d 599, 603 (Tex. App. Tyler 2004, pet. ref d). Appellant s issue relates to the admission of evidence at the hearing to consider whether to proceed with an adjudication of guilt. Therefore, we lack jurisdiction to review Appellant s second issue.

Pronouncement of Guilt

In his first issue, Appellant argues both that the trial court lacked jurisdiction to assess punishment and that his statutory due process rights were violated because the trial court did not make an oral pronouncement of guilt before holding a punishment hearing.

At the close of the evidence in the adjudication phase of the trial, the trial court stated: The Court will make the following findings in this case. Having heard the argument of Counsel, heard the evidence, the Court will find that he has violated his probation by violating conditions A, C, B(b), M, H(1), H(2), H(3), and R. The trial court did not make a formal pronouncement of guilt, but scheduled a punishment hearing and directed the preparation of a presentence investigation report. The trial court entered a written judgment reflecting that it found Appellant guilty and sentenced him.

When the trial court conducts a hearing on the adjudication of guilt and then holds the assessment of punishment in abeyance and orders a presentence investigation, the court necessarily implies that it has found the defendant guilty. See Villela v. State, 564 S.W.2d 750, 751 (Tex. Crim. App. 1978). The court of criminal appeals has observed that beyond the pronouncement of sentence no further ritual or special incantation from the bench is necessary to accomplish an adjudication of guilt. Jones v. State, 795 S.W.2d 199, 201 (Tex. Crim. App. 1990).1 Further, a written judgment is valid even in the absence of an express oral pronouncement of guilt by the trial court. Parks v. State, 960 S.W.2d 234, 238 (Tex. App. Houston [1st Dist.] 1997, pet. ref d) (citing Villela v. State, 564 S.W.2d 750, 751 (Tex. Crim. App. 1978)).

This court considered a similar complaint in Hicks v. State, Nos. 12-00-00301-CR, 12-00-00302-CR, 2002 WL 1065985, *1 (Tex. App. Tyler 2002, no pet.) (not designated for publication). In Hicks the trial court assessed punishment without formally stating that it found the defendant guilty. Id. As here, a written judgment reflected a finding of guilt. Relying on Villela, we held that the trial court s oral pronouncement revoking the deferred adjudication necessarily implied a finding of guilt. Id. In this case, the trial court implicitly found Appellant guilty when it found that he violated the conditions of his community supervision, ordered a presentence report, and scheduled a punishment hearing. Because the trial court found Appellant guilty before beginning a punishment hearing, the court did not err when it assessed punishment.

Appellant s due process argument presupposes that the trial court did not pronounce his guilt before assessing his punishment. We have held to the contrary. Therefore, we also resolve his due process claim against him.

Appellant s first issue is overruled.

DISPOSITION

This court is without jurisdiction to consider Appellant s second issue, and we dismiss that portion of the appeal. Having overruled Appellant s first issue, we affirm the trial court s judgment.

DIANE DEVASTO

Justice

Opinion delivered April 28, 2006.

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

(DO NOT PUBLISH)

1 By contrast, the sentence in a felony case must be pronounced in the defendant s presence. See Tex. Code Crim. Proc. Ann. art. 42.03(1)(a) (Vernon 2003).