Sharon Barkley v. The State of Texas--Appeal from 349th District Court of Houston County

NO. 12-05-00195-CR

IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT

TYLER, TEXAS

SHARON BARKLEY, APPEAL FROM THE 349TH

APPELLANT

V. JUDICIAL DISTRICT COURT OF

THE STATE OF TEXAS,

APPELLEE HOUSTON COUNTY, TEXAS

MEMORANDUM OPINION

Sharon Barkley appeals the trial court s decision to revoke her deferred adjudication community supervision and to adjudicate her guilt. Appellant raises two issues on appeal. We affirm in part and dismiss for want of jurisdiction in part.

Background

On October 4, 1999, Appellant pleaded guilty to the offense of fraud and was placed on deferred adjudication community supervision for ten years. The State filed a motion to adjudicate Appellant s guilt in 2002. Over the years that followed, the State filed three amended motions to adjudicate. In April 2005, the court convened a formal hearing to consider the adjudication of Appellant s guilt. At the hearing, Appellant complained that she had only received the first amended motion. The State agreed to proceed on the first amended motion, which alleged that Appellant had failed to report in person to her community supervision officer for nearly three years, had failed to pay various fees, and had failed to report a change of her address. Appellant pleaded not true to the allegations. During the hearing, however, Appellant testified and admitted that she had not paid and had not reported. Appellant also called a witness from the Rusk State Hospital where she had received treatment. The State elicited from this witness, over Appellant s objection, that Appellant had tested positive for cocaine and marihuana.

The trial court found the allegations in the State s motion to adjudicate to be true, found Appellant guilty, and assessed her sentence at seven years of imprisonment. This appeal followed.

Constitutionality of Article 42.12, Section 5

In her first issue, Appellant argues that Article 42.12, Section 5 of the Code of Criminal Procedure violates the Texas Constitution because it forbids appellate review of the decision to adjudicate guilt. The State did not file a brief.

The Code of Criminal Procedure provides that a defendant accused of violating a condition of deferred adjudication community supervision 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. Tex. Code Crim. Proc. Ann. art. 42.12, 5(b) (Vernon 2005). The statute also provides that no appeal may be taken from that determination. Id. Appellant argues this provision conflicts with the Texas Constitution because, she argues, the Texas Constitution grants her the general right to appeal. The Texas Constitution provides, in relevant part, that [t]he appeal of all other criminal cases shall be to the Courts of Appeal as prescribed by law. Tex. Const. art. V, 5(b).

Before we consider the constitutionality of a statute, we must be assured that the party raising such a claim has been presently injured by the statute. See Meshell v. State, 739 S.W.2d 246, 250 (Tex. Crim. App. 1987). Appellant asserts that she has been injured to the extent that she is not able to appeal an evidentiary ruling from the adjudication hearing. Specifically, Appellant argues that drug test results which purport to show that she consumed cocaine and marihuana while on community supervision were hearsay and should not have been admitted.

Appellant has not been injured by Article 42.12. Appellant testified that she had used marihuana and cocaine during the time she was on community supervision. It is well established that even the erroneous admission of evidence will not present reversible error if the evidence is subsequently admitted either by a party or without objection. Lane v. State, 151 S.W.3d 188, 193 (Tex. Crim. App. 2004); Leday v. State, 983 S.W.2d 713, 718 (Tex. Crim. App. 1998) ( Our rule . . . is that overruling an objection to evidence will not result in reversal when other such evidence was received without objection, either before or after the complained-of ruling. ); Ethington v. State, 819 S.W.2d 854, 858 (Tex. Crim. App. 1991). Therefore, Appellant s admission that she used cocaine and marihuana while on community supervision renders this issue moot.

Furthermore, Appellant s community supervision was not terminated because she used controlled substances. Rather, the trial court found that she had failed to report, failed to pay fees and failed to update her address with the authorities. Outside the context of deferred adjudication, proof of a single alleged violation is sufficient to sustain an order to revoke community supervision. See McConnell v. State, 34 S.W.3d 27, 30 (Tex. App. Tyler 2000, no pet.). There was ample evidence, including Appellant s admission that she failed to report, to support the trial court s decision.

Appellant has not been harmed by the statute that forbids an appeal from the trial court s decision to adjudicate guilt. Therefore, we do not reach the question whether the statute conflicts with the Texas Constitution.1 We overrule Appellant s first issue.

 Admission of Evidence

In her second issue, Appellant argues that the trial court erred in the admission of certain evidence at the hearing to determine whether she had violated the terms of her community supervision. As discussed in the previous section, a person alleged to have violated the conditions of her 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). 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.

Conclusion

We are 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.

SAM GRIFFITH

Justice

Opinion delivered May 26, 2006.

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

(DO NOT PUBLISH)

1 The court of criminal appeals has never interpreted Article V, 5(b) to be the source of a right to appeal. In fact, the court has consistently and repeatedly held that the source of the right to appeal is statutory. Phynes v. State, 828 S.W.2d 1, 2 (Tex. Crim. App. 1992); Jones v. State, 630 S.W.2d 353, 355 (Tex. Crim. App. 1983); Ex parte Paprskar, 573 S.W.2d 525, 528 (Tex. Crim. App. 1978); see also Trevino v. State, 164 S.W.3d 464, 464 (Tex. App. Fort Worth 2005, no pet.); Pierce v. State, 636 S.W.2d 734, 735 (Tex. App. Corpus Christi 1982, no pet.); Jones v. State, 630 S.W.2d 353, 355 (Tex. App. Houston [14th Dist.] 1982, no pet.).