Newman Elmo Jones III v. State ( 2006 )

Opinion filed February 2, 2006

Opinion filed February 2, 2006

                                                                        In The

    Eleventh Court of Appeals

                                                                   __________

                                                          No. 11-04-00136-CR

                                                    __________

                               NEWMAN ELMO JONES III, Appellant

                                                             V.

                                        STATE OF TEXAS, Appellee

                                          On Appeal from the 91st District Court

                                                        Eastland County, Texas

                                             Trial Court Cause No. CR-01-19,324

                                                                   O P I N I O N

Newman Elmo Jones III originally pleaded guilty to the offense of aggravated sexual assault of a child.  Pursuant to the terms of the plea bargain agreement, the trial court deferred the adjudication of appellant=s guilt and placed him on community supervision for ten years.  The State subsequently filed a motion to proceed with an adjudication of guilt.  The trial court granted the motion, convicted appellant of the offense, and assessed his punishment at confinement for twenty years.  We dismiss the appeal. 

Appellant presents three issues for appellate review.  In his first issue, appellant challenges the constitutionality of Tex. Code Crim. Proc. Ann. art. 42.12, ' 5(b) (Vernon Supp. 2005).  He contends that the statute violates his rights to due process and equal protection because it prohibits him from appealing the trial court=s decision to adjudicate guilt.  In his second issue, appellant asserts that he was denied due process because he violated the terms and conditions of his community supervision as a result of being subjected to conflicting obligations or misinformation from his community supervision officer.  In the third issue, appellant contends that adjudication was improper because the evidence was neither legally nor factually sufficient to revoke appellant=s deferred adjudication community supervision. 

Article 42.12, section 5(b) deprives this court of the authority to address appellant=s issues.  Hogans v. State, 176 S.W.3d 829 (Tex. Crim. App. 2005); Connolly v. State, 983 S.W.2d 738 (Tex. Crim. App. 1999); Phynes v. State, 828 S.W.2d 1 (Tex. Crim. App. 1992); Olowosuko v. State, 826 S.W.2d 940 (Tex. Crim. App. 1992).  Article 42.12, section 5(b) provides in part:

On violation of a condition of community supervision imposed under Subsection (a) of this section, the defendant may be arrested and detained as provided in Section 21 of this article.  The 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.  No appeal may be taken from this determination.  (Emphasis added)

Appellant may not use a direct appeal as the vehicle to assert contentions relating to the adjudication of guilt process.  Connolly, 983 S.W.2d at 741; Phynes, 828 S.W.2d at 2.  Accordingly, on direct appeal, appellant may not challenge the constitutionality of the limitation to appeal found in Article 42.12, section 5(b). Trevino v. State, 962 S.W.2d 176 (Tex. App.CFort Worth 1998, pet. ref=d); Leal v. State, 962 S.W.2d 652 (Tex. App.CCorpus Christi 1998, no pet.).  Moreover, we note that other courts have addressed the constitutional issues raised by appellant and have held that Article 42.12, section 5(b) does not violate the rights to due process and equal protection. Atchison v. State, 124 S.W.3d 755, 760 (Tex. App.CAustin 2003, pet. ref=d); Faerman v. State, 966 S.W.2d 843, 846-47 (Tex. App.CHouston [14th Dist.] 1998, no pet.).  We agree. 

The appeal is dismissed. 

February 2, 2006                                                                     TERRY McCALL

Do not publish.  See Tex. R. App. P. 47.2(b).                         JUSTICE

Panel consists of: Wright, C.J., and

McCall, J., and Strange, J.