Gary Dwayne Jackson v. State ( 2005 )

Opinion filed October 6, 2005

Opinion filed October 6, 2005

                                                                        In The

                     Eleventh Court of Appeals

                                                                   __________

                                                          No. 11-04-00017-CR

                                                    __________

                               GARY DWAYNE JACKSON, Appellant

                                                             V.

                                    THE STATE OF TEXAS, Appellee

                                          On Appeal from the 35th District Court

                                                          Brown County, Texas

                                                Trial Court Cause No. CR 16-693

                                                                   O P I N I O N

This is an appeal from a judgment revoking community supervision and adjudicating guilt. Originally, Gary Dwayne Jackson entered a plea of no contest to the offense of possession of methamphetamine. Pursuant to the plea bargain agreement, the trial court deferred the adjudication of guilt, placed appellant on community supervision for four years, and assessed a $1,000 fine.  The State filed a motion to adjudicate guilt contending that appellant had violated the terms and conditions of his community supervision by committing the offense of aggravated assault.  After the jury convicted appellant of aggravated assault, the trial court conducted a hearing on the motion to adjudicate.  The trial court determined that appellant had violated the terms and conditions of his community supervision based on the jury=s guilty verdict, revoked appellant=s community supervision, adjudicated his guilt, and assessed punishment at confinement for 15 years.  We affirm.

In his sole issue on appeal, appellant challenges the trial court=s decision to adjudicate guilt by arguing that the trial court erred during his aggravated assault trial. These arguments are not properly before this court in this appeal.

TEX. CODE CRIM. PRO. ANN. art. 42.12, ' 5(b) (Vernon Pamph. Supp. 2004 - 2005) precludes an appeal challenging the trial court=s determination to proceed with the adjudication of guilt.  Phynes v. State, 828 S.W.2d 1 (Tex.Cr.App.1992); Olowosuko v. State, 826 S.W.2d 940 (Tex.Cr.App.1992). We note that appellant=s arguments in his sole issue in this appeal are the same arguments that he raises in his direct appeal from his aggravated assault conviction and have been overruled by this court in the direct appeal.  Gary Dwayne Jackson v. State, No. 11-04-00016-CR (Tex.App. - Eastland, October 6, 2005)(not designated for publication).

The judgment of the trial court is affirmed.

TERRY McCALL

JUSTICE

October 6, 2005

Do not publish.  See TEX.R.APP.P. 47.2(b).

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