Karey Deshaun Thomas v. State ( 2005 )

Opinion Issued July 7, 2005

In The

Court of Appeals

For The

First District of Texas

---

NO. 01-04-00596-CR

---

KAREY DESHAUN THOMAS, Appellant

V.

THE STATE OF TEXAS, Appellee

---

On Appeal from the 179th District Court

Harris County, Texas

Trial Court Cause No. 813655

---

  MEMORANDUM OPINION

          Appellant, Karey Deshaun Thomas, pleaded guilty to aggravated robbery and the trial court deferred adjudication of guilt, placing him on community supervision for 10 years. See Tex. Code Crim. Proc. Ann. art. 42.12, § 5 (Vernon Supp. 2004-2005). Subsequently, appellant was adjudicated guilty, and the trial court assessed his punishment at 18 years in prison. We determine whether we possess jurisdiction to address appellant’s contention that we should enact a new standard for reviewing motions to adjudicate. We dismiss the appeal for want of jurisdiction.

Factual and Procedural Background

          Appellant pleaded guilty to the aggravated robbery of Adnan Lodhi on August 10, 1999. On October 5, 1999, the trial court deferred adjudication of appellant’s guilt and placed him on community supervision for a period of 10 years. Subsequently, the State filed a motion to adjudicate appellant’s guilt based on violations of the terms and conditions of his community supervision, including: (1) carrying of a handgun; (2) theft of tires owned by Mario Alfaro; (3) failure to report; (4) failure to complete the required community service program; and (5) failure to adhere to an electronic monitoring curfew. On February 5, 2004, the trial court adjudicated appellant guilty and assessed his punishment at 18 years in prison.   

Motion to Adjudicate

Appellant’s sole issue presented is, “What should the standard be on review of a Motion to Adjudicate?” Appellant requests that “[a] new rule of law . . . be implemented by the court.”  

A.      The Law 

          Deferred adjudication and community supervision are governed by article 42.12, section 5 of the Code of Criminal Procedure. Tex. Code Crim. Proc. Ann. art. 42.12, § 5. A defendant is not permitted to appeal a trial court’s determination of whether to proceed “with an adjudication of guilt on the original charge” after a defendant violates his or her community supervision. Id. art. 42.12, § 5(b) (Vernon Supp. 2004-2005). It is well-settled that, “given the plain meaning of Article 42.12, § 5(b), an appellant whose deferred adjudication has been revoked and who has been adjudicated guilty of the original charge may not raise on appeal contentions of error in the adjudication of guilt process.” Connolly v. State, 983 S.W.2d 738, 741 (Tex. Crim. App. 1999). The trial court has absolute discretion to proceed with such an adjudication of guilt, and that decision is not reviewable on appeal. See Williams v. State, 592 S.W.2d 931, 932-933 (Tex. Crim. App. 1979).

          Only after the trial court adjudicates a defendant’s previously deferred finding of guilt does it conduct a second phase to determine his or her punishment. See Issa v. State, 826 S.W.2d 159, 161 (Tex. Crim. App. 1992). From this point on, a “defendant’s appeal [may] continue as if the adjudication of guilt had not been deferred.” Tex. Code Crim. Proc. Ann. art. 42.12, § 5(b). The statute that governs deferred adjudication explicitly permits a defendant to appeal the punishment he or she is assessed because the issue does not “involve the trial court’s decision to adjudicate guilt.” Ex parte Brown, 158 S.W.3d 449, 453 (Tex. Crim. App. 2005); Kirtley v. State, 56 S.W.3d 48, 51-52 (Tex. Crim. App. 2001); see Vidaurri v. State, 49 S.W.3d 880, 885 (Tex. Crim. App. 2001).

 B.     Jurisdiction

          Appellant contends that, for appellate purposes, no distinction between typical community supervision and deferred-adjudication community supervision should exist. Appellant asserts that allowing appeals in community supervision cases, but not in deferred-adjudication cases “is a judicial creation . . . [which] needs to die.” The Code of Criminal Procedure clearly provides that an appeal may not be taken from a determination of the trial court as to whether to proceed with an adjudication of guilt after a violation of the terms or conditions of a defendant’s community supervision. Tex. Code Crim. Proc. Ann. art. 42.12, § 5(b).

          In this case, appellant was found to have violated the terms of his community supervision and was adjudicated guilty of the original charge of aggravated robbery. Appellant does not raise any appealable issues, or ones not relating to the trial court’s adjudication of guilt, including the 18-year sentence imposed upon him during the punishment phase. Because the decision to adjudicate guilt rests solely within the discretion of the trial court, and appellant is prohibited from pursuing this challenge on appeal, we lack jurisdiction to consider the appeal. We dismiss appellant’s challenge to the trial court’s adjudication of guilt. Castiblanco-Gomez v. State, 882 S.W.2d 564, 567 (Tex. App.—Houston [1st Dist.] 1994, writ ref’d) (citing Phynes v. State, 828 S.W.2d 1, 2 (Tex. Crim. App. 1992)).

Conclusion

          We dismiss the appeal for want of jurisdiction.

                                                             Tim Taft

                                                             Justice

Panel consists of Justices Taft, Alcala, and Higley.

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