Gilbert Anthony Reyes v. State ( 2004 )

  NUMBER 13-03-596-CR

  COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG   

GILBERT ANTHONY REYES,                                                     Appellant,

v.

THE STATE OF TEXAS,                                                             Appellee.

On appeal from the 24th District Court of Victoria County, Texas.

MEMORANDUM OPINION

Before Justices Yañez, Rodriguez, and Garza

Memorandum Opinion by Justice Yañez

          Pursuant to a plea bargain, appellant, Gilbert Anthony Reyes, pled guilty to aggravated assault. The trial court deferred adjudication and imposed ten years of community supervision, community service restitution, and a fine of $1500. The State subsequently filed a petition to adjudicate, alleging new crimes and numerous violations of appellant’s community supervision. Appellant pled “true” to all of the allegations. The trial court revoked appellant’s community supervision, adjudicated his guilt, and assessed punishment at seventeen years in the Institutional Division of the Texas Department of Criminal Justice. In two issues, appellant contends: (1) the statutory prohibition on appealing a trial court’s determination to adjudicate is unconstitutional; and (2) his plea of guilty at his original plea proceeding was not made knowingly or voluntarily because he did not personally waive his right to a presentence investigation report. We dismiss the appeal.

          As this is a memorandum opinion not designated for publication and the parties are familiar with the facts, we will not recite them here except as necessary to advise the parties of the Court’s decision and the basic reasons for it. See Tex. R. App. P. 47.4.

          The record contains the trial court’s certification that the case is not a plea-bargain case and the defendant has a right to appeal. See Tex. R. App. P. 25.2(a)(2).

          In his first issue, appellant contends that article 42.12, section 5(b) of of the code of criminal procedure, prohibiting the appeal of a trial court’s determination to adjudicate guilt, is unconstitutional because it violates his right to equal protection under the Fourteenth Amendment of the United States Constitution. Appellant argues there is “no real difference” between adjudication hearings and revocation hearings and that any distinction between the two categories is “arbitrary, capricious, and unconstitutional.”

          Texas Code of Criminal Procedure article 42.12, section 5(b) expressly denies a defendant the right to appeal from a trial court’s determination to adjudicate. See Tex. Code Crim. Proc. Ann. art. 42.12, § 5(b) (Vernon Supp. 2004); Olowosuko v. State, 826 S.W.2d 940, 941-42 (Tex. Crim. App. 1992). Article 42.12, section 5(b) expressly allows, however, an appeal of all proceedings after the adjudication of guilt on the original charge. See Tex. Code Crim. Proc. Ann. art. 42.12, § 5(b) (Vernon Supp. 2004); Olowosuko, 826 S.W.2d at 942. Examples of proceedings after adjudication that may be appealed include the assessment of punishment and the pronouncement of sentence. Tex. Code Crim. Proc. Ann. art. 42.12, § 5(b) (Vernon Supp. 2004); Rodriquez v. State, 972 S.W.2d 135, 138 (Tex. App.–Texarkana 1998), aff’d on other grounds, 992 S.W.2d 483 (Tex. Crim. App. 1999).

          Neither the Texas nor the United States Constitution provides a right to appellate review of criminal convictions. See Phynes v. State, 828 S.W.2d 1, 2 (Tex. Crim. App. 1992) (en banc). The State of Texas, therefore, may properly limit or even deny the right to appeal a criminal conviction entirely. See id. Thus, when a "legislative enactment says an accused may not appeal a determination to adjudicate, there is no right to do so." Id.

Appellant acknowledges that the court of criminal appeals’ holding in Phynes is “adverse to his position.”

          In Connolly v. State, 983 S.W.2d 738, 741 (Tex. Crim. App. 1999), the court of criminal appeals noted the long line of cases holding that the plain meaning of article 42.12, section 5(b) prohibits an appellant whose deferred adjudication probation has been revoked and who has been adjudicated guilty from appealing alleged errors in the adjudication process. See id. The Connolly court specifically noted that because “the Legislature has not overturned our interpretation of the statute after all these years, we are confident that our interpretation is correct.” Id. (citing State v. Hall, 829 S.W.2d 184, 187 (Tex. Crim. App. 1992) (prolonged legislative silence following judicial interpretation of statute implies approval of interpretation)).

          Regardless of whether we view appellant’s arguments as persuasive, this Court lacks any authority to disregard the statutory prohibitions contained in article 42.12, section 5(b) of the code of criminal procedure. We overrule appellant’s first issue.

          In his second issue, appellant contends his plea of guilty at his original plea proceeding on August 7, 2001 was not made knowingly or voluntarily because he did not personally waive his right to have a presentence investigation report, but rather, his trial counsel waived the right on his behalf.

          If appellant wished to appeal issues arising from the original plea proceeding in an appeal taken from that proceeding, he must have done so at that time. Manuel v. State, 994 S.W.2d 658, 661-62 (Tex. Crim. App. 1999). Because he waited until his community supervision had been revoked and his adjudication of guilt formally made, we are without authority to consider an appeal from the original plea proceeding. Id. at 662. We overrule appellant’s second issue.  

          Accordingly, we DISMISS the appeal.

                                                               LINDA REYNA YAÑEZ

                                                                           Justice

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

Memorandum opinion delivered and filed this the

26th day of August, 2004.