Billy Joe Brown v. State ( 2004 )

NO. 12-03-00277-CR

IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT

TYLER, TEXAS

BILLY JOE BROWN,

§ APPEAL FROM THE SECOND

APPELLANT

V.

§ JUDICIAL DISTRICT COURT OF

THE STATE OF TEXAS,

APPELLEE

§ CHEROKEE COUNTY, TEXAS MEMORANDUM OPINION

Billy Joe Brown ("Appellant") appeals the trial court's revocation of his deferred adjudication probation as well as the sentence imposed on him. We dismiss a portion of this appeal for want of jurisdiction. As to the remaining issue, we affirm.

Background  

Appellant was charged by indictment with retaliation and pleaded "guilty." The trial court deferred an adjudication of guilt and placed Appellant on community supervision for six years. On April 28, 2003, the State filed a motion to revoke Appellant's community supervision alleging that, among other things, Appellant had been convicted of possession of methamphetamine, a controlled substance. Appellant pleaded "true" to the aforementioned allegation. Following a hearing, the trial court revoked Appellant's community supervision, adjudicated Appellant guilty of retaliation, and sentenced Appellant to imprisonment for ten years. This appeal followed.

Appeal of Revocation of Deferred Adjudication Probation

In his second issue, Appellant argues that he received ineffective assistance of counsel. ⁽¹⁾ Texas Code of Criminal Procedure Article 42.12, section 5(b) governs the situation at issue. Article 42.12, section 5(b) states as follows:

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.

Tex. Code. Crim. Proc. Ann. art. 42.12 § 5(b) (Vernon Supp. 2004) (emphasis added).

In Connolly v. State, 983 S.W.2d 738 (Tex. Crim. App. 1999), the court of criminal appeals reiterated a long line of cases dealing with situations similar to the instant case. See Connolly, 983 S.W.2d at 740-41 (citing Olowosuko v. State, 826 S.W.2d 940, 942 (Tex. Crim. App. 1992) (explaining that court of criminal appeals had "held from the beginning of deferred adjudication practice that the Legislature [had] meant what it said in Article 42.12 § 5(b)"); Phynes v. State, 828 S.W.2d 1, 2 (Tex. Crim. App. 1992) (on appeal of trial court's decision to revoke probation and adjudicate, even if the appellant's right to counsel had been violated, the appellant could not use direct appeal as the vehicle with which to seek redress); Wright v. State, 592 S.W.2d 604, 606 (Tex. Crim. App. 1980) (under the terms of the statute, no appeal may be taken from the hearing in which the trial court determines to proceed with an adjudication of guilt on the original charge); Williams v. State, 592 S.W.2d 931, 932-33 (Tex. Crim. App. 1979) (trial court's decision to proceed with an adjudication of guilt is one of absolute discretion and is not reviewable)). The court continued:

In all these cases, we have tried to make clear that, given the plain meaning of Article 42.12 § 5(b), an appellant whose deferred adjudication probation 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. (citation omitted). Moreover, since the legislature has not overturned our interpretation of the statute after all these years, we are confident that our interpretation is correct. See 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).

Connolly, 983 S.W.2d at 741.

In our view, given the factual similarities between Connolly, its progeny, and the case at hand, the holdings in Connolly and the cases cited therein control the instant case as it relates to the trial court's decision to proceed to adjudication. Considering the plain meaning of article 42.12, section 5(b) and the long line of authority from the court of criminal appeals on the issue, we hold that Appellant cannot raise his second issue, which arises out of the trial court's decision to proceed with the adjudication of guilt following the revocation of Appellant's probation. Therefore, we lack jurisdiction to consider Appellant's second issue.

Factual Sufficiency of Evidence as to Punishment  

In his first issue, Appellant argues that the evidence is factually insufficient to support the trial court's sentence imposed upon him. ⁽²⁾ A review of the evidence for factual sufficiency is inappropriate with respect to the assessment of punishment. See Bradfield v. State, 42 S.W.3d 350, 351 (Tex. App.-Texarkana 2001, pet. ref'd); Kanouse v. State, 958 S.W.2d 509, 510 (Tex. App.-Beaumont 1998, no pet.); Flores v. State, 936 S.W.2d 478, 479 (Tex. App.-Eastland 1996, pet. ref'd). Hence, we decline to conduct a factual sufficiency review of the evidence on punishment.

The general rule is that as long as a sentence is within the statutory range, it will not be disturbed on appeal. See Gerhardt v. State, 935 S.W.2d 192, 196 (Tex. App.-Beaumont 1996, no pet.) (citing Jackson v. State, 680 S.W.2d 809, 814 (Tex. Crim. App. 1984)). The punishment for retaliation is a term of imprisonment ranging between two and ten years. See Tex. Pen. Code Ann. §§ 36.06, 12.34(a) (Vernon 2003). Since Appellant's ten year sentence falls within the permissible range set forth by the legislature, we will not disturb it. Appellant's first issue is overruled.

Conclusion  

Having overruled Appellant's first issue, we affirm the portion of the trial court's judgment related thereto. The remainder of this appeal is dismissed for want of jurisdiction.    

DIANE DEVASTO

Justice

Opinion delivered February 18, 2004.

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

(DO NOT PUBLISH)

1.

Appellant's claim of ineffective assistance of counsel does not relate to any matter occurring after the trial court's adjudication of guilt.

2.

Article 42.12 § 5(b) provides that "[a]fter an adjudication of guilt, all proceedings, including assessment of punishment...and defendant's appeal continue as if the adjudication of guilt had not been deferred." Tex. Code. Crim. Proc. Ann. art. 42.12 § 5(b). Thus, our consideration of Appellant's contention that the evidence was factually insufficient to support the sentence imposed is, for jurisdiction purposes, appropriate.