in Re Edward S. Hodges, III ( 2010 )

IN THE

TENTH COURT OF APPEALS

 

No. 10-10-00317-CR

In re Edward S. Hodges, III

Original Proceeding

MEMORANDUM  Opinion

            Edward S. Hodges, III, an inmate, filed a petition for writ of mandamus.  There are numerous procedural problems with the petition, but we use Rule 2 to look beyond those problems and deny the petition.  See Tex. R. App. P. 2.

            Hodges’s “Motion Requesting Leave to Proceed In Forma Pauperis” is dismissed as moot.

                                                                        TOM GRAY

                                                                        Chief Justice

Before Chief Justice Gray,

            Justice Reyna, and

            Justice Davis

Petition denied

Motion dismissed

Opinion delivered and filed September 15, 2010

[OT06]

60;                                    

      Appellant Tryon appeals from a judgment of the trial court adjudicating guilt, revoking his probation, and sentencing him to three years in the Texas Department of Criminal Justice.

      On March 20, 1992, Appellant pled guilty to burglary of a building. On May 29 the trial court found there was sufficient evidence upon which a finding of guilt could be made, but deferred adjudication and placed Appellant on probation for three years and a $300 fine.

      On August 5, 1994, the State filed a motion to proceed with adjudication of guilt which alleged that Appellant had violated seven conditions of his probation. On September 7, after Appellant entered a plea of true to the allegations of probation violations, the trial court entered an adjudication of guilt, found that Appellant had violated his conditions of probation, then sentenced him to three years in prison and a $300 fine.

      Appellant appeals on one point of error: "There was insufficient evidence to show that Appellant violated the terms and conditions of his probation."

      Specifically Appellant argues that: (1) he has the right to appeal from an order adjudicating guilt; and (2) there must be some evidence of violations of terms of probation even though Appellant pled true to the violations.

      In deferred adjudication proceedings, no appeal may be taken from a determination to proceed with adjudication of guilt. Tex. Code Crim. Proc. Ann. art. 42.12 § 5(b); Castro v. State, 807 S.W.2d 417, 418 (Tex. App.—Houston [14th Dist.] 1991, pet. ref'd); Olowosuko v. State, 826 S.W.2d 940, 941 (Tex. Crim. App. 1992).

      Article 42.12 § 5(b), however, expressly allows an appeal of all proceedings after adjudication of guilt on the original charge. Olowosuko, supra.

      Appellant's point asserts the evidence was insufficient to show that Appellant violated the terms and conditions of his probation, and that there must be some evidence to show that he violated same.

      A defendant's plea of "true" to allegations that he violated a condition of probation, standing alone, is sufficient to support a revocation of probation. The sufficiency of the evidence cannot be challenged in the face of a plea of true. Cole v. State, 578 S.W.2d 127, 128 (Tex. Crim. App. 1979).

      Appellant's point and contentions are overruled. The judgment is affirmed

                                                                               FRANK G. McDONALD

                                                                               Chief Justice (Retired)

Before Justice Cummings,

      Justice Vance, and

      Chief Justice McDonald (Retired)

Affirmed

Opinion delivered and filed June 19, 1996

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