Opinion
No. 08-05-00066-CR
July 7, 2005. DO NOT PUBLISH.
Appeal from the 394th District Court of Brewster County, Texas (Tc# 3654)
Before BARAJAS, C.J., McCLURE, and CHEW, JJ.
OPINION
Adrian Luis Fierro attempts to appeal from a conviction for the offense of possession of cocaine in an amount less than one gram. Because we conclude that Appellant is attempting to appeal the trial court's decision to adjudicate him guilty, we dismiss the appeal for want of jurisdiction. The record reflects that Appellant entered a negotiated plea of guilty on May 3, 2003. Appellant was placed on deferred adjudication community supervision and a $750 fine was assessed. The State subsequently filed several motions to adjudicate guilt ending in its third amended motion to adjudicate guilt. Appellant filed three motions to quash the State's third amended motion to adjudicate guilt. The trial court's certification of the defendant's right to appeal reflects that Appellant has no right to appeal the decision to adjudicate guilt. On March 11, 2005, the clerk's office notified Appellant's counsel that the certification reflects that Appellant has no right to appeal this specific issue and requested a response. Appellant's counsel responded with a letter brief persisting in the desire to challenge the trial court's rulings on the motions to quash the State's third amended motion to adjudicate guilt. Article 42.12, section 5(b) provides, in relevant part:
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. [Emphasis added].Tex. Code Crim. Proc. Ann. art. 42.12, § 5(b) (Vernon Supp. 2004-05). It is well established that a defendant whose deferred adjudication probation has been revoked and who has been adjudicated guilty of the original charge, may not raise on appeal contentions of error in the adjudication of guilt process. See, e.g., Connolly v. State, 983 S.W.2d 738, 740-41 (Tex.Crim.App. 1999) (reiterating what it characterized as the plain meaning of article 42.12, section 5(b) and holding that defendant was not permitted to appeal whether State utilized due diligence); Olowosuko v. State, 826 S.W.2d 940, 942 (Tex.Crim.App. 1992) (following adjudication of guilt, defendant not permitted to raise points of error related to alleged vagueness of conditions of probation or sufficiency of motion to revoke); Phynes v. State, 828 S.W.2d 1, 2 (Tex.Crim.App. 1992) (defendant not permitted to raise point of error concerning whether his right to counsel had been violated at adjudication hearing); Wright v. State, 592 S.W.2d 604, 606 (Tex.Crim.App. 1980) (holding that under article 42.12, section 5(b), "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) ("the trial court's decision to proceed with an adjudication of guilt, is one of absolute discretion and [is] not reviewable . . ."). Appellant's contentions pertaining to his motions to quash are included within section 5(b)'s prohibition. The trial court necessarily determined the adequacy of the State's allegations in determining whether to proceed to adjudication of Appellant's guilt. Thus, we conclude we lack jurisdiction to consider Appellant's sole issue on appeal. See Olowosuko, 826 S.W.2d at 942. We dismiss the appeal for want of jurisdiction. Consequently, we lack jurisdiction to address these complaints. As Appellant has expressed his intention to raise only these arguments, we dismiss the appeal for want of jurisdiction.