No. 01-03-01088-CR
Opinion issued October 14, 2004. DO NOT PUBLISH. Tex.R.App.P. 47.2(b).
On Appeal from the 184th District Court, Harris County, Texas, Trial Court Cause No. 938103.
Panel consists of Justices TAFT, JENNINGS, and BLAND.
JANE BLAND, Justice.
Jose Valera pleaded guilty to sexual assault of a child pursuant to a plea bargain agreement. The trial court deferred adjudication of Valera's guilt and placed him on community supervision for 10 years. About five months later, the State moved to adjudicate Valera's guilt, alleging that Valera had violated a condition of his community supervision. Following a hearing, the trial court adjudicated Valera's guilt and assessed punishment at 20 years' confinement. In two issues, Valera contends that the State (1) violated the Confrontation Clause of the United States Constitution and the Texas Constitution by placing him on deferred adjudication and (2) lacked legally sufficient evidence to adjudicate guilt. We dismiss the appeal for lack of jurisdiction.
Background
Valera, a 27-year-old man, entered a relationship with a 14-year-old female, the daughter of his wife's best friend. His wife asked him to move out of the house. About five months after the trial court placed him on community supervision, Valera broke a window at his wife's house and entered the house without her permission. The State moved to adjudicate guilt, alleging that Valera unlawfully, and with notice that entry was forbidden, intentionally and knowingly entered and remained in the habitation of another. The court adjudicated Valera's guilt and assessed punishment at 20 years' confinement. Confrontation Clause
In his first issue, Valera asserts that the State violated the Confrontation Clause of the United States Constitution and the Texas Constitution by placing him on deferred adjudication to avoid making his accuser testify against him, and then moving to adjudicate guilt based on insufficient evidence. U.S. Const. amend. VI; Tex. Const. art. I, § 10. Valera states that the young girl would have testified that their relationship was consensual. The State contends that we lack jurisdiction to consider the merits of this issue. We agree. Valera's confrontation clause challenge is a complaint of a denial of his right to confrontation by his accuser at the original proceeding. Valera contends that he agreed to a plea because the complainant's mother did not want her to testify, even though had she testified, she would have admitted that the relationship was consensual. Valera, however, cannot appeal errors from the original plea proceeding in a subsequent appeal from an adjudication of guilt hearing. Rather, "[a] defendant placed on deferred adjudication community supervision may raise issues relating to the original plea proceeding . . . only in appeals taken when the deferred adjudication community supervision is first imposed." Manuel v. State, 994 S.W.2d 658, 661-62 (Tex.Crim.App. 1999); Delangel v. State, 132 S.W.3d 491, 493 (Tex.App.-Houston [1st Dist.] 2004, no pet.). Valera did not appeal the constitutionality of his deferred adjudication at the time the trial court imposed it. The constitutionality of Valera's deferred adjudication relates to the original plea proceedings, we hold that we do not have jurisdiction to consider this issue. See Manuel, 994 S.W.2d at 661-62. Adjudication of Guilt
In his second issue, Valera contends that the trial court erred in revoking its deferred adjudication order. Essentially, Valera challenges the sufficiency of the evidence to support the court's finding that he violated the terms and conditions of his community supervision. The Texas Code of Criminal Procedure provides that a defendant may not appeal a trial court's determination to proceed with an adjudication of guilt after the court concludes that the defendant failed to comply with the conditions of community supervision. Tex. Code Crim. Proc. Ann. art. 42.12 § 5(b) (Vernon Supp. 2004-2005). A challenge to the sufficiency of the evidence is not appealable, because it relates to the determination by the court of whether it proceeds with an adjudication of guilt on the original charge." See id.; see also Connolly v. State, 983 S.W.2d 738, 741 (Tex.Crim.App. 1999); Phynes v. State, 828 S.W.2d 1, 2 (Tex.Crim.App. 1992); Olowosuko v. State, 826 S.W.2d 940, 942 (Tex.Crim.App. 1992); Delangel, 132 S.W.3d at 493; Sugar v. State, 132 S.W.3d 550, 551 (Tex.App.-Houston [1st Dist.] 2004, no pet.) (holding that a defendant may not appeal a trial court's decision to adjudicate guilt). We therefore hold that we do not have jurisdiction to consider the merits of Valera's second issue. Conclusion
We conclude that we have no jurisdiction to review Valera's complaints. We therefore dismiss the appeal for want of jurisdiction.