Brewer v. State

Full title: JOHNNY LaSALLE BREWER, JR., Appellant, v. THE STATE OF TEXAS, Appellee

Court: Court of Appeals of Texas, Tenth District, Waco

Date published: Jul 12, 2006

No. 10-05-00261-CR (Tex. App. Jul. 12, 2006)

Opinion

No. 10-05-00261-CR

Opinion delivered and filed July 12, 2006. Concurring opinion delivered and filed July 12, 2006. DO NOT PUBLISH.

Appeal from the 13th District Court, Navarro County, Texas, Trial Court No. 27500. Affirmed.

Before Cheif Justice GRAY, Justice VANCE, and, Justice REYNA (Chief Justice GRAY concurring)

MEMORANDUM OPINION

BILL VANCE, Justice.

Upon pleading guilty to the offense of injury to a child, Johnny Brewer was placed on deferred adjudication community supervision (probation) on November 6, 2001 for ten years. Because the underlying offense included an attempted sexual assault of a child, stringent probation terms were added, including that Brewer not be in close proximity to any person younger than 17 and that he must remove himself from circumstances causing him to come near such persons. Another term was that Brewer had to submit to polygraph testing on a quarterly basis. At a polygraph examination, Brewer allegedly admitted to the polygraph examiner that he had had sexual contact with two female minor children. The State moved to revoke Brewer's deferred adjudication probation, and after an evidentiary hearing, the trial court adjudicated Brewer guilty and sentenced him to ten years in prison. The trial court certified that Brewer's case was not a plea bargain and that he had the right of appeal. Brewer filed a general notice of appeal. In his first two issues, Brewer alleges that the trial court abused its discretion because the evidence that he had violated a condition of probation was insufficient. Brewer's third issue asserts that his admissions to the polygraph examiner were inadmissible because the polygraph examination was not voluntary — it was a condition of probation — and Brewer was not given Miranda warnings. An appeal of the trial court's decision to adjudicate guilt is prohibited by article 42.12, § 5(b) of the Code of Criminal Procedure. Hargesheimer v. State, 182 S.W.3d 906, 909, 913 (Tex.Crim.App. 2006); see TEX. CODE CRIM. PROC. ANN. art. 42.12, § 5(b) (Vernon Supp. 2005); see also Roberts v. State, 141 S.W.3d 685, 685-86 (Tex.App.-Waco 2004, pet. ref'd) (mem. op.); Emich v. State, 138 S.W.3d 398, 400-01 (Tex.App.-Waco 2004, no pet.) (mem. op.). Brewer's issues plainly indicate that he is appealing what is prohibited — the trial court's decision to adjudicate guilt. See Hargesheimer, 182 S.W.3d at 909, 913; cf. Trevino v. State, 174 S.W.3d 925, 927 (Tex.App.-Corpus Christi 2005, pet. ref'd) (defendant may appeal from judgment adjudicating guilt when issues raised relate not to adjudication of guilt but to punishment phase); Tatum v. State, 166 S.W.3d 362, 364 (Tex.App.-Fort Worth 2005, pet. ref'd) (same). We thus dismiss Brewer's three issues and affirm the trial court's revocation order. See Roberts, 141 S.W.3d at 686; Emich, 138 S.W.3d at 401.

TOM GRAY, Chief Justice.

CONCURRING OPINION

There is substantial confusion exhibited by the record and briefs in connection with this appeal. The State's brief references two case numbers, 27500 and 27552.¹ The reporter's record, however, covers one hearing for two cases numbered 27500 and 27502. The judgment in case number 27502 shows that Brewer was sentenced to 10 years in prison but the sentence was suspended and Brewer was placed on community supervision (commonly called probation); whereas the original judgment in case number 27500 shows the adjudication of guilt was deferred (commonly called deferred adjudication) and Brewer was placed on community supervision. The opinion, however, combines these two by the phrase "deferred adjudication community supervision (probation)." The opinion then proceeds to dispose of the appeal on a theory never argued by either party. As best I can tell from the record, I believe that the disposition is correct, but I believe that the better avenue for disposition would be to ask the parties to clarify the record. I note that the only notice of appeal in the record that I have been able to locate is in case number 27500. I also note, however, that the brief filed by Brewer's attorney and the issues presented therein would be entirely appropriate for the order revoking Brewer's probation in case number 27502 as opposed to a decision to adjudicate in case number 27500. And although the State correctly recites the procedural history of case number 27500 in its brief, it proceeds to strictly answer Brewer's issues relating to the revocation of "probation." So, notwithstanding the confusion created by the record and the parties' briefs, it appears that the disposition of the appeal as to case number 27500 is correct. Accordingly, I concur in the judgment of the Court.