Opinion
No. 12-03-00256-CR.
Opinion delivered March 17, 2004. DO NOT PUBLISH.
Appeal from the Second Judicial District Court of Cherokee County, Texas.
Panel consisted of WORTHEN, C.J., GRIFFITH, J. and DeVASTO, J.
MEMORANDUM OPINION
Kendall Glen Dennis ("Appellant") appeals the trial court's revocation of his deferred adjudication probation. Appellant raises two issues on appeal. We dismiss a portion of this appeal for want of jurisdiction and affirm the remainder.
BACKGROUND
Appellant was charged by indictment with burglary of a habitation and pleaded "guilty." The trial court deferred an adjudication of guilt and placed Appellant on community supervision for five years. On August 20, 1999, the State filed a motion to revoke Appellant's community supervision alleging that, among other things, Appellant had failed to report to his community supervision officer and had failed to complete 240 hours of community service as ordered by the trial court. Appellant pleaded "not true" to each of the allegations in the State's motion. Following a hearing, the trial court revoked Appellant's community supervision, adjudicated Appellant guilty of burglary of a habitation, and sentenced Appellant to imprisonment for twenty years. Appellant did not timely file an appeal following the trial court's judgment. The court of criminal appeals subsequently granted relief on Appellant's writ of habeas corpus permitting this appeal out-of-time.APPEAL OF REVOCATION OF DEFERRED ADJUDICATION PROBATION
In his first and second issues, Appellant argues that he received ineffective assistance of counsel. 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 740-741 (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. See also Phynes, 828 S.W.2d at 2. 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 the issue of ineffective assistance of counsel, insofar as that issue arises out of the trial court's decision to proceed with the adjudication of guilt following the revocation of Appellant's probation. Therefore, to the extent that Appellant's first and second issues relate to the trial court's decision to proceed with adjudication, we lack jurisdiction to consider them.