Opinion
No. 05-07-00956-CR
Opinion issued April 25, 2008. DO NOT PUBLISH. Tex. R. App. P. 47
On Appeal from the 194th Judicial District Court, Dallas County, Texas, Trial Court Cause No. F01-76222-RM.
Before Justices MORRIS, WHITTINGTON, and O'NEILL.
MEMORANDUM OPINION
In this case, Tory Breon Hunt waived a jury and pleaded guilty to aggravated assault. Pursuant to a plea agreement, the trial court deferred adjudicating guilt, placed appellant on four years' community supervision, and assessed a $1,500 fine. The State later moved to adjudicate guilt. At a hearing, the trial court granted the motion, adjudicated appellant guilty, and assessed punishment at four years' imprisonment. In two points of error, appellant contends the trial court did not have jurisdiction to adjudicate his guilt and he did not receive effective assistance of counsel. We dismiss the appeal for want of jurisdiction. The background of the case and the evidence adduced at trial are well known to the parties, and therefore we limit recitation of the facts. We issue this memorandum opinion pursuant to Texas Rule of Appellate Procedure 47.1 because the law to be applied in the case is well settled. In his first point of error, appellant argues the trial court did not have jurisdiction to revoke his community supervision because, although the capias was issued before the expiration of the probationary term, the State's motion to revoke was filed after expiration of the probationary term. The State responds the trial court had jurisdiction to adjudicate appellant's guilt because the motion to revoke was filed on the same date the capias was filed. An attack on the trial court's jurisdiction to adjudicate guilt is an attack on the decision to adjudicate, and it may not be advanced on appeal. See Davis v. State, 195 S.W.3d 708, 712 (Tex.Crim.App. 2006). We dismiss appellant's first point of error. In his second point of error, appellant argues he was denied effective assistance of counsel at the adjudication hearing because counsel incorrectly advised that appellant could be continued on deferred adjudication community supervision. Due to the date appellant's guilt was adjudicated, our jurisdiction to consider the merits of a claim that arose before the act of adjudication is limited to matters that directly and distinctly relate to punishment. See Hogans v. State, 176 S.W.3d 829, 834 (Tex.Crim.App. 2005). Here, appellant's complaint challenges the trial court's decision to adjudicate guilt and is not permitted. See Olowosuko v. State, 826 S.W.2d 940, 942 (Tex.Crim.App. 1992). We dismiss appellant's second point of error. Because there are no issues before us over which we have jurisdiction, we dismiss the appeal.
Prior to June 15, 2007, no appeal could be taken from the trial court's determination to adjudicate guilt. See Act of May 7, 1975, 64th Leg., R.S., ch. 231, § 1, 1975 Tex. Gen. Laws 572, 572-73, amended by Act of May 28, 2007, 80th Leg., R.S., ch. 1308, § 5, 2007 Tex. Gen. Laws 4395, 4397 (intervening amendments not included). Complaints could be raised regarding issues unrelated to the adjudication of guilt. See Hargesheimer v. State, 182 S.W.3d 906, 911 (Tex.Crim.App. 2006). Effective June 15, 2007, article 42.12, section 5(b) was amended to provide for appellate review of the decision to adjudicate guilt in the same manner as the revocation of regular community supervision under article 42.12, section 21. See Act of May 28, 2007, 80th Leg., R.S., ch. 1308, § 5, 2007 Tex. Gen. Laws 4395, 4397. Appellant was adjudicated guilty before the effective date of the amendment; therefore, the amendment to article 42.12, section 5(b) does not apply to his appeal. See Act of May 28, 2007, 80th Leg., R.S., ch. 1308, § 53, 2007 Tex. Gen. Laws 4395, 4413.