Opinion
No. 05-04-00187-CR
Opinion filed July 19, 2004. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the 265th Judicial Court Dallas County, Texas, Trial Court Cause No. F03-01239-R. Dismissed.
Before Justices RICHTER, FITZGERALD, and LANG.
OPINION
In a single issue, appellant, Wynell Russell, contends the trial court erred in granting a Motion to Proceed with an Adjudication of Guilt, thereby revoking deferred community supervision. Appellant argues that without an affirmative finding by the judge that appellant willfully refused to make sufficient efforts to legally acquire the resources to pay the cost of the court-ordered Sex Offender Clinical Assessment, the Motion to Proceed with an Adjudication of Guilt should have been denied. The State contends we do not have jurisdiction. For reasons that follow, we dismiss the appeal.
FACTUAL AND PROCEDURAL BACKGROUND
Appellant was indicted for aggravated sexual assault on a child under fourteen years of age. Pursuant to a plea agreement, appellant entered a plea of nolo contendere to the lesser-included offense of injury to a child and true to two enhancement paragraphs. After accepting his stipulation of evidence, the trial court found the evidence sufficient to substantiate a finding of guilt. The trial court then deferred adjudicating guilt and placed appellant on deferred community supervision for a period of three years. One of the conditions of community supervision was that appellant, within 30 days, complete a Sex Offender Clinical Assessment with a counseling agency approved by this court and pay all costs incurred for services. Almost three months later, the State filed a Motion to Proceed with Adjudication, alleging that appellant did not complete his Sex Offender Clinical Assessment by November 30, 2003, the date of completion required by the trial court. After a hearing at which appointed counsel represented appellant's interests, the court determined that appellant violated the terms and conditions of community supervision, adjudicated guilt, and assessed punishment at fifty-five years confinement. Appellant contends that his failure to attend the Sex Offender Clinical Assessment was due to his inability to pay the assessment fee, an affirmative defense. Appellant argues on appeal that, in the face of the affirmative defense, the State has the burden of proving his failure to pay the costs of the court-ordered Sex Offender Clinical Assessment was intentional. Appellant contends the State failed to carry its burden and cites case law addressing a probationer's right to appeal a revocation of probation. He claims the trial court abused its discretion in granting a Motion to Proceed with an Adjudication of Guilt after he raised the affirmative defense of inability to pay. The State responds by arguing that the trial court's decision to adjudicate guilt is not an appealable issue. See Tex. Code Crim. Proc. Ann. art. 42.12, § 5(b) (Vernon Supp. 2004). It contends that we do not have jurisdiction to consider appellant's complaint. We agree that we do not have jurisdiction of this appeal.STANDARD OF REVIEW AND APPLICABLE LAW
Since 1977, the Texas Legislature has provided that inability to make court-ordered payments is an affirmative defense to revocation of community supervision that the probationer must prove by a preponderance of the evidence. Ortega v. State, 860 S.W.2d 561, 567 (Tex.App.-Austin 1993, no pet.) The burden of proof for this defense is codified in article 42.12, section 21(c) of the Texas Code of Criminal Procedure, which provides:In a community supervision revocation hearing at which it is alleged only that the defendant violated the conditions of community supervision by failing to pay . . . community supervision fees, . . . the inability of the defendant to pay as ordered by the judge is an affirmative defense to revocation, which the defendant must prove by a preponderance of the evidence.Tex. Code Crim. Proc. Ann. art. 42.12, § 21(c) (Vernon Supp. 2004). The probationer has the burden of producing evidence and the ultimate burden of persuasion on the issue of inability to pay. Stanfield v. State, 718 S.W.2d 734, 737 (Tex.Crim.App. 1986). Section 21(c) relieved the State of the burden of demonstrating affirmatively that a probationer had the financial ability to make the court-ordered payment, but failed to do so. Id. However, the State has the burden of proving an alleged failure to pay fees and costs was intentional. Id.
APPLICATION OF LAW TO FACTS
The case before us presents a different context from that focused upon in Ortega, which addressed section 42.12, section 21(c). Here, appellant's complaint arises from the trial court's decision to adjudicate guilt. When the trial court initially imposed the terms of the community supervision, appellant had not yet been adjudged guilty. See Tex. Code Crim. Proc. Ann. art. 42.12, § 5(a) (Vernon Supp. 2004). Pursuant to article 42.12, section 5(a), a trial court judge may, after receiving a plea of nolo contendere, hearing the evidence, and finding that the evidence substantiates the defendant's guilt, defer further proceedings without entering an adjudication of guilt, and place the defendant on community supervision. Tex. Code Crim. Proc. Ann. art. 42.12, § 5(a) (Vernon Supp. 2004). Here, it is clear that the trial court followed the procedure dictated by article 42.12, section 5(a). The trial court found that the evidence substantiated appellant's guilt of injury to a child, but that the best interests of society and appellant would be served by deferring further proceedings without entering an adjudication of guilt. The court then ordered that appellant be placed on community supervision for a period of three years, subject to the terms and conditions imposed by law and by the court. The abuse of discretion standard of review, espoused by appellant, applies to an appeal from the revocation of "regular" probation, i.e., community supervision given after the judge has suspended imposition of a sentence. See Tex. Code Crim. Proc. Ann. art. 42.12, § 3 (Vernon Supp. 2004). Only under such circumstances would the defendant be authorized to raise the affirmative defense of inability to pay as provided in article 42.12, section 21(c). Appellant's case, on the other hand, is controlled by article 42.12, section 5(b) since he received deferred or unadjudicated community supervision. It is clear that no right to appeal exists for appellant. Article 42.12, section 5(b) provides:On a violation of a condition of probation imposed under Subsection (a) of this Section, the defendant is entitled to a hearing limited to the determination by the court 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). Substantial case law has supported the plain meaning of the statute, that no appeal may be taken from a trial court's determination to proceed with an adjudication of guilt. See, e.g., Connolly v. State, 983 S.W.2d 738, 741 (Tex.Crim.App. 1999) (following the plain meaning of article 42.12 § 5(b)); Olowosuko v. State, 826 S.W.2d 940, 942 (Tex.Crim.App. 1992) (upholding decision explaining that from the beginning of the deferred adjudication practice, the Legislature meant what it said in article 42.12, section 5(b)). Article 42.12, section 5(b) expressly allows an appeal of all proceedings after adjudication of guilt on the original charge. See Olowosuko, 826 S.W.2d at 941 (emphasis added). While appellants are free to avail themselves of the appellate process "[a]fter an adjudication of guilt . . . as if the adjudication of guilt had not been deferred," the statute clearly provides that the trial court's decision to proceed with an adjudication of guilt, is one of absolute discretion and not appealable. Williams v. State, 592 S.W.2d 931, 932 (Tex.Crim.App. 1979).