In The
Court of Appeals
For The
First District of Texas
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NO. 01-01-01098-CR
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JAMES MICHAEL TURNER, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 176th District Court
Harris County, Texas
Trial Court Cause No. 721119
Appellant, James Michael Turner, challenges his adjudication for indecency with a child. Appellant claims the trial court violated appellant's due process rights under the Fourteenth Amendment to the United States Constitution by adjudicating appellant guilty on finding that he had violated the terms of his community supervision. We dismiss the appeal for want of jurisdiction.
Background
Appellant was charged with aggravated sexual assault of a child, then age 11. In October 1996, appellant pleaded guilty to the reduced felony offense of indecency with a child. Pursuant to an agreement with the State, the trial court deferred adjudication and ordered a 10-year term of community supervision. Appellant was required to register as a sex offender, to perform 300 hours of community service, and to abide by 21 other conditions of community supervision. (1) See Tex. Code Crim. Proc. Ann. art. 42.12 § 5(a) (Vernon Supp. 2002). Appellant was admonished that he would have no right to appeal if the trial court later adjudged appellant guilty. See Tex. Code Crim. Proc. Ann. art. 42.12 § 5(b) (Vernon Supp. 2002). Appellant did not appeal the trial court's ruling deferring guilt.
In October 2001, on considering the State's motion that appellant had violated four conditions of his community supervision, the trial court revoked appellant's community supervision, adjudged him guilty, and assessed punishment at 10 years in prison.
Jurisdiction
Appellant's sole contention on appeal is that the trial court deprived him of due process of law guaranteed by the Fourteenth Amendment to the United States Constitution by conducting a meaningless hearing and arbitrarily finding a violation of community supervision in adjudging appellant guilty.
Article 42.12, section 5(b) of the Code of Criminal Procedure governs adjudication of guilt on violation of community supervision and reads in part 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. 2002) (Emphasis added.).
Article 42.12, section 5(b) deprives this Court of jurisdiction to consider any appeal from the trial court's determination to proceed to adjudicate under that statute. See Connolly v. State, 983 S.W.2d 738, 741 (Tex. Crim. App. 1999); compare Kirtley v. State, 56 S.W.3d 48, 51 (Tex. Crim. App. 2001) (recognizing appeal from punishment phase following adjudication of guilt). The prohibition in article 42.12, section 5(b) means exactly what it says. Olowosuko v. State, 826 S.W.2d 940, 942 (Tex. Crim. App. 1992). The trial court's decision to proceed to adjudicate is, therefore, "one of absolute discretion and not reviewable." Williams v. State, 592 S.W.2d 931, 932-33 (Tex. Crim. App. [Panel Op.] 1979). In challenging the decision to adjudicate as a deprivation of due process, appellant contends the trial court cursorily considered appellant's response to the grounds the State alleged in moving to adjudicate guilt. Appellant focuses on the condition of his community supervision that forbade any contact between him and the complainant. Appellant claims that contact with the complainant was inevitable and well-explained because the complainant lived in the same residence as his daughter, with whom appellant had visitation rights. We may not consider these arguments challenging the trial court's decision to adjudicate due to article 42.12, section 5(b).
Conclusion
We dismiss appellant's appeal for want of jurisdiction.
Elsa Alcala
Justice
Panel consists of Justices Taft, Alcala, and Price. (2)
Do not publish. Tex. R. App. P. 47.4. 1. The trial court added additional conditions during appellant's community
supervision.
2. The Honorable Frank C. Price, former Justice, Court of Appeals, First District
of Texas at Houston, participating by assignment.