Tony Anthony Johnson v. State

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03-94-00589-CR

Tony Anthony Johnson, Appellant

The State of Texas, Appellee

FROM THE CRIMINAL DISTRICT COURT NO. 2 OF DALLAS COUNTY

NO. F89-A1378-JI, HONORABLE JOHN F. ONION, JUDGE PRESIDING

Appellant Tony Anthony Johnson appeals from the judgment reassessing his punishment that was entered when he was resentenced pursuant to a federal court order. We will overrule appellant's points of error and affirm the judgment of the trial court reassessing punishment at imprisonment for seventy-five years.

We summarize the procedural history of the case. Appellant entered a plea of guilty to a charge of burglary of a habitation and a plea of true to enhancement allegations that he had been convicted of two prior felony offenses. The trial court rejected the plea bargain agreement, deferred adjudication of guilt, and placed appellant on probation for ten years. Thereafter, the trial court, pursuant to the State's motion, found appellant had violated the conditions of probation, proceeded to adjudicate appellant's guilt, and assessed punishment at life imprisonment and a fine of $1,000. Appellant appealed and the judgment was affirmed by the Dallas Court of Appeals. The Court of Criminal Appeals refused appellant's petition for discretionary review and later denied appellant's post-conviction writ of habeas corpus. Appellant then filed a petition for writ of habeas corpus in the federal district court. The United States District Court ordered the dismissal of the charges against appellant unless the State within ninety days afforded appellant "a new sentencing hearing before a neutral, detached and impartial judicial officer."

The Honorable John F. Onion, Retired Presiding Judge of the Court of Criminal Appeals, was appointed to conduct the resentencing hearing. At that hearing, appellant moved to withdraw his guilty plea and stated he wanted to plead not guilty. Appellant did not say whether he wanted a jury trial. Appellant's motion was denied. The State offered evidence upon which the court could base punishment for the resentencing of appellant. The court reassessed punishment and resentenced appellant. Appellant filed a motion for new trial alleging that his guilty plea had been involuntary and that his "judicial confession," which was admitted in evidence when he entered his guilty plea, was a "fraud." The motion for new trial was overruled.

In his first point of error, appellant asserts that: "The trial court erred in not permitting appellant to withdraw his plea of guilty after the court rejected a plea bargain agreement." The federal court ordered that appellant be afforded "a new sentencing hearing before a neutral, detached and impartial judicial officer." The federal court did not order that appellant be granted a new trial. Therefore, the trial court at the resentencing hearing properly denied appellant's motion to withdraw his guilty plea.⁽¹⁾ We overrule appellant's first point of error.

In his second point of error, appellant urges that: "Appellant's plea of guilty was rendered involuntary by the failure of his appointed counsel to provide effective assistance." If appellant desired to have this issue reviewed, he had the opportunity to present it to the Dallas Court of Appeals in his original appeal. See Sanders v. State, 832 S.W.2d 719, 723 (Tex. App.--Austin 1992, no pet.). The judgment from which appellant is now appealing was rendered after the federal court ordered only a resentencing hearing. The issue raised in this point of error is not properly before us for review because it is untimely presented. Appellant's second point of error is overruled.

Appellant's last point of error is that: "The appellant was denied due process of law by the trial court's adjudication of guilt without sufficient evidence for a rational trier of the facts to conclude by a preponderance of the evidence that appellant violated a term or condition of his deferred adjudication probation." The appeal of this point of error will be dismissed because it presents a matter that may not be appealed. The statute relating to the adjudication of guilt after an alleged breach of conditions of deferred adjudication provides that:

On violation of a condition . . . .

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) (West Supp. 1996). The Court of Criminal Appeals construing this provision said:

[T]he Court has held from the beginning of deferred adjudication practice that the Legislature meant what it said in Article 42.12, § 5(b): "No appeal may be taken from this determination [to proceed with an adjudication of guilt]." Williams v. State, 592 S.W.2d 931 (Tex.Cr.App. 1979) (decision to proceed with an adjudication of guilt is one of absolute non-reviewable discretion); accord: Wright v. State, 592 S.W.2d 604 (Tex.Cr.App. 1980). Neither the Legislature nor this court has changed that prohibition. See Russell v. State, 702 S.W.2d 617 (Tex.Cr.App. 1985); Article 42.12, § 5(b), supra.

Olowosuko v. State, 826 S.W.2d 940, 942 (Tex. Crim. App. 1992); Edwards v. State, 835 S.W.2d 660, 663 (Tex. App.--Dallas 1992, no pet.). Because the matter in this point of error may not be appealed, its proper disposition is to dismiss rather than affirm. Phynes v. State, 828 S.W.2d 1, 2 (Tex. Crim. App. 1992). The appeal of this point of error is dismissed.

The judgment of the trial court is affirmed.

Carl E. F. Dally, Justice

Before Chief Justice Carroll, Justices Davis^* and Dally^**

Affirmed

Filed: October 2, 1996

Do Not Publish

^* Before Tom G. Davis, Judge (retired), Court of Criminal Appeals, sitting by assignment. See Tex. Gov't Code Ann. § 74.003(b) (West 1988).

^** Before Carl E. F. Dally, Judge (retired), Court of Criminal Appeals, sitting by assignment. See Tex. Gov't Code Ann. § 74.003(b) (West 1988).

1. We note that when appellant was first tried and entered his plea of guilty, the original trial judge rejected the plea bargain agreement and told appellant that he could consult with his counsel and decide whether he wanted to withdraw his guilty plea. After conferring with his counsel, appellant advised the original trial court that he did not want to withdraw his guilty plea and that he "wished to plead guilty."

e issue raised in this point of error is not properly before us for review because it is untimely presented. Appellant's second point of error is overruled.