Leonard David Luna v. State

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TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN





NO. 03-98-00529-CR

Leonard David Luna, Appellant

v.



The State of Texas, Appellee







FROM THE DISTRICT COURT OF SAN SABA COUNTY, 33RD JUDICIAL DISTRICT

NO. 4828, HONORABLE GUILFORD L. JONES, III, JUDGE PRESIDING

In November 1991, appellant Leonard David Luna pleaded guilty to theft. After finding that the evidence substantiated appellant's guilt, the district court placed him on deferred adjudication community supervision for five years. In August 1994, the State moved to adjudicate. A hearing on the motion was not held until July 1998, at which time the district court adjudged appellant guilty and assessed punishment at imprisonment for two years. The court suspended imposition of sentence and returned appellant to community supervision.

Appellant moved to dismiss the motion to adjudicate because the State did not use due diligence to apprehend him after filing the motion, thus allowing appellant's term of deferred adjudication supervision to expire before the motion was heard. Appellant relies on this Court's opinion in Connolly v. State, 955 S.W.2d 411 (Tex. App.--Austin 1997). After appellant's brief was filed, that opinion was reversed. Connolly v. State, 983 S.W.2d 738 (Tex. Crim. App. 1999). In its opinion, the court of criminal appeals held that appellate review of the State's diligence in prosecuting a motion to adjudicate is statutorily prohibited. Id. at 741; see Tex. Code Crim. Proc. Ann. art. 42.12, § 5(b) (West Supp. 1999) (no appeal may be taken from decision to proceed to adjudication).

We note that the district court granted appellant permission to appeal the due diligence issue. See Tex. R. App. P. 25.2(b)(3)(C). Such permission is meaningless in light of the Connolly opinion. The point of error is dismissed. See Connolly, 983 S.W.2d at 741; Olowosuko v. State, 826 S.W.2d 940, 942 (Tex. Crim. App. 1992).

Because appellant advances no point of error directed to the judgment of the district court, the judgment of conviction is affirmed. See Olowosuko, 826 S.W.2d at 942.





Mack Kidd, Justice

Before Chief Justice Aboussie, Justices Kidd and Patterson

Affirmed

Filed: May 6, 1999

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