TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-00-00073-CR
Fernando Zuniga, Jr., Appellant
v.
The State of Texas, Appellee
FROM THE DISTRICT COURT OF TOM GREEN COUNTY, 119TH JUDICIAL DISTRICT
NO. CR93-0133-B, HONORABLE THOMAS J. GOSSETT, JUDGE PRESIDING
On September 1, 1993, appellant Fernando Zuniga, Jr., entered a guilty plea to the offense of delivering cocaine. The trial court deferred adjudication of guilt and placed appellant on community supervision for ten years. On January 26, 1999, the State filed a motion to revoke probation and to adjudicate appellant's guilt. The trial court found that appellant had violated a condition of community supervision by violating the laws of this State, adjudicated appellant's guilt, and assessed his punishment at imprisonment for twenty-five years.
Appellant's sole point of error is that: "The trial court abused its discretion when it denied appellant the right to receive notice of the allegations against him." This complaint is based on appellant's contention that the trial court conducted the revocation hearing less than seven days after the State amended its motion to revoke without the State showing good cause for the amendment. The Code of Criminal Procedure provides that "in a felony case, the State may amend the motion to revoke community supervision any time up to seven days before the date of the revocation hearing, after which time the motion may not be amended except for good cause shown." Tex. Code Crim. Proc. Ann. art. 42.12, § 21(b) (West Supp. 2000). The State filed an amended motion to revoke community supervision on October 29, 1999. Over appellant's objection, the trial court commenced hearing the amended motion to revoke on November 4, 1999. After the State offered the testimony of three witnesses, the trial court recessed the hearing. The hearing was continued on November 12, 1999. The State called one more witness and appellant testified and called four other witnesses. Appellant's claim is in essence that the trial court should not have adjudicated his guilt.
The Texas Code of Criminal Procedure provides:
On violation of a condition of community supervision imposed under . . . 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) (West Supp. 2000) (emphasis added); see Phynes v. State, 828 S.W.2d 1, 2 (Tex. Crim. App. 1992); Olowosuko v. State, 826 S.W.2d 940, 941-42 (Tex. Crim. App. 1992); Clark v. State, 997 S.W.2d 365, 367 (Tex. App.--Dallas 1999, no pet.).
Because no appeal may be taken from the trial court's adjudication of guilt, we dismiss the appeal for lack of jurisdiction.
Carl E. F. Dally, Justice
Before Justices Jones, Kidd and Dally*
Dismissed for Lack of Jurisdiction
Filed: August 31, 2000
Do Not Publish
* Before Carl E. F. Dally, Judge (retired), Court of Criminal Appeals, sitting by assignment. See Tex. Gov't Code Ann. § 74.003(b) (West 1998).
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On September 1, 1993, appellant Fernando Zuniga, Jr., entered a guilty plea to the offense of delivering cocaine. The trial court deferred adjudication of guilt and placed appellant on community supervision for ten years. On January 26, 1999, the State filed a motion to revoke probation and to adjudicate appellant's guilt. The trial court found that appellant had violated a condition of community supervision by violating the laws of this State, adjudicated appellant's guilt, and assessed his punishment at imprisonment for twenty-five years.
Appellant's sole point of error is that: "The trial court abused its discretion when it denied appellant the right to receive notice of the allegations against him." This complaint is based on appellant's contention that the trial court conducted the revocation hearing less than seven days after the State amended its motion to revoke without the State showing good cause for the amendment. The Code of Criminal Procedure provides that "in a felony case, the State may amend the motion to revoke community supervision any time up to seven days before the date of the revocation hearing, after which time the motion may not be amended except for good cause shown." Tex. Code Crim. Proc. Ann. art. 42.12, § 21(b) (West Supp. 2000). The State filed an amended motion to revoke community supervision on October 29, 1999. Over appellant's objection, the trial court commenced hearing the amended motion to revoke on November 4, 1999. After the State offered the testimony of three witnesses, the trial court recessed the hearing. The hearing was continued on November 12, 1999. The State called one more witness and appellant testified and called four other witnesses. Appellant's claim is in essence that the trial court should not have adjudicated his guilt.
The Texas Code of Criminal Procedure provides:
On violation of a condition of community supervision imposed under . . . 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) (West Supp. 2000) (emphasis added); see Phynes v. State, 828 S.W.2d 1, 2 (Tex. Crim. App. 1992); Olowosuko v. State, 826 S.W.2d 940, 941-42 (Tex. Crim. App. 1992); Clark v. State, 997 S.W.2d 365, 367 (Tex. App.--Dallas 1999, no pet.).