NO. 07-07-0392-CR
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL B
OCTOBER 29, 2008
______________________________
EDDIE RIOS A/K/A EDDIE RIOS WHITE, APPELLANT
V.
THE STATE OF TEXAS, APPELLEE
_________________________________
FROM THE COUNTY COURT OF HUTCHINSON COUNTY;
NO. 35,685; HONORABLE FAYE BLANKS, JUDGE
_______________________________
Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.
MEMORANDUM OPINION
Appellant, Eddie Rios, appeals from an adjudication of guilt entered by the trial court
on April 25, 2007. After hearing evidence on the issue of punishment, the trial court
assessed a term of confinement of 365 days in the Hutchinson County Jail. We dismiss
for want of jurisdiction.
Factual and Procedural Background
Appellant pleaded guilty, pursuant to a negotiated plea agreement, on July 19, 2006,
to the misdemeanor offense of resisting arrest. In accordance with the plea agreement,
the trial court deferred entering an adjudication of guilt and placed appellant on community
supervision for a period of one year. Appellant did not appeal the entry of the deferred
adjudication. Thereafter, the State filed its first amended motion to proceed with
adjudication on February 7, 2007. The State’s amended motion alleged appellant had 1)
failed to report to his supervision officer for the months of November and December 2006
and January 2007, 2) failed to pay his community supervision fee and his administration
fee, and 3) committed the offense of assault. The trial court conducted a hearing on the
issue of adjudication on March 27, 2007. During the hearing, appellant objected to the
receipt of evidence concerning the new offense, alleging that since the prosecuting
authority for the felony offense, the District Attorney for the 316th Judicial District, had not
sought an indictment and the restitution owed the victim had been made part of a plea
agreement on an unrelated felony, the evidence was precluded under the theory of double
jeopardy. The trial court overruled the objection and proceeded to hear the evidence. At
the conclusion of the hearing on the motion to adjudicate, the trial court adjudicated
appellant guilty of the underlying offense of resisting arrest. After a separate hearing on
punishment, held on April 25, 2007, the trial court assessed punishment at confinement
in the county jail for a period of 365 days. This appeal followed.
Through one issue appellant now claims that the trial court abused its discretion by
sentencing appellant to one year in jail because the State should have been barred from
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litigating the motion to adjudicate guilt based upon the doctrine of collateral estoppel. We
dismiss for want of jurisdiction.1
Analysis
The applicable provision of the Code of Criminal Procedure in force at the time of
appellant’s hearing controls the disposition of this case.2 This provision was amended and
is now codified as article 42.12 section 5(b) to provide that a defendant in an adjudication
proceeding has the same rights to a review of the trial court’s decision to adjudicate as any
other defendant in a revocation of community supervision proceeding. See TEX . CRIM .
PROC . CODE ANN . § 42.12(5)(b) (Vernon Supp. 2007). The new provision is applicable to
cases heard on or after June 15, 2007.
Accordingly, appellant’s rights to appeal the adjudication is governed by the former
statute. The Texas Court of Criminal Appeals has spoken to this issue and has uniformly
held that the trial court’s decision to adjudicate, under the former statute, was absolutely
discretionary and not subject to review. See Davis v. State, 195 S.W.3d 708, 710
1
We note that the alleged ground of error does not comport with the objection made
at trial. See TEX . R. APP. P. 33.1(a)(1). At trial appellant objected to the evidence based
on the theory of double jeopardy. In his brief appellant alleges that the State’s evidence
was barred under the theory of collateral estoppel. The two are not the same.
2
Former article 42.12 section 5(b) provided that a defendant was entitled to a
hearing limited to the issue of whether the court proceeds with adjudication. It further
provided that, “No appeal may be taken from this determination.” See Act of May 27,
1965, 59th Leg., R.S., Ch. 722, § 1, 1965 Tex. Gen. Laws 317, 489, amended by Act of
May 2, 1975, 64th Leg., R.S., Ch. 231, § 1, 1975 Tex. Gen. Laws 572, 572 amended by Act
of May 28, 2007, 80th Leg., R.S., Ch. 1308, § 5, 2007 Tex. Gen. Laws 4395, 4397 (current
version at Tex. Code Crim. Proc. Ann. art. 42.12 § 5(b) (Vernon Supp. 2007)) (citing
relevant statutory history).
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(Tex.Crim.App. 2006). Therefore, we have no jurisdiction to review the trial court’s decision
to adjudicate appellant guilty of the offense of resisting arrest.
However, appellant couches his error in terms of abuse of discretion in sentencing
appellant. This would seem to allow us to review the decision to assess appellant’s
punishment to one year in the county jail. See Hogans v. State, 176 S.W.3d 829, 833
(Tex.Crim.App. 2005). However, a closer read of the record reveals, that despite the
wording of appellant’s issue, the alleged error occurred during the adjudication phase of
the trial. As stated by the Hogans opinion, “the asserted error must directly and distinctly
concern the second phase; the claim must, on its face, relate to the sentence imposed, not
to the decision to adjudicate.” Id. at 834. Appellant is complaining of the admission of
evidence that occurred during the adjudication phase. As such, it is not appealable. Davis,
195 S.W.3d at 710. Accordingly, we must dismiss the appeal for want of jurisdiction.
Conclusion
Having determined we do not have jurisdiction to entertain this appeal, the same is
dismissed.
Mackey K. Hancock
Justice
Do not publish.
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