IN THE
TENTH COURT OF APPEALS
No. 10-02-00319-CR
DONALD EMICH,
Appellant
v.
THE STATE OF TEXAS,
Appellee
From the 40th District Court
Ellis County, Texas
Trial Court # 25685CR
MEMORANDUM OPINION
Donald Emich pled guilty under a plea-bargain agreement to injury to a child, a third-degree felony. The trial court placed him on three years’ deferred-adjudication community supervision. Three months later, in November 2001, the State filed a motion to adjudicate guilt alleging that Emich failed to report monthly to his probation officer and failed to pay fines and fees. In February 2002, under another plea-bargain agreement, the trial court amended the community-supervision order, continued Emich on community supervision, and required him to serve 180 days in jail. In June 2002, the State filed a second motion to adjudicate guilt alleging that Emich failed to abide by six provisions of his community supervision: to report to his probation officer, to allow his probation officer to visit him, to work and report any changes in employment, to perform community service, and to pay fines and fees. In October 2002, Emich pled “not true” to the allegations, and the trial court held an evidentiary hearing. The court granted the motion, adjudicated guilt, and sentenced him to ten years in prison.
On appeal, Emich complains that (1) the evidence that he violated provisions of the community-supervision order is insufficient, and (2) the motion to adjudicate guilt was not served on Emich or defense counsel, and the motion did not give fair notice of the grounds on which it was based.
Our initial inquiry is jurisdiction. State v. Roberts, 940 S.W.2d 655, 657 (Tex. Crim. App. 1996) (A court may sua sponte review its subject matter jurisdiction.). We believe that the Court of Criminal Appeals has directly addressed how we determine our jurisdiction in this instance. In Bayless v. State, speaking in a case involving an appeal under the former version of Rule 25.2(b)(3), the Court said:
Once a notice of appeal has been timely filed in a case, the Court of Appeals obtains jurisdiction over the case. Jones v. State, 796 S.W.2d 183, 186 (Tex. Crim. App. 1990). Thus, defects in the notice that do not affect whether the instrument filed with the clerk is actually a notice of appeal do not prevent the appellate court from having jurisdiction over the appeal. Instead, they might affect the matters that are cognizable by the appellate court. 43A George E. Dix & Robert O. Dawson, Texas Practice: Criminal Practice and Procedure § 43.252 (2d ed. 2001). We recognize that in the past we have addressed the issue of whether a notice conferred jurisdiction over a court of appeals when in fact a question of jurisdiction was not at issue. See, e.g., Davis v. State, 870 S.W.2d 43, 46 (Tex. Crim. App. 1994) (holding that the appellant's "general notice" of appeal under former Texas Rule of Appellate Procedure 40(b)(1) failed to confer jurisdiction on the Court of Appeals). Similarly, in the present case, the issue is not whether the jurisdiction of the Court of Appeals was invoked; it is whether the Court of Appeals had the power to address the merits of appellant's claims.
Bayless v. State, 91 S.W.3d 801, 803 n.2 (Tex. Crim. App. 2002). Thus, Emich’s notice of appeal conferred jurisdiction on this court. See Jones v. State, 796 S.W.2d 183, 186 (Tex. Crim. App. 1990) (“Once a notice of appeal has been filed in a case, the Court of Appeals has obtained jurisdiction of that cause. Art. V., § 6, Texas Constitution, confers jurisdiction of all non-death penalty cases on the courts of appeals.”). Furthermore, “A constitutional grant of appellate jurisdiction treats a right of appeal in criminal cases ‘as a remedy to revise the whole case upon the law and facts, as exhibited in the record.’” Carter v. State, 656 S.W.2d 468, 468-69 (Tex. Crim. App. 1983); see also Carroll v. State, 101 S.W.3d 454, 456 (Tex. Crim. App. 2003) ("Once jurisdiction of an appellate court is invoked, exercise of its reviewing functions is limited only by its own discretion or a valid restrictive statute."); State v. Lara, 924 S.W.2d 198, 201 n.3 (Tex. App.—Corpus Christi 1996, no pet.).
The question is: what claims may we review? Bayless, 91 S.W.3d at 803 n.2.
Article 42.12 § 5(b) represents a limitation on the exercise of our reviewing function. In a deferred-adjudication case, if the trial court determines, after a mandatory hearing, to adjudicate guilt because of a violation of the terms of community supervision, that decision is not appealable. Tex. Code Crim. Proc. Ann. art. 42.12, § 5(b) (Vernon Supp. 2004) (“No appeal may be taken from this determination.”); Olowosuko v. State, 826 S.W.2d 940, 942 (Tex. Crim. App. 1992) (citing Williams v. State, 592 S.W.2d 931 (Tex. Crim. App. 1979) (decision to proceed with an adjudication of guilt is one of absolute non-reviewable discretion)). If guilt is adjudicated, all proceedings thereafter “continue as if the adjudication of guilt had not been deferred.” Id.
This limitation on the right to raise an issue on appeal regarding the decision to adjudicate has been rather strictly applied by the Court of Criminal Appeals and the courts of appeals in cases attempting to raise a variety of claimed defects:
• proof of due diligence; Connolly v. State, 983 S.W.2d 738, 741 (Tex. Crim. App. 1999) (defendant may not raise on appeal contentions of error in the “adjudication of guilt process”);
• competency to stand trial; Nava v. State, 110 S.W.3d 491, 493 (Tex. App.—Eastland 2003, no pet.);
• voluntariness of plea of true to motion to adjudicate; Hargrave v. State, 10 S.W.3d 355, 357 (Tex. App.—Houston [1st Dist.] 1999, pet. ref’d);
• effectiveness of counsel during adjudication proceeding; Cooper v. State, 2 S.W.3d 500, 504 (Tex. App.—Texarkana 1999, pet. ref’d);
• sufficiency of the evidence to revoke community supervision; Leal v. State, 962 S.W.2d 652, 653 (Tex. App.—Corpus Christi 1998, no pet.);
• use of illegally seized evidence; Sanders v. State, 944 S.W.2d 448, 450 (Tex. App.—Houston [14th Dist.] 1997, no pet.);
• conditions of probation not specific enough to support revocation; Abdallah v. State, 924 S.W.2d 751, 754 (Tex. App.—Fort Worth 1996, pet. ref’d);
• failure to state reasons for revocation; Cole v. State, 931 S.W.2d 578, 580 (Tex. App.—Dallas 1995, pet. ref’d);
• denial of request for continuance; Collins v. State, 912 S.W.2d 864, 864 (Tex. App.—Beaumont 1995, no pet.).
On the other hand, the Court of Criminal Appeals in Olowosuko said:
The problem thus illuminated in a deferred adjudication context lies in a failure to identify the precise matter a defendant seeks to appeal. It is axiomatic that a party may appeal only that which the Legislature has authorized. Galitz v. State, 617 S.W.2d 949, at 951 (Tex. Cr. App. 1981). Therefore, an appellate court must sort out various rulings a trial court may make in the course of a deferred adjudication proceeding to determine those which the Legislature provided a right to appeal.
Olowosuko, 826 S.W.2d at 941. The First Court of Appeals has observed that minimum requirements of due process must be observed in probation (community supervision) revocation hearings. Osborne v. State, 845 S.W.2d 319, 321 (Tex. App.—Houston [1st Dist.] 1992, pet. ref’d). And, several courts of appeals have reviewed complaints that arose in adjudication proceedings. Gilbert v. State, 852 S.W.2d 623, 626 (Tex. App.—Amarillo 1992, no writ) (competency to stand trial); DeLeon v. State, 797 S.W.2d 186, 188 (Tex. App.—Corpus Christi 1990, no pet.) (motion untimely); Eldridge v. State, 731 S.W.2d 618, 619 (Tex. App.—Houston [1st Dist.] 1987, no pet.) (no meaningful hearing); Dahlkoetter v. State, 628 S.W.2d 255, 257 (Tex. App.—Amarillo 1982, no pet.) (judge’s authority to hold hearing). To date, we have reviewed only the question of a defendant’s competency to stand trial, following the Amarillo Court’s decision in Gilbert. Marbut v. State, 76 S.W.3d 742 746-47 (Tex. App.—Waco 2002, pet. ref’d).
Both of Emich’s issues concern matters related to the decision-to-adjudicate process. Thus, article 42.12 § 5(b) precludes our reviewing them. We dismiss issues one and two.
Having dismissed both of Emich’s issues, we affirm the judgment.
BILL VANCE
Justice
Before Chief Justice Gray,
Justice Vance, and
Justice Reyna
(Justice Gray dissenting)
Affirmed
Opinion delivered and filed March 17, 2004
Publish
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