IN THE
TENTH COURT OF APPEALS
No. 10-07-00149-CR
Jeffrey Alan Lamey,
Appellant
v.
The State of Texas,
Appellee
From the 19th District Court
McLennan County, Texas
Trial Court No. 2007-845-C1
MEMORANDUM Opinion
Lamey attempts to appeal the trial court’s adjudication of Lamey’s guilt after the court granted Lamey deferred-adjudication community supervision for aggravated sexual assault. See Tex. Penal Code Ann. § 22.021(a) (Vernon Supp. 2007); Tex. Code Crim. Proc. Ann. art. 42.12, § 5(a) (Vernon Supp. 2007).
Under the law in effect at the time of the trial court’s determination to adjudicate Lamey’s guilt, “No appeal may be taken from this determination.” Act of May 29, 1995, 74th Leg., R.S., ch. 318, § 53, sec. (b), 1995 Tex. Gen. Laws 2734, 2750 (amended 2007) (current version at Tex. Code Crim. Proc. Ann. art. § 42.12, § 5(b) (Vernon Supp. 2007)). That “language means that ‘the courts of appeals do not have jurisdiction to consider claims relating to the trial court’s determination to proceed with an adjudication of guilt on the original charge.’” Davis v. State, 195 S.W.3d 708, 710 (Tex. Crim. App. 2006) (quoting Hogans v. State, 176 S.W.3d 829, 832 (Tex. Crim. App. 2005)); accord Phynes v. State, 828 S.W.2d 1, 2 (Tex. Crim. App. 1992); see Ex parte Hernandez, 705 S.W.2d 700, 702 n.4 (Tex. Crim. App. 1986). “Thus, if an appeal raises a claim of purported error in the adjudication of guilt determination, a court of appeals should dismiss that claim without reaching the merits.” Hogans at 832.
Lamey’s issues both concern only the trial court’s determination to adjudicate Lamey’s guilt. Lamey’s first issue is that his “right to due process was violated, where the decision to adjudicate was based on” certain conduct. (Br. at iii, 2.) Lamey’s second issue is that the trial court “abused its discretion in adjudicating appellant’s guilt.” (Id. at iii, 6.)
Former Section 5(b) bars our consideration of Lamey’s issues.[1] We dismiss Lamey’s issues.
Having dismissed Lamey’s issues, we affirm.
TOM GRAY
Chief Justice
Before Chief Justice Gray,
Justice Vance, and
Justice Reyna
(Justice Vance concurs in the judgment)
Affirmed
Opinion delivered and filed January 23, 2008
Do not publish
[CR25]
[1] In Lamey’s issues, he argues that former Article 42.12, Section 5(b), does not deprive this Court of jurisdiction over his attempted appeal. In Lamey’s first issue, he argues that former Section 5(b) does not bar appeals of deprivations of due process of law. Former Section 5(b), however, does bar even jurisdictional complaints. Davis, 195 S.W.3d at 710.
In Lamey’s second issue, he argues that the application of former Section 5(b) deprives him of due process of law and the equal protection of law. He argues that we should instead apply the current version of Article 42.12, Section 5(b), which provides that the determination to adjudicate guilt “is reviewable in the same manner as a revocation hearing conducted under Section 21 of this article in a case in which an adjudication of guilt had not been deferred.” Tex. Code Crim. Proc. Ann. art. 42.12, § 5(b); see id. § 21 (Vernon Supp. 2007). The date of the hearing on the motion to adjudicate Lamey’s guilt determines whether we have jurisdiction over Lamey’s attempted appeal under Section 5(b). The act amending Section 5(b) provides, “Subsection (b), Section 5, Article 42.12, Code of Criminal Procedure, as amended by this Act, applies to a hearing conducted under that section on or after the effective date of this Act, regardless of when the adjudication of guilt was originally deferred or when the offense giving rise to the grant of deferred adjudication community supervision was committed.” Act of May 28, 2007, 80th Leg., R.S., ch. 1308, § 53, 2007 Tex. Sess. Law Serv. 4404, 4421 (Vernon). The act took effect on June 15, 2007. Id. § 68, 2007 Tex. Sess. Law Serv. at 4422-23; 2007 Tex. Sess. Law Serv. at 4423. Lamey’s hearing took place on April 25, 2007. Because the hearing took place before the effective date of the amendment, we lack jurisdiction over Lamey’s attempted appeal. Such statutory changes in procedural law generally do not implicate due process. See, e.g., Ex parte Maddox, No. 05-00-01065-CR, 2000 Tex. App. LEXIS 7324, at *3-*4 (Tex. App.—Dallas Oct. 31, 2000, pet. ref’d) (not designated for publication) (eligibility for appeal bond); see also, e.g., Bolden v. State, No. 06-07-00136-CR, 2008 Tex. App. LEXIS 57, at *2-*3 (Tex. App.—Texarkana Jan. 4, 2008, no pet. h.) (not designated for publication) (mem. op.); Garner v. State, Nos. 13-06-513-CR & 13-06-514-CR, 2007 Tex. App. LEXIS 7189, at *3-*4 & nn. (Tex. App.—Corpus Christi Aug. 30, 2007, no pet.) (not designated for publication) (mem. op.). As to equal protection, moreover, Lamey was treated the same as those similarly situated defendants, whose hearings took place before the effective date of the amendment. See, e.g., Sonnier v. State, 913 S.W.2d 511, 520-21 (Tex. Crim. App. 1995).
247.5pt 3.75in 292.5pt 315.0pt 337.5pt 5.0in 382.5pt 405.0pt 427.5pt 6.25in'> A majority of this Court has previously found unassigned error. E.g., Hailey v. State, 50 S.W.3d 636 (Tex. App.—Waco 2001), rev’d, 87 S.W.3d 118 (Tex. Crim. App. 2002); In re B.L.D., 56 S.W.3d 203 (Tex. App.—Waco 2001) (per curiam), rev’d, 113 S.W.3d 340 (Tex. 2003). The Court has been reversed. E.g., Hailey v. State, 87 S.W.3d 118, 121-22 (Tex. Crim. App. 2002), cert. denied, 538 U.S. 1060 (2003); In re B.L.D., 113 S.W.3d 340, 350-51 (Tex. 2003), cert. denied sub nom. Dossey v. Tex. Dep’t of Protective & Reg. Servs., 124 S. Ct. 1674 (2004). There is virtually no such thing as unassigned error. Id. There is none to be addressed here.
A majority of this Court has previously found fundamental error. E.g., Rushing v. State, 50 S.W.3d 715, 722-25 (Tex. App.—Waco 2001), aff’d on other grounds, 85 S.W.3d 283, 284-87 (Tex. Crim. App. 2002); B.L.D., 56 S.W.3d at 214-15; In re J.F.C., 57 S.W.3d 66, 74 (Tex. App.—Waco 2001), rev’d, 96 S.W.3d 256 (Tex. 2002). The Court has been reversed and been held to have erred. E.g., Rushing v. State, 85 S.W.3d 283, 284-87 (Tex. Crim. App. 2002); B.L.D., 113 S.W.3d at 350-51; In re J.F.C., 96 S.W.3d 256, 272-74, 277-79 (Tex. 2002). There is almost no such thing as fundamental error. Mendez v. State, 138 S.W.3d 334, 340-42 (Tex. Crim. App. 2004); Saldano v. State, 70 S.W.3d 873, 887-89 (Tex. Crim. App. 2002); Paulson v. State, 28 S.W.3d 570, 573 (Tex. Crim. App. 2000) (reasonable doubt instruction not absolute systemic requirement). There is no fundamental error in the charge without egregious harm. Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985) (op. on reh’g). There is no fundamental error here.
The majority again finds unassigned and fundamental error here. I dissent.
TOM GRAY
Chief Justice
Dissenting opinion delivered and filed November 10, 2004
Publish