NO. 12-00-00181-CR
IN THE COURT OF APPEALS
TWELFTH COURT OF APPEALS DISTRICT
TYLER, TEXAS
ROBERT FRANKLIN CALDWELL,§ APPEAL FROM THE 7TH
APPELLANT
V.§ JUDICIAL DISTRICT COURT OF
THE STATE OF TEXAS,
APPELLEE§ SMITH COUNTY, TEXAS
PER CURIAM
Robert Franklin Caldwell ("Appellant") appeals the revocation of his probation and adjudication of guilt for which he was sentenced to twenty-five years of confinement. Appellant raises one issue on appeal. Since we are without jurisdiction to consider this issue, we dismiss Appellant's appeal.
Background
Pursuant to a plea bargain with the State of Texas (the "State"), Appellant pled guilty to aggravated assault. The court deferred finding Appellant guilty and placed him on probation for a period of ten years. On February 9, 2000, the State filed a motion to revoke Appellant's probation and to proceed to adjudication, alleging that Appellant had violated the terms of his probation. A hearing was held on the State's motion to revoke and the court found that Appellant had violated the terms of his probation as alleged. The trial court revoked Appellant's probation, proceeded to adjudicate Appellant guilty of aggravated assault and assessed Appellant's punishment at twenty-five years of confinement. On appeal, Appellant contends that the trial court did not act as a neutral and detached magistrate in that it had predetermined the result of the hearing on the State's motion to adjudicate. (1)
Appealing Revocation of
Deferred Adjudicated Probation Texas Code of Criminal Procedure Article 42.12 section 5(b) governs the situation at issue. Article 42.12 section 5(b) states:
On violation of a condition of community supervision imposed under Subsection (a) of 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. (Emphasis added).
Tex. Code. Crim. Proc. Ann. art. 42.12 § 5(b) (Vernon Supp. 2001).
In Connolly v. State, 983 S.W.2d 738 (Tex. Crim. App. 1999), the Court of Criminal Appeals recently reiterated a long line of cases dealing with situations similar to the instant case. See Connolly, 983 S.W.2d at 740-741, citing Williams v. State, 492 S.W.2d 931, 932-33 (Tex. Crim. App. 1979) (trial court's decision to proceed with an adjudication of guilt is one of absolute discretion and is not reviewable); Wright v. State, 592 S.W.2d 604, 606 (Tex. Crim. App. 1980) (under the terms of the statute, no appeal may be taken from the hearing in which the trial court determines to proceed with an adjudication of guilt on the original charge); Phynes v. State, 828 S.W.2d 1, 2 (Tex. Crim. App. 1992) (on appeal of trial court's decision to revoke probation and adjudicate, even if Appellant's right to counsel had been violated, Appellant could not use direct appeal as the vehicle with which to seek redress); Olowosuko v. State, 826 S.W.2d 940, 942 (Tex. Crim. App. 1992) (explaining that Court of Criminal Appeals had "held from the beginning of deferred adjudication practice that the Legislature [had] meant what it said in Article 42.12 § 5(b)"). The Court continued:
In all these cases, we have tried to make clear that, given the plain meaning of Article 42.12 § 5(b), an appellant whose deferred adjudication probation has been revoked and who has been adjudicated guilty of the original charge, may not raise on appeal contentions of error in the adjudication of guilt process. (citation omitted). Moreover, since the legislature has not overturned our interpretation of the statute after all these years, we are confident that our interpretation is correct. See State v. Hall, 829 S.W.2d 184, 187 (Tex. Crim. App. 1992) (prolonged legislative silence following judicial interpretation of statute implies approval of interpretation).
Connolly, 983 S.W.2d at 741.
In our view, given the factual similarities between Connolly and the case at hand, the holdings in Connolly and the cases cited therein control the instant case. Here, Appellant contends that the trial court did not act as a neutral and detached magistrate in that it had predetermined the result of the hearing on the State's motion to adjudicate. Given the plain meaning of Article 42.12 section 5(b) and the long line of authority from the Court of Criminal Appeals on this issue, we hold that Appellant cannot raise these issues, which arise out of the trial court's decision to proceed with the adjudication of guilt following the revocation of Appellant's probation.
Accordingly, this appeal is dismissed for want of jurisdiction.
Opinion delivered July 25, 2001.
Panel consisted of Davis, C.J., Worthen, J., and Griffith, J.
(DO NOT PUBLISH)
COURT OF APPEALS
TWELFTH COURT OF APPEALS DISTRICT OF TEXAS
JUDGMENT
JULY 25, 2001
NO. 12-00-00181-CR
ROBERT FRANKLIN CALDWELL,
Appellant
V.
THE STATE OF TEXAS,
Appellee
Appeal from the 7th Judicial District Court
of Smith County, Texas. (Tr.Ct.No. 7-81669-97)
It is therefore ORDERED, ADJUDGED and DECREED that Appellant's appeal is Dismissed For Want Of Jurisdiction; and that this decision be certified to the court below for observation.
By per curiam opinion.
Panel consisted of Davis, C.J., Worthen, J., and Griffith, J.
THE STATE OF TEXAS
M A N D A T E
TO THE SEVENTH JUDICIAL DISTRICT COURT OF SMITH COUNTY, GREETINGS:
Before our Court of Appeals for the 12th Court of Appeals District of Texas, on the 25th day of July, 2001, the cause upon appeal to revise or reverse your judgment between
ROBERT FRANKLIN CALDWELL, Appellant
NO. 12-00-00181-CR and Tr. Ct. Case Number 7-81669-97
Opinion by Per Curiam.
THE STATE OF TEXAS, Appellee
was determined; and therein our said Court made its order in these words:
THIS CAUSE came to be heard on the appellate record and briefs filed herein, and the same being inspected, it is the opinion of this Court that it does not have jurisdiction to hear Appellant's case.
It is therefore ORDERED, ADJUDGED and DECREED that Appellant's appeal is Dismissed For Want Of Jurisdiction; and that this decision be certified to the court below for observation.
WHEREAS, YOU ARE HEREBY COMMANDED to observe the foregoing order of said Court of Appeals for the Twelfth Court of Appeals District of Texas in this behalf, and in all things have it duly recognized, obeyed, and executed.
WITNESS, THE HONORABLE LEONARD DAVIS, Chief Justice of said Court of Appeals for the Twelfth Court of Appeals District, with the Seal thereof affixed, at the City of Tyler, this the ______ day of __________________, 2001.
CATHY S. LUSK, CLERK
By:_______________________________
Deputy Clerk
1. Appellant bases his contention on statements made by the trial judge prior to the revocation of his probation. Specifically, the trial judge, both prior to accepting the plea bargain and at the original sentencing hearing, informed Appellant that if it was later proven that he violated his probation, his probation would be revoked and he would go to prison.