Dismissed and Memorandum Opinion filed July 13, 2006.
In The
Fourteenth Court of Appeals
____________
NO. 14-05-01015-CR
____________
RICHARD ROBLES VIGIL, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 338th District Court
Harris County, Texas
Trial Court Cause No. 824929
M E M O R A N D U M O P I N I O N
Appellant Richard Robles Vigil appeals his conviction for indecency with a child. In a single issue, appellant contends the trial court erred in not sua sponte holding a hearing on his competency. We dismiss for want of jurisdiction.
On May 3, 2000, appellant was placed on ten years= deferred adjudication probation for indecency with a child. On June 27, 2005, the State filed a motion to adjudicate appellant=s guilt, alleging he violated his deferred adjudication probation by committing another offense and failing to participate in the sex offender treatment program. On July 14, 2005, the trial court ordered that psychiatric and medical examinations be performed on appellant because he showed signs of mental illness. Status reports issued over the next month indicated that appellant was physically able to attend court and did not need psychiatric medications. On September 9, 2005, the trial court entered judgment adjudicating guilt and sentenced appellant to two years= incarceration.
In a single issue, appellant argues that because the trial court noted he showed signs of mental illness, the court should have stayed the hearing on the motion to adjudicate and ordered a test to determine his competency. Appellant did not file a motion seeking a competency determination, and he argues on appeal that the trial court should have sua sponte stayed the hearing. The State argues this court has no jurisdiction to consider appellant=s contention. We agree.
Under article 42.12, section 5(b) of the Code of Criminal Procedure, if the defendant violates a condition of deferred‑adjudication community supervision, he is entitled to a hearing Alimited 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) (Vernon Supp. 2005). Appellate courts have no jurisdiction to consider claims relating to the trial court=s determination to proceed with an adjudication of guilt on the original charge. Hogans v. State, 176 S.W.3d 829, 832 (Tex. Crim. App. 2005). 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. Id. The legislature=s prohibition includes all complaints attaching to the trial court=s decision to proceed to an adjudication of guilt except challenges to the trial court=s jurisdiction or issues related to proceedings following the adjudication decision. See, e.g., id. at 830B31, 832 & n.6 (holding that an appellate court has jurisdiction to consider the merits of a claim that arises before the act of adjudication if the claim directly and distinctly relates to punishment rather than the decision to adjudicate); Nix v. State, 65 S.W.3d 664, 667B68 (Tex. Crim. App. 2001) (recognizing applicability of Avoid judgment@ exception to deferred adjudication proceedings).
Several other appellate courts have determined that intermediate appellate courts do not have jurisdiction to consider the trial court=s failure to order a competency hearing in the midst of an adjudication hearing. See, e.g., Durgan v. State, No. 09-04-501-CR, __ S.W.3d __, 2006 WL 1359620, at *2 (Tex. App.CBeaumont May 17, 2006, no pet. h.); Bearden v. State, 147 S.W.3d 661, 662 (Tex. App.CAmarillo 2004, no pet.)[1]; Davis v. State, 141 S.W.3d 694, 697B98 (Tex. App.CTexarkana 2004, pet. ref=d); Henderson v. State, 132 S.W.3d 112, 115 (Tex. App.CDallas 2004, no pet.); Nava v. State, 110 S.W.3d 491, 493 (Tex. App.CEastland 2003, no pet.); Arista v. State, 2 S.W.3d 444, 445B46 (Tex. App.CSan Antonio 1999, no pet.).
We recognize that the Waco Court of Appeals held it had jurisdiction to address an appellant=s complaint that the trial court failed to conduct a competency inquiry in a deferred adjudication case because the error pertained to the Avalidity of the proceedings whereby her guilt was adjudicated and she was sentenced to prison@ rather than to the Atrial court=s decision (determination) to adjudicate her guilt.@ See Marbut v. State, 76 S.W.3d 742, 747 (Tex. App.CWaco 2002, pet. ref=d). We join our sister courts in their disagreement with the Waco court=s conclusion. See Davis, 141 S.W.3d at 697; Henderson, 132 S.W.3d at 114B15; Nava, 110 S.W.3d at 493. A competency complaint under the circumstances here does not challenge the trial court=s jurisdiction to adjudicate a defendant=s guilt but asserts reversible error in the process of adjudication. See Henderson, 132 S.W.3d at 114. Therefore, under article 42.12, section 5(b) of the Code of Criminal Procedure, we have no jurisdiction to consider appellant=s sole issue.
The appeal is ordered dismissed.
/s/ Leslie Brock Yates
Justice
Judgment rendered and Memorandum Opinion filed July 13, 2006.
Panel consists of Chief Justice Hedges and Justices Yates and Guzman.
Do Not Publish C Tex. R. App. P. 47.2(b).
[1] In Gilbert v. State, 852 S.W.2d 623, 626 (Tex. App.CAmarillo 1993, no pet.), the Amarillo Court of Appeals held it had jurisdiction to consider the issue now before us, but specifically disavowed that reasoning in Sanders v. State, No. 07-00-0519-CR, 2001 WL 1217313, at *2 (Tex. App.CAmarillo Oct. 11, 2001, no pet.) (not designated for publication).