Johnson v. State

OPINION

FENDER, Chief Justice.

Upon his plea of guilty and the presentation of evidence, Michael Blaine Johnson was placed on unadjudicated probation under TEX.CODE CRIM.PROC.ANN. art. 42.12, sec. 3d(a) (Vernon Supp.1985) for three years. Subsequently a hearing was conducted as authorized by TEX.CODE CRIM.PROC.ANN. art. 42.12, Sec. 3d(b) (Vernon 1979). Probation was revoked, Johnson was pronounced guilty and his punishment fixed at three years. He now attempts to appeal from the adjudication hearing.

Appellant attempts to raise five grounds of error in his brief:

(1)No subsequent law violation was established at the adjudication hearing.
(2) That at a prior adjudication hearing certain allegations taken up at the second hearing were not sufficiently serious to warrant adjudication.
(3) Adjudication on the basis of being one day late in reporting is an abuse of discretion.
(4) Appellant was denied effective assistance of counsel at the adjudication hearing.
(5) The court generally abused its discretion by proceeding to adjudication on this record.
Article 42.12, sec. 3d(b) clearly states: “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).

This clearly and emphatically denies this Court any jurisdiction to entertain or consider an appeal from the adjudication hearing on any grounds. This Court must simply order the appeal dismissed (which by operation of law affirms the conviction).

By supplemental brief appellant undertakes to complain of the action of the trial court when this Court (in response to a motion by appellant) abated the appeal and returned the cause to the trial court for a hearing to make the record speak the truth. Although the supplemental record may have left a little to be desired in its completeness, we nevertheless find nothing even by implication which could breathe jurisdictional validity into any of the grounds of error submitted for our consideration.

By this we do not intend to encourage trial courts to arbitrarily disregard directives from this Court. Nor do we intend to rule out (sub silentio) such proceedings as contempt, mandamus, etc., to enforce our orders. We simply say that in this case a requirement of compliance (no matter the form) would not change the lack of jurisdiction.

*229The appeal is dismissed. The judgment of the trial court stands.

JOE SPURLOCK, II, J., dissents, ASH-WORTH, J., joins.