Brian Ike Hart v. State of Texas

Opinion

Brian Ike Hart v. State of Texas

IN THE

TENTH COURT OF APPEALS

No. 10-01-094-CR

     BRIAN IKE HART,

                                                                         Appellant

     v.

     THE STATE OF TEXAS,

                                                                         Appellee

From the 40th District Court

Ellis County, Texas

Trial Court # 25017CR

MEMORANDUM OPINION

      Brian Ike Hart pleaded guilty to aggravated robbery. The court placed him on deferred adjudication community supervision in accordance with the State’s plea recommendation. The State filed a motion to proceed with an adjudication of his guilt about five months later. After a hearing, the court adjudicated Hart’s guilt and sentenced him to fifteen years’ imprisonment.

      In Hart’s sole issue, he challenges the court’s admission of certain evidence “during the adjudication stage of the hearing.” However, a defendant cannot challenge the court’s decision to proceed with an adjudication of guilt by direct appeal. See Tex. Code Crim. Proc. Ann. art. 42.12, § 5(b) (Vernon Supp. 2001); Olowosuko v. State, 826 S.W.2d 940, 942 (Tex. Crim. App. 1992); Rodriquez v. State, 972 S.W.2d 135, 137 (Tex. App.—Texarkana 1998), aff’d, 992 S.W.2d 483 (Tex. Crim. App. 1999). Thus, Hart cannot “raise on appeal contentions of error in the adjudication of guilt process.” Connolly v. State, 983 S.W.2d 738, 741 (Tex. Crim. App. 1999).

      Because article 42.12, section 5(b) bars Hart from raising the issue presented in a direct appeal, we dismiss the appeal. See Phynes v. State, 828 S.W.2d 1, 2 (Tex. Crim. App. 1992); Hargrave v. State, 10 S.W.3d 355, 357 (Tex. App.—Houston [1st Dist.] 1999, pet. ref’d).

                                                             PER CURIAM

Before Chief Justice Davis

      Justice Vance and

      Justice Gray

Appeal dismissed

Opinion delivered and filed October 31, 2001

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                                                                               ROBERT M. CAMPBELL

                                                                               Justice (Sitting by Assignment)

Before Chief Justice Davis,

      Justice Vance and

      Justice Campbell (Sitting by Assignment)

Affirmed

Opinion delivered and filed March 29, 2000

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