Craig Anthony Blackmon v. State

• Court: Court of Appeals of Texas
• Decided: February 15, 2007
• Docket: 14-06-00640-CR
• Status: Published

Opinion

Dismissed and Memorandum Opinion filed February 15, 2007

Dismissed and Memorandum Opinion filed February 15, 2007.

In The

Fourteenth Court of Appeals

_______________

NO. 14-06-00640-CR

CRAIG BLACKMON, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 262nd District Court

Harris County, Texas

Trial Court Cause No. 795826

M E M O R A N D U M   O P I N I O N

Craig Blackmon appeals a conviction for indecency with a child by contact on the ground that he was denied his constitutional right to confrontation as a result of ineffective assistance of counsel.  We dismiss.

As a preliminary matter, the State challenges our jurisdiction over this appeal based on the timeliness of the filing of appellant=s notice of appeal.  Following appellant=s guilty plea, the trial court entered a deferred adjudication order on June 11, 1999, placing appellant on community supervision for nine years.  On April 18, 2006, the State moved to adjudicate appellant=s guilt, alleging he violated conditions of his community supervision.  On May 24, 2006, following a hearing on the motion, appellant was found guilty and sentenced to twenty years confinement.

Appellant=s notice of appeal was due by June 23, 2006, but was filed on June 29, 2006.  See Tex. R.

 App. P. 26.2(a)(1).  However, because the notice was deposited in the mail on June 23, 2006,

according to the postmark on the copy of the envelope included in the clerk's record, and was received

by the court within ten days after the filing deadline, it was timely filed.  See Tex. R. App. P. 9.2(b).

Nevertheless, there remains an issue concerning our jurisdiction over the subject matter of the appeal.  Appellant=s sole issue contends that he was denied effective assistance of counsel because his trial counsel failed to make a Confrontation Clause objection when several witnesses testified during the adjudication phase concerning out-of-court statements made by the unavailable victim, describing appellant=s assault of her. 

A defendant may not appeal a trial court=s determination to proceed with an adjudication of guilt on the original charge.  See Tex. Code Crim. Proc. Ann. art. 42.12 ' 5(b) (Vernon 2006); Davis v. State, 195 S.W.3d 708, 710 (Tex. Crim. App. 2006).  An appeal raising such a claim must be dismissed.  Hogans v. State, 176 S.W.3d 829, 832 (Tex. Crim. App. 2005).  However, a defendant may appeal an error occurring during the punishment phase, provided that it "directly and distinctly" concerns only the punishment phase and not the adjudication decision.  Id. at 834.  Thus, the fact that evidence introduced during the adjudication phase is probative to both the decision to adjudicate and the assessment of punishment does not convert adjudication evidence into punishment evidence.  Id. at 835.

Appellant contends that his issue affects the punishment phase in that errors committed during the adjudication phase were Acarried over@ to the punishment phase because the trial court considered evidence adduced during the adjudication phase, without any objection from his defense counsel, in assessing punishment.  However, because appellant=s ineffectiveness allegations arise only from his counsel=s omissions during the adjudication phase,^[1] his claim does not directly and distinctly pertain to the punishment phase.  See Hogans, 176 S.W.3d at 835B36.  Therefore, we have no jurisdiction to consider this claim, and the appeal is dismissed.

/s/        Richard H. Edelman

Justice

Judgment rendered and Memorandum Opinion filed February 15, 2007.

Panel consists of Chief Justice Hedges and Justices Fowler and Edelman.

Do not publish C Tex. R. App. P. 47.2(b).

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^[1]           Evidence offered during an adjudication hearing will invariably affect punishment.  See Hogans, 176 S.W.3d at 835.