James Wiley Barnes, III v. State

• Court: Court of Appeals of Texas
• Decided: April 1, 2009
• Docket: 10-07-00172-CR
• Status: Published

Opinion

IN THE TENTH COURT OF APPEALS

No. 10-07-00172-CR

JAMES WILEY BARNES, III, Appellant v.

THE STATE OF TEXAS, Appellee

From the 54th District Court McLennan County, Texas Trial Court No. 2006-586-C2

MEMORANDUM OPINION

James Wiley Barnes, III appeals the trial court’s revocation of his deferred

adjudication community supervision and imposition of a six-year prison sentence. We

will affirm the trial court’s judgment.

Barnes had entered into a negotiated plea agreement in which he pled guilty to

the second-degree felony offense of aggravated assault—threat with a deadly weapon

and was placed on deferred adjudication community supervision for five years,

beginning June 20, 2006. The State filed a motion to adjudicate guilt on March 21, 2007, alleging fifteen violations of community supervision. After an April 27, 2007 hearing,

on April 30, 2007, the trial court found Barnes guilty and assessed the six-year sentence.

Barnes appeals, asserting in two issues that he did not fail to avoid injurious or vicious

habits and that he did not fail to avoid contact with the victim.

The State points out that Barnes may not raise these issues under the version of

section 5(b) of article 42.12 in effect at the time of Barnes’s guilty plea and the

adjudication proceedings.

A defendant was statutorily prohibited from complaining on appeal of errors

occurring at the hearing on the State’s motion to proceed to adjudication. Gray v. State,

134 S.W.3d 471, 472 (Tex. App.—Waco 2004, pet. denied) (citing Connolly v. State, 983

S.W.2d 738, 741 (Tex. Crim. App. 1999)). At the time relevant to this case, section 5(b)

provided: “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.” See Act of May 28, 2007, 80th Leg., R.S., ch.

1308, § 5, 2007 Tex. Sess. Law Serv. 4404, 4405 (amending section 5(b) to provide that the

trial court’s “determination is reviewable in the same manner as a revocation hearing

conducted under Section 21” of Article 42.12) (emphasis added) (current version at TEX.

CODE CRIM. PROC. ANN. art. 42.12, § 5(b) (Vernon Supp. 2008)); see Durgan v. State, 240

S.W.3d 875, 877-78 (Tex. Crim. App. 2007).

Section 5(b) of article 42.12 has been amended to treat decisions to adjudicate

similarly to decisions to revoke community supervision, but the amended statute

Barnes v. State Page 2 applies only to decisions to adjudicate made on or after June 15, 2007. Durgan, 240

S.W.3d at 877 n.1; see TEX. CODE CRIM. PROC. ANN. art. 42.12, § 5(b).

Under the applicable law, we dismiss Barnes’s two issues. The trial court’s

judgment is affirmed.

REX D. DAVIS Justice

Before Chief Justice Gray, Justice Reyna, and Justice Davis Affirmed Opinion delivered and filed April 1, 2009 Do not publish [CR25]

Barnes v. State Page 3