Joaquin Chavez v. State

• Court: Court of Appeals of Texas
• Decided: August 27, 2004
• Docket: 13-02-00377-CR
• Status: Published

Opinion

r02377.cp1

NUMBER 13-02-377-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG

JOAQUIN CHAVEZ,                                                                    Appellant,

v.

THE STATE OF TEXAS,                                                             Appellee.

On appeal from the 197th District Court of Cameron County, Texas.

MEMORANDUM OPINION

Before Justices Hinojosa, Yañez, and Castillo

Memorandum Opinion by Justice Yañez

          By four issues, appellant, Joaquin Chavez, challenges the revocation of his deferred adjudication community supervision. We affirm.

          Pursuant to this Court’s order dated July 10, 2004, the trial court has issued an amended certification stating that this “is not a plea-bargain case, and the defendant has the right of appeal.” See Tex. R. App. P. 25.2(a)(2).

          As this is a memorandum opinion not designated for publication and the parties are familiar with the facts, we will not recite them here except as necessary to advise the parties of the Court’s decision and the basic reasons for it. See Tex. R. App. P. 47.4.

          Without a plea bargain agreement, appellant pled nolo contendere to the offense of burglary of a habitation. On February 2, 2001, the trial court deferred adjudication and placed appellant on deferred adjudication community supervision for eight years. On May 29, 2001, the State filed a motion to adjudicate guilt. Appellant’s probation was modified to participate in a substance abuse treatment program. The State filed a subsequent motion to adjudicate on April 22, 2002, and appellant pled “true” to failing to complete the substance abuse program satisfactorily. The trial court adjudicated appellant guilty, revoked his community supervision, and sentenced him to eight years confinement in the Institutional Division of the Texas Department of Criminal Justice.

          In his first three issues, appellant contends allegations in the States’s motion to adjudicate and conditions in his Order of Modification are so vague as to violate due process of law.

          Article 42.12 , section 5(b) of the code of criminal procedure provides that no appeal may be taken from a trial court’s determination to proceed with adjudication of guilt. Tex. Code Crim. Proc. Ann. art. 42.12, § 5(b) (Vernon Supp. 2004); see also Connolly v. State, 983 S.W.2d 738, 741 (Tex. Crim. App. 1999); Olowosuko v. State, 826 S.W.2d 940, 942 (Tex. Crim. App. 1992). We have no power to review any challenge to the sufficiency of the notice contained in the terms and conditions of the community supervision imposed by the trial court, adequacy of the State's motion to revoke, or sufficiency of the evidence to support the trial court's adjudication decision. See Connolly, 983 S.W.2d at 741. Accordingly, appellant is statutorily barred from challenging the trial court’s determination to proceed with adjudication of his guilt. See Tex. Code Crim. Proc. Ann. art. 42.12, § 5(b) (Vernon Supp. 2004). Thus, we cannot consider appellant’s first three issues.

          In his fourth issue, however, appellant contends he was denied an adequate punishment hearing following adjudication. While no appeal may be taken from a trial court’s determination to adjudicate guilt, see id., a defendant may challenge the assessment of punishment and imposition of sentence. See id.; see also Olowosuko, 826 S.W.2d at 942. A defendant appealing from deferred adjudication may raise an issue unrelated to the conviction, such as a complaint concerning the punishment imposed; however, an objection is required to preserve error. Vidaurri v. State, 49 S.W.3d 880, 886 (Tex. Crim. App. 2001). An appellant may preserve the trial court’s failure to provide an opportunity to present evidence regarding punishment by raising the issue in a motion for new trial. See id.

          Here, the record reflects that after appellant pled “true” to one of the allegations in the State’s motion to proceed with adjudication of guilt, the trial court adjudicated appellant’s guilt and immediately pronounced sentence, without giving him the opportunity to present evidence relevant to punishment. However, because appellant neither objected to the trial court's failure to allow him to present punishment evidence nor filed a motion for new trial complaining of his inability to do so, he has waived any error. Id. We overrule appellant’s fourth issue.

          We AFFIRM the judgment of the trial court.

                                                               LINDA REYNA YAÑEZ

                                                                           Justice

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

Memorandum opinion delivered and filed this the

27th day of August, 2004.