Kendall v. State

929 S.W.2d 509, 1996 WL 560741

• Court: Court of Appeals of Texas
• Decided: October 3, 1996
• Docket: 2-95-077-CR
• Status: Published

Opinions

OPINION

HOLMAN, Justice.

Tracy Lee Kendall appeals his adjudication for violation of deferred adjudication probation. The original trial court placed Kendall on two years’ deferred adjudication probation when he pled guilty to a charge of burglary. The State moved to revoke Kendall’s probation and adjudicate his guilt after he allegedly stabbed a man to death. During the hearing to adjudicate his guilt, Kendall testified that he stabbed the man in question and violated two terms of his deferred adjudication probation. The trial court revoked Kendall’s probation, adjudicated his guilt, and sentenced him to five years in the penitentiary. We dismiss the appeal for want of jurisdiction.

In his original brief Kendall argued that he was denied his right to prosecute his appeal by the denial of his request for an extension of time to file a statement of facts. In his supplemental brief, Kendall argues a second point of error, that “[T]he Statute Creating Deferred Adjudication Violates Due Process.” ¹ Because our holding on his second point of error is dispositive of both of his points, we will address it first.

Kendall contends that Tex. Code CRim. PROC. Ann. art. 42.12, § 5(b) (Vernon Supp. 1996) violates due process² because it “does not set a standard by which the determination to proceed to adjudicate can be made.” The determination to adjudicate guilt may not be appealed. Tex. Code Crim. Proo. Ann. art. 42.12, § 5(b) (Vernon Supp.1996). The ease law indicates that the prohibition against a direct appeal of the determination to adjudicate is total. Phynes v. State, 828 S.W.2d 1, 1-2 (Tex.Crim.App.1992); Olowosuko v. State, 826 S.W.2d 940, 942 (Tex.Crim.App.1992).

Our reading of the Phynes case combined with Justice Overstreet’s concurrence in Olo-wosuko is that Kendall’s remedy (if any) is by way of a post-conviction writ of habeas corpus. See Tex. Code Crim. Proc. Ann. art. 11.07 § 3(b) (Vernon Supp. 1996); Phynes, 828 S.W.2d at 2; Olowosuko, 826 S.W.2d at 942 n. 2 (Overstreet, J., concurring); see also Tillman v. State, 919 S.W.2d 836, 838 (Tex.App.—Fort Worth 1996, pet. filed). Consequently, this court lacks jurisdiction to consider a direct appeal of Kendall’s due process claim or the denial of his request for an extension of time to file a statement of facts. The appeal is dismissed for want of jurisdiction.

DAUPHINOT, J, concurs.

1 . Kendall argued both points of error as "POINT OF ERROR NO. 1.” We will identify his due process point as his second point of error.

2 . Kendall does not state whether he contends that it constitutes a violation of the Texas Constitution, the United States Constitution, or both. Because the case law provides the same result under either constitution, we do not segregate our analysis.