Mario Efrain Garza v. State

• Court: Court of Appeals of Texas
• Decided: June 7, 1990
• Docket: 10-90-00038-CR
• Status: Published

Opinion

Garza-ME v. state

DISMISSED

JUNE 7, 1990

NO. 10-90-038-CR

Trial Court

# 87-009-CR

IN THE

COURT OF APPEALS

FOR THE

TENTH DISTRICT OF TEXAS

AT WACO

* * * * * * * * * * * * *

MARIO EFRAIN GARZA,

   Appellant

v.

THE STATE OF TEXAS,

   Appellee

From 87th Judicial District Court

Freestone County, Texas

O P I N I O N

* * * * * * *

Appellant Garza pleaded guilty on May 18, 1987, to the offense of possession of marijuana, fifty pounds or less but more than five pounds, and was sentenced to five years confinement in the Texas Department of Corrections and assessed a $5,000 fine, probated for five years. On July 3, 1989, Garza, acting on his own behalf, filed an instrument entitled "Motion for a Revocation of Probation Hearing," in which he requested a revocation hearing and cited his present confinement at the Federal Correctional Institution, Bastrop, Texas while serving a 120-month sentence imposed in December 1988 by the U.S. District Court, Southern District, McAllen Division. Garza requested that the court grant his motion or, alternatively, continue his probation after he had completed the sentence he was then serving in Bastrop.

On August 18, 1989, the State filed a motion to revoke Garza's probation, alleging the subsequent criminal conviction and other violations of the conditions of his probation.

On February 14, 1990, Garza filed an application to proceed in forma pauperis and a motion styled "Defendant's Motion to Have the Court Revoke Probation," in which Garza stated that he was being deprived of rehabilitation programs afforded others at the Bastrop facility due to his pending probation status.

Pursuant to the State's "Motion to Show Cause on Probation Revocation" which alleged Garza's incarceration in the federal penitentiary, the trial court dismissed the "motion to revoke probation." Garza attempts an appeal from that dismissal order.

The court's order of dismissal is not clear as to whether the dismissal pertained to the motion to revoke filed by the State or to those motions filed by Garza. Regardless of whose motion the trial court actually dismissed, this court cannot entertain the appeal because no appeal lies in the absence of a final conviction and judgment of guilt. See Ex parte Hernandez, 705 S.W.2d 700, 701 (Tex. Crim. App. 1986); Roy v. State, 674 S.W.2d 924, 925 (Tex. App.--Austin 1984, no pet.); Murphy v. State, 689 S.W.2d 341, 342 (Tex.Civ.App.--Fort Worth 1985, no pet.). Moreover, the trial court is afforded broad discretion to modify, revoke or continue probation and Garza has failed to show an abuse of that discretion. See Ex parte Tarver, 725 S.W.2d 195, 200 (Tex. Crim. App. 1986). Accordingly, the appeal is dismissed.

                                                                                                        BOB L. THOMAS

DO NOT PUBLISH Chief Justice