                                  IN THE
                          TENTH COURT OF APPEALS

                                 No. 10-07-00045-CR

GERALD WAYNE SMITH,
                                                            Appellant
v.

THE STATE OF TEXAS,
                                                            Appellee



                           From the 54th District Court
                            McLennan County, Texas
                           Trial Court No. 1998-129-C2


                             OPINION ON REMAND


      On original submission, the Court, with Chief Justice Gray dissenting, reversed

Gerald Wayne Smith’s conviction for sexual assault due to the trial court’s failure to

hold a hearing on Smith’s motion for new trial alleging ineffective assistance of counsel.

See Smith v. State, No. 10-07-00045-CR, 2008 Tex. App. LEXIS 2358 (Tex. App.—Waco

Apr. 2, 2008). The Court of Criminal Appeals reversed, holding that Smith was not

entitled to a hearing, and remanded for consideration of Smith’s remaining issue. See

Smith v. State, 286 S.W.3d 333, 345 (Tex. Crim. App. 2009). The sole issue on remand is
whether the trial court violated Smith’s right to due process by adjudicating guilt, in

part, on an allegedly “stale” allegation.1 We dismiss for want of jurisdiction.

        The State contends that Smith challenges the trial court’s adjudication of guilt,

over which we lack jurisdiction. Smith argues that his complaint merely addresses: (1)

“what sort of violations can properly be alleged in a motion to adjudicate, i.e., can a

stale five-year old violation form a basis for adjudicating guilt;” and (2) “the validity of

the adjudication proceeding.”

         Under the law in effect at the time the trial court adjudicated Smith’s guilt, “No

appeal may be taken from this determination.” Act of May 29, 1995, 74th Leg., R.S., ch.

318, § 53, sec. (b), 1995 Tex. Gen. Laws 2734, 2750 (amended 2007) (current version at

TEX. CODE CRIM. PROC. ANN. art. 42.12, § 5(b) (Vernon Supp. 2007)).2                           We cannot

“‘consider claims relating to the trial court’s determination to proceed with an

adjudication of guilt on the original charge.’” Davis v. State, 195 S.W.3d 708, 710 (Tex.

Crim. App. 2006) (quoting Hogans v. State, 176 S.W.3d 829, 832 (Tex. Crim. App. 2005)).

         Smith complains that the trial court violated his due process rights by basing its

decision to adjudicate guilt, in part, on a violation that occurred several years before

adjudication. This complaint is an impermissible challenge to the trial court’s decision

to adjudicate guilt. See Lamey v. State, No. 10-07-00149-CR, 2008 Tex. App. Lexis 504, at


1
        In November 2006, the State filed a motion to adjudicate Smith’s guilt, alleging four violations of
deferred adjudication community supervision. Smith pleaded “not true” to all four allegations, one of
which alleged that “[o]n or about January 6, 2002 [Smith] failed to report as ordered from October 8, 2001
through January 6, 2002.” The trial court found this and two other allegations to be “true.”

2        The current version of article 42.12 § 5(b) applies to adjudication hearings that occur on or after
its effective date of June 15, 2007. See Act of May 28, 2007, 80th Leg., R.S., ch. 1308, §§ 53, 68, 2007 Tex.
Gen. Laws 4395, 4413-14. Smith’s hearing occurred in February 2007.


Smith v. State                                                                                        Page 2
*2 (Tex. App.—Waco Jan. 23, 2008, pet. ref’d) (not designated for publication) (Declining

to address complaint that Lamey’s “‘right to due process was violated, where the

decision to adjudicate was based on’ certain conduct.’”); see also Coffey v. State, No. 13-

06-00408-CR, 2007 Tex. App. LEXIS 5643, at *3-4 (Tex. App.—Corpus Christi July 19,

2007, no pet.) (not designated for publication) (Declining to consider complaint that the

trial court “violated [Coffey’s] right to due process by allowing the State at the

adjudication hearing to present evidence on allegations it had previously abandoned.”);

Moore v. State, No. 05-05-01389-CR, 2006 Tex. App. LEXIS 5948, at *2 (Tex. App.—Dallas

July 11, 2006, no pet.) (not designated for publication) (Declining to address complaint

that the trial court “violated [Moore’s] due process rights by proceeding to an

adjudication of guilt…based upon allegations concerning conduct that occurred before

[he] was even placed on probation.”).

        Accordingly, we dismiss Smith’s sole issue and this appeal for want of

jurisdiction.



                                                       FELIPE REYNA
                                                       Justice
Before Chief Justice Gray,
       Justice Reyna, and
       Justice Davis
Dismissed
Opinion delivered January 20, 2010
Do not publish
[CR25]




Smith v. State                                                                       Page 3
