                                   NO. 07-06-0337-CR

                             IN THE COURT OF APPEALS

                      FOR THE SEVENTH DISTRICT OF TEXAS

                                      AT AMARILLO

                                        PANEL B

                                    JULY 9, 2007
                          ______________________________

                         GENE EDWARD KEMP, APPELLANT

                                            V.

                          THE STATE OF TEXAS, APPELLEE
                        _________________________________

              FROM THE 47TH DISTRICT COURT OF RANDALL COUNTY;

                   NO. 14,546-A; HONORABLE HAL MINER, JUDGE
                        _______________________________


Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.


                               MEMORANDUM OPINION


       Appellant, Gene Edward Kemp, appeals from the trial court’s determination to

proceed with adjudication and an assessment of twelve years confinement in the Texas

Department of Criminal Justice, Institutional Division and a fine of $2,000. We will dismiss

the appeal.


                                       Background


       Appellant entered a plea of guilty to the charge of possession of a controlled

substance with intent to deliver within a drug free zone and was placed on deferred
adjudication for a period of eight years. No appeal was taken from the initial plea.

Subsequently, the State filed a motion to proceed with adjudication, which was heard by

the trial court on July 11, 2006. Appellant entered a plea of not true to all paragraphs of

the motion to proceed. After hearing the evidence, the trial court initially found that the

allegations in paragraphs one and three of the motion to proceed were true and proceeded

to conduct a separate punishment hearing. At the conclusion of the punishment hearing

the trial court announced he had determined that appellant had violated only the first

allegation. The trial court sentenced appellant to twelve years confinement and a fine of

$2,000.


       During the hearing on the motion to proceed, the State offered evidence of a failed

urinalysis to show appellant’s continued use of methamphetamine in violation of his terms

and conditions of the order granting deferred adjudication. Evidence of the failed urinalysis

consisted of the State’s Exhibit #1, the chain of custody documentation to MedTox

Laboratories in Minneapolis, Minnesota, and State’s Exhibit #2, the notice of filing of a

business record with the accompanying laboratory report from the test of a urine sample.

The appellant also testified during the adjudication phase of the proceedings. During

cross-examination, appellant admitted that he had provided a number of other urine

samples that allegedly tested positive for various drugs. However, appellant claimed that

all of the drug tests were flawed in one manner or another and should not be considered.


       Other than the failed urinalysis supported by the exhibits, during the punishment

phase of the proceeding, the trial court heard appellant’s probation officer testify that




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appellant had failed nine other drug tests. Based upon all of the testimony it heard, the trial

court sentenced appellant to confinement for twelve years and a fine of $2,000.


       Appellant contends that the trial court committed reversible error in three particulars:

1) in considering the results of drug tests which were not before the court as evidence on

punishment, 2) by consideration of scientific evidence which was admitted without a

hearing on the reliability of the evidence, and 3) the refusal to conduct a hearing on the

admissibility of scientific evidence should be reviewed as fundamental error despite article

42.12 § 5(b) of the Texas Code of Criminal Procedure. We disagree with appellant’s

issues and order the appeal dismissed.


                                           Analysis


       Initially, we note that the right of appeal in a criminal case is a statutory right

controlled by the legislative grant of the right. See Phynes v. State, 828 S.W.2d 1, 2 (Tex.

Crim.App. 1992). Further, as pointed out in Phynes the United States Constitution does

not require a state to provide appellate courts or a right to appeal a criminal conviction. Id.,

citing McKane v. Durston, 153 U.S. 684, 687-688, 14 S.Ct. 913, 38 L.Ed.867 (1894). The

statute in question, article 42.12 § 5(b) of the Texas Code of Criminal Procedure,

specifically states:


       On a violation of a condition of community supervision. . . 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. After an adjudication of guilt, all
       proceedings, including assessment of punishment, pronouncement of
       sentence, granting of community supervision, and defendant’s appeal
       continue as if the adjudication of guilt had not been deferred . . . .



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TEX . CODE CRIM . PROC . ANN . art 42.12 § 5(b) (Vernon Supp. 2006). Accordingly, the

statutory scheme does not permit an appeal of the decision by the trial court to adjudicate.


       In appellant’s first issue, he argues that the trial court wrongfully considered

punishment evidence and that this issue is subject to appeal. The evidence complained

of dealt with other failed drug tests by appellant and was first presented during the

adjudication phase of the trial. During the cross-examination of appellant, the State

inquired about a number of failed drug tests. Appellant denied remembering the drug

tests, yet in all but two of the occasions in question, upon further examination by the State,

appellant admitted he remembered telling the probation officer there was an excuse for

why the tests turned out positive. Appellant contends this evidence cannot be considered

as it is an attempt by the State to prove a fact in issue by the cross-examination of a

witness regarding his denial of the fact in question. See Wall v. State, 417 S.W.2d 59, 61

(Tex.Crim.App. 1967). Accordingly, appellant contends that the trial court wrongfully

considered this testimony.


       In attempting to ascertain whether or not the issue is appealable, we first consider

the purpose for which the State offered the evidence. During direct examination, appellant

testified that, despite the MedTox report, he had not been using methamphetamine. To

prove this point, he testified that he was tested by his employer in December prior to taking

the job and was hired. Additionally, appellant testified that he was tested again in February

and retained his job. The obvious import of these questions was that the tests given in




                                              4
December and February were negative for methamphetamine use.1 Later during direct

examination, appellant testified that he felt like he had given all he had to his probation.

During cross-examination, the State went into the other failed drug tests, over appellant’s

objection that they were not discussed nor was any evidence of them produced during the

State’s case. The trial court overruled the objection with the ruling that appellant had

opened the door to this line of questions by referring to having given probation his all. On

appeal, appellant has not contested the trial court’s ruling on the objection to admissibility

of the prior drug test evidence. From the context of the circumstances of the receipt of the

testimony, it is clear that the trial court ruled properly that appellant had opened the door

to the admission of the failed drug tests. Wheeler v. State, 67 S.W.3d 879, 885-86

(Tex.Crim.App. 2002). It is apparent to the court that the trial court properly admitted the

evidence during the adjudication phase for the purposes expressed in the record.


       Having determined that the testimony was admitted in the adjudication phase under

a proper theory, our inquiry becomes whether appellant’s claim of error directly and

distinctly related to punishment rather than to the decision to adjudicate. Hogans v. State,

176 S.W.3d 829, 830-31 (Tex.Crim.App. 2005). Notwithstanding the statements by the

trial court at the conclusion of the punishment hearing, the evidence in question did not

relate to the sentence in question directly and distinctly. Id. at 834. That the testimony of

failed drug tests contributed to punishment may well be true; however, this is not the test.

Id. All evidence offered during an adjudication hearing will affect or impact punishment.



       1
        The record reveals that appellant was not asked the question of what the test
results were, only that he was hired after the December test and retained after the
February test.

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Id. at 835. The fact that evidence may be probative to both the decision to adjudicate and

to the assessment of an appropriate punishment does not convert adjudication evidence

into punishment evidence. Id. Accordingly, we dismiss appellant’s first issue concluding

that the evidence of the failed drug tests did not relate directly and distinctly to sentencing

and, therefore, is nonappealable.


       Next, appellant posits that the refusal of the trial court to conduct a hearing on the

scientific reliability of the drug test admitted during adjudication should be reviewed under

a fundamental error standard. However, appellant has cited the court to no cases that

would permit us to consider this issue in light of the legislative determination that there be

no appeal from a decision to adjudicate. As the second and third issues raised by

appellant deal with evidentiary matters that arose during the adjudication phase of the

proceedings, the court is without jurisdiction to hear them and they are dismissed. TEX .

CODE CRIM . PROC . ANN . art 42.12 § 5(b) (Vernon Supp. 2006).


                                         Conclusion


       Appellant’s appeal is dismissed for want of jurisdiction.




                                           Mackey K. Hancock
                                               Justice


Do not publish.




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