                    In The
              Court of Appeals
Sixth Appellate District of Texas at Texarkana

         ______________________________

               No. 06-07-00136-CR
         ______________________________


       ALFORD AARON BOLDEN, Appellant

                           V.

          THE STATE OF TEXAS, Appellee



    On Appeal from the 336th Judicial District Court
                Fannin County, Texas
                Trial Court No. 21216




      Before Morriss, C.J., Carter and Moseley, JJ.
        Memorandum Opinion by Justice Carter
                                   MEMORANDUM OPINION

       Alford Aaron Bolden appeals his conviction for possession of a controlled substance, namely

cocaine. On August 23, 2005, Bolden was placed on deferred adjudication community supervision

for three years. On or about February 27, 2007, the State filed an application for the adjudication

of guilt, alleging possession of cocaine with intent to deliver; delivery of cocaine; failure to make

specified payments of the fine, court costs, and community supervision fees; and failure to report by

mail for certain months. At trial, the State introduced testimony from a confidential informant that

Bolden had sold her crack cocaine and introduced a video and audio recording of the transaction.

After finding Bolden committed delivery of cocaine and failed to pay required fees, the trial court

adjudicated guilt and sentenced Bolden to ten years' imprisonment. The trial court signed a

certification indicating Bolden has the right of appeal. That certification included a notation "except

as to adjudication and issues related thereto." Bolden's sole issue on appeal is that he received

ineffective assistance of counsel. Bolden argues his trial counsel was ineffective for not hiring an

expert to analyze the audio portion of the controlled buy. Bolden claims such an analysis might

prove he was not the person on the tape. Because Bolden lacked an ability to pay the specified fees,

he argues the trial court would not have proceeded to adjudication if he had received effective

assistance of counsel.

       Before this Court can address the merits of Bolden's argument, we must first determine if we

have jurisdiction over this appeal. The United States Constitution does not guarantee a criminal



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defendant the right to appeal a conviction. McKane v. Durston, 153 U.S. 684, 687 (1894). Nor does

the Texas Constitution provide such a right. Phynes v. State, 828 S.W.2d 1, 2 (Tex. Crim. App.

1992). Instead, a defendant's right to appeal a criminal conviction in Texas "is only as provided by

the legislature." Id. As it relates to the case now before us, the Texas Legislature has expressly

stated that a defendant may not appeal a trial court's decision to proceed to an adjudication of guilt.

See TEX . CODE CRIM . PROC. ANN . art. 42.12, § 5(b) (Vernon Supp. 2007); Connolly v. State, 983

S.W.2d 738, 741 (Tex. Crim. App. 1999); Cooper v. State, 2 S.W.3d 500, 502 (Tex.

App.—Texarkana 1999, pet. ref'd). While a defendant may be able to raise a claim of ineffective

assistance of counsel that allegedly occurred at the punishment phase following adjudication, the

Texas Court of Criminal Appeals has held "a defendant may not raise on direct appeal a claim of

ineffective assistance (or even an absence) of counsel that allegedly occurred at the proceeding to

adjudicate guilt." Hogans v. State, 176 S.W.3d 829, 833 (Tex. Crim. App. 2005); see Davis v. State,

195 S.W.3d 708, 710 (Tex. Crim. App. 2006). The asserted error must directly and distinctly

concern the punishment phase; the claim must, on its face, relate to the sentence imposed, not to the

decision to adjudicate. Hogans, 176 S.W.3d at 834. Similar to Hogans, the asserted error in this

case does not directly and distinctly concern the punishment phase. We lack jurisdiction over this

appeal.




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      For the reasons stated, we dismiss Bolden's appeal for want of jurisdiction.




                                            Jack Carter
                                            Justice

Date Submitted:      December 31, 2007
Date Decided:        January 4, 2008

Do Not Publish




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