                            NUMBER 13-07-00388-CR

                            COURT OF APPEALS

                  THIRTEENTH DISTRICT OF TEXAS

                    CORPUS CHRISTI - EDINBURG


ALBERT AYSON,                                                              Appellant,

                                            v.

THE STATE OF TEXAS,                                                        Appellee.


                   On appeal from the 347th District Court
                         of Nueces County, Texas.


                         MEMORANDUM OPINION

                Before Justices Rodriguez, Garza, and Vela
                Memorandum Opinion by Justice Rodriguez

       Appellant, Albert Ayson, appeals from the trial court's revocation of his deferred

adjudication community supervision. By one issue, appellant contends that the trial court

violated his right to due process. We dismiss for want of jurisdiction.
                                       I. Background

       Ayson pleaded guilty to five counts of indecency with a child. See TEX . PENAL CODE

ANN . § 21.11 (Vernon 2003). The trial court deferred adjudication and sentenced him to

community supervision for ten years. See TEX . CODE CRIM . PROC . ANN . art. 42.12 (Vernon

Supp. 2007). The State filed an original motion to revoke Ayson's community supervision

alleging that he "failed to participate in treatment by continuing to engage in deviant sexual

behavior."     Ayson pleaded "true" to the allegation and, following an agreed

recommendation, the trial court sanctioned Ayson and extended his community

supervision.

       The State then filed a motion requesting reconsideration of its motion to revoke. In

its motion, the State asked the trial court to revoke Ayson's community supervision and

adjudicate him guilty. The trial court granted the motion to reconsider and held a new

hearing on the motion to revoke. Following Ayson's plea of "not true," the trial court found

that the allegation in the State's original motion to revoke was true. The trial court revoked

Ayson's community supervision, adjudicated him guilty of five counts of indecency with a

child, and sentenced him to twenty years in jail.

                                       II. Jurisdiction

       In his sole issue, Ayson complains that his right to due process was violated when

the trial court granted the State's motion to reconsider, and revoked his community

supervision, and adjudicated him guilty. The State contends that this Court does not have

jurisdiction over Ayson's appeal. We agree.

       The trial court's adjudication of Ayson's guilt occurred on June 14, 2007. At that

time, article 42.12, section 5(b) of the Texas Code of Criminal Procedure, the statute

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applicable to appeals of adjudications of guilt, was strictly interpreted to mean that the

courts of appeals did not have jurisdiction to consider claims relating to the trial court's

determination to proceed with an adjudication of guilt on the original charge.1 See Davis

v. State, 195 S.W.3d 708, 710 (Tex. Crim. App. 2006).                            "With regard to deferred

adjudication, the Legislature authorized appeal of only two types of orders: (1) an order

granting deferred adjudication, and (2) an order imposing punishment pursuant to an

adjudication of guilt." Id. at 711.

        Ayson's complaint in this appeal is that the trial court reconsidered its original

decision to return him to probation, and proceeded to revoke his community supervision

and adjudicate him guilty, without a determination that he committed a new violation of

probation. This relates to the determination to proceed with a guilty finding on the original

charge. See Cole v. State, 931 S.W.2d 578, 580 (Tex. App.–Dallas 1995, pet. ref'd)

(dismissing the appeal for lack of jurisdiction when the appellant contended that his due

process rights were violated because the judgment did not state the reasons or the

evidence the trial court relied on to revoke his community supervision). Ayson merely

contests the basis underlying the trial court's determination, which is prohibited by article




        1
              Article 42.12 section 5(b) was am ended in 2007. Act of May 28, 2007, 80th Leg., R.S., ch. 1308,
§ 53, 2007 Tex. Gen. Laws 4395, 4413 (current version at T EX . C OD E C R IM . P R O C . A N N . art. 42.12 § 5(b)
(Vernon Supp. 2007)). The am ended statute now "perm its an appeal of a court's decision to proceed to an
adjudication of guilt." Durgan v. State, 240 S.W .3d 875, 878 (Tex. Crim . App. 2007); see T EX . C OD E C R IM .
P R O C . A N N . art. 42.12 § 5(b) (Vernon Supp 2007). The act am ending section 5(b) provides:

        Subsection (b), Section 5, Article 42.12, Code of Crim inal Procedure, as am ended by this
        Act, applies to a hearing conducted under that section on or after the effective date of this
        Act, regardless of when the adjudication of guilt was originally deferred or when the offense
        giving rise to the grant of deferred adjudication com m unity supervision was com m itted.

Id. § 53, 2007 Tex. Gen. Laws at 4413. The act took effect on June 15, 2007. Id. § 68, 2007 Tex. Gen. Laws
at 4414. The trial court conducted Ayson's hearing on June 14, 2007; therefore, form er article 44.12 applies.
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42.12, section 5(b). We therefore lack jurisdiction to address his appeal. See Davis, 195

S.W.3d at 710.

                                      III. Conclusion

       Accordingly, we dismiss this appeal for want of jurisdiction.



                                                    NELDA V. RODRIGUEZ
                                                    Justice

Do not publish.
TEX . R. APP. P. 47.2(b).

Memorandum Opinion delivered and
filed this 5th day of June, 2008.




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