
NO. 07-04-0008-CR



IN THE COURT OF APPEALS



FOR THE SEVENTH DISTRICT OF TEXAS



AT AMARILLO



PANEL E



MAY 24, 2004



______________________________





DAVID RAMOS, APPELLANT



V.



THE STATE OF TEXAS, APPELLEE



_________________________________



FROM THE 108
TH
 DISTRICT COURT OF POTTER COUNTY;



NO. 46,215-E; HONORABLE ABLE LOPEZ, JUDGE



_______________________________





Before QUINN and REAVIS, JJ. and BOYD, S.J.
(footnote: 1)




MEMORANDUM OPINION ON STATE’S MOTION TO DISMISS



By opinion dated March 23, 2004, this Court granted the State’s motion to abate this appeal and remand the cause to the trial court with directions to re-certify appellant David Ramos’s right of appeal based on a pre-sentence waiver of the right to appeal without a punishment recommendation.  Pursuant to this Court’s order, the trial court made findings of fact and conclusions of law.  As relevant here, the trial court certified that appellant’s case is a “plea bargain case, and the defendant has NO right of appeal.”  By its conclusions of law, the trial court held appellant is procedurally barred from appealing its decision to adjudicate guilt.

Appellant had been granted deferred adjudication community supervision in exchange for his guilty plea to possession of a controlled substance.  Upon the State’s motion to proceed with an adjudication of guilt, appellant pled true to the allegations.  After hearing evidence, the trial court sentenced appellant to 20 years confinement.  Appellant did not present punishment evidence nor object to the sentence.

Article 42.12, section 5(b) of the Texas Code of Criminal Procedure expressly denies a defendant the right to appeal from a trial court’s determination to adjudicate guilt.  Connolly v. State, 983 S.W.2d 738, 741 (Tex.Cr.App. 1999); Phynes v. State, 828 S.W.2d 1, 2 (Tex.Cr.App. 1992).  Although an appeal of all proceedings after an adjudication of guilt is not foreclosed by article 42.12, section 5(b) (
i.e.
, assessment of punishment, pronouncement of sentence), a review of the revocation hearing establishes that any possible complaints regarding post-adjudication proceedings were not preserved for review.  
See
 Tex. R. App. P. 33.1(a)(1)(A); 
see also
 Hardeman v. State, 1 S.W.3d 689, 690 (Tex.Cr. App. 1999) 
and
 Issa v. State, 826 S.W.2d 159, 161 (Tex.Cr.App. 1992).  Thus, we grant the State’s motion and dismiss this appeal.

Accordingly, the appeal is dismissed for want of jurisdiction.

Don H. Reavis

    Justice





Quinn, J., dissenting.





Publish.

FOOTNOTES
1:John T. Boyd, Chief Justice (Ret.), Seventh Court of Appeals, sitting by assignment.


