TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                    NO. 03-00-00338-CR




                                Fernando Garcia, Appellant

                                              v.

                                The State of Texas, Appellee



 FROM THE DISTRICT COURT OF TOM GREEN COUNTY, 119TH JUDICIAL DISTRICT
        NO. B-98-0080-S, HONORABLE DICK ALCALA, JUDGE PRESIDING



                Appellant Fernando Garcia was placed on ten years’ deferred adjudication and

community supervision after he pleaded guilty to the charge of aggravated assault with a deadly

weapon, a second degree felony. See Tex. Pen. Code Ann. § 22.02(a)(2) (West 1994). The trial

court later revoked the community supervision, adjudicated guilt, and assessed appellant’s

punishment at imprisonment for fifteen years. On appeal, appellant complains of ineffective

assistance of counsel at the revocation hearing. We will dismiss appellant’s claim for want of

jurisdiction.


                     FACTUAL AND PROCEDURAL BACKGROUND

                In January 1998, appellant was charged with aggravated assault with a deadly

weapon. On August 11, 1998, pursuant to a plea agreement, appellant was placed on ten years’

deferred adjudication.   In February 1999, the State filed a motion seeking a revocation of

appellant’s probation and an adjudication of guilt, alleging that appellant had violated several
conditions of community supervision.        At the adjudication proceeding, shortly after the

commencement of the hearing, and out of the presence of any witnesses, appellant’s trial counsel

required appellant, on the record, to acknowledge and to reject a plea offer made by the State.

Appellant’s trial counsel specifically had appellant acknowledge that the State would recommend

ten years’ imprisonment, that the judge’s range of punishment could be anywhere from

continuation of probation to a sentence of two to twenty years in the penitentiary, and that

appellant did not want to accept the plea agreement that the State offered. Further, appellant’s

trial counsel required appellant to acknowledge that he understood all of his rights in connection

with the motion to revoke his deferred adjudication and that appellant still wanted to proceed with

the hearing. The trial court subsequently found appellant guilty of violating the terms of his

probation and sentenced him to fifteen years. Appellant raises one issue on appeal.


                                          DISCUSSION

               On appeal, appellant contends that his attorney improperly elicited testimony from

him at the revocation proceeding which advised the trial court of the plea bargain negotiations that

had occurred between appellant and the State. Appellant argues that this necessarily affected the

court’s final decision. Appellant contends that this action by his lawyer constituted ineffective

assistance of counsel, in violation of appellant’s Sixth Amendment right to counsel. See U. S.

Const. amend. VI. Further, appellant argues that the ineffectiveness of his counsel was of such

a magnitude as to necessitate reversal of this cause and a remand for retrial.

               Article 42. 12 of the Code of Criminal Procedure controls questions concerning

adult probation and applications to revoke probation. Tex. Code Crim. Proc. Ann. art. 42.12


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(West 1979 & Supp. 2001); Phynes v. State, 828 S.W.2d 1, 2 (Tex. Crim. App. 1992). Section

5(b) provides:


       On violation of a condition of [deferred adjudication] community supervision [i. e.,
       probation] imposed under Subsection (a) of this section, the defendant may be
       arrested and detained as provided in Section 21 of this article. 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 . . . .


Tex. Code Crim. Proc. Ann. art. 42.12 § 5(b) (Supp. 2001). It has long since been recognized

that the United States Constitution does not require a state to provide appellate courts or a right

to appellate review of criminal convictions. Phynes, 828 S.W.2d at 2 (citing McKane v. Durston,

153 U.S. 684, 687-88 (1894)). As a result, a state may limit or even deny the right to appeal a

criminal conviction. Id. Similarly, there is nothing in the Texas Constitution that guarantees the

right to appeal a criminal conviction; that right is only provided by the legislature. Id.

                 The Court of Criminal Appeals has held that an appellant whose deferred

adjudication probation has been revoked and who subsequently has been adjudicated guilty of the

original charge may not raise on appeal contentions of error in the adjudication of guilt process.

Connolly v. State, 983 S.W.2d 738, 741 (Tex. Crim. App. 1999) (holding that article 42.12,

section 5(b) prohibits defendant from raising a claim of error in the adjudication of guilt process);

Phynes, 828 S.W.2d at 2 (stating that even if appellant’s right to counsel had been violated, he

could not use direct appeal as the vehicle by which to seek redress); Williams v. State, 592

S.W.2d 931, 932-33 (Tex. Crim. App. 1979) (“the trial court’s decision to proceed with an

adjudication of guilt is one of absolute discretion and not reviewable by this Court”); see also


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George E. Dix & Robert O. Dawson, Texas Criminal Practice & Procedure § 43.117 (1995).

Moreover, the legislature has not rejected the Court of Criminal Appeals’s interpretation of this

statute. See State v. Hall, 829 S.W.2d 184, 187 (Tex. Crim. App. 1992) (stating that prolonged

legislative silence following judicial interpretation of statute implies approval of interpretation).

We, therefore, overrule appellant’s single point of error.


                                          CONCLUSION

                We hold that appellant is prohibited from raising a claim of error in the adjudication

of guilt process and therefore dismiss his claim of ineffective assistance of counsel for want of

jurisdiction.




                                               David Puryear, Justice

Before Justices Kidd, B. A. Smith and Puryear

Dismissed for Want of Jurisdiction

Filed: April 12, 2001

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