                                   NO. 07-00-0519-CR

                             IN THE COURT OF APPEALS

                      FOR THE SEVENTH DISTRICT OF TEXAS

                                      AT AMARILLO

                                        PANEL A

                                   OCTOBER 11, 2001

                          ______________________________


                          WADE RAY SANDERS, APPELLANT

                                            V.

                          THE STATE OF TEXAS, APPELLEE


                        _________________________________

            FROM THE 181ST DISTRICT COURT OF POTTER COUNTY;

                 NO. 42,044-B; HONORABLE JOHN BOARD, JUDGE

                         _______________________________

Before BOYD, C.J., and REAVIS and JOHNSON, JJ.


       Pursuant to a guilty plea for assault on a public servant, appellant Wade Ray

Sanders was granted deferred adjudication and placed on community supervision for three

years. At a hearing on the State’s amended motion to proceed with an adjudication of

guilt, appellant plead true to possession of a firearm and the trial court heard evidence on

three remaining allegations. The trial court adjudicated appellant guilty of the original
charge and assessed punishment at ten years confinement. Appellant filed a general

notice of appeal. Based upon the rationale expressed herein, we dismiss this appeal for

want of jurisdiction.


       According to the record, on March 23, 2000, Officer Mike Willis was dispatched to

appellant’s home for a domestic dispute. Appellant allegedly struck Willis in the mouth

causing injury. On August 17, 2000, appellant was placed on deferred adjudication for

three years for assaulting Officer Willis. The following day, officers were dispatched to

appellant’s mother’s residence where appellant was threatening to commit suicide with a

rifle. According to the responding officers, appellant threatened the life of Officer Willis.

After the incident appellant was taken to a local hospital for medical evaluation and

following an interview with a mental health counselor, he was admitted to a mental health

facility for thirteen days. On October 4, 2000, the trial court adjudicated appellant guilty

of the original charge of assault against Officer Willis.


       Presenting two points of error, appellant contends the trial court (1) abused its

discretion in failing to sua sponte conduct a competency hearing before adjudicating him

guilty, and (2) erred and abused its discretion in revoking his community supervision on

insufficient evidence. 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); Olowosuko v. State, 826 S.W.2d 940, 941-42

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(Tex.Cr.App. 1992). An appeal cannot be had to challenge: (1) the sufficiency of the

evidence to support the trial court's adjudication of guilt, (2) a claim of ineffective

assistance of counsel at the hearing on the motion to adjudicate, (3) a claim that the

conditions of community supervision are too vague, and (4) a claim that a variance exists

between the community supervision conditions in the order and those alleged in the motion

to adjudicate. See Phynes, 828 S.W.2d at 2, and Olowosuko, 826 S.W.2d at 942.

However, article 42.12, section 5(b) expressly allows an appeal of all proceedings after the

adjudication of guilt on the original charge. Olowosuko, 826 S.W.2d at 942. An appeal

may be had to challenge (1) the assessment of punishment, and (2) the pronouncement

of sentence. Tex. Code Crim. Proc. Ann. art. 42.12 § 5(b) (Vernon Supp. 2001). Thus, as

an appellate court, it is our duty to sort out the trial court’s rulings in the course of a

deferred adjudication proceeding to determine those which the Legislature has provided

a right to appeal. See Olowosuko, 826 S.W.2d at 941.


       Our initial inquiry is to determine whether assessment of appellant’s competency

to stand trial is a challenge to the trial court’s determination to proceed with an adjudication

of guilt from which no appeal is permitted. We conclude that it is. We are cognizant that

in 1993, this Court held that it was not prohibited from reviewing a trial court’s failure to

conduct a mental competency hearing prior to proceeding with an adjudication of guilt.

Gilbert v. State, 852 S.W.2d 623, 626 (Tex.App.–Amarillo 1993, no pet.). However, more

recent opinions of the Court of Criminal Appeals suggest that given the plain meaning of


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article 42.12, section 5(b), any contentions of error in the adjudication of guilt process are

foreclosed from appellate review. Connolly v. State, 983 S.W.2d 738, 741 (Tex.Cr.App.

1999). See generally Phynes v. State, 828 S.W.2d 1 (Tex.Cr.App. 1992) (holding that

even if the right to counsel had been violated, it could not be raised on appeal from the

trial court’s decision to adjudicate); Olowosuko v. State, 826 S.W.2d 940, 942 (Tex.Cr.App

1992) (explaining that since the beginning of deferred adjudication practice, the

Legislature meant what it said in article 42.12, section 5(b)); see also Arista v. State, 2

S.W.3d 444, 445-46 (Tex.App.–San Antonio 1999, no pet.) (declining to follow this Court’s

decision in Gilbert in light of Connolly in an appeal from an adjudication of guilt in which

Arista contended the trial court erred by failing to hold a competency hearing).


       Having concluded that the issue of mental competency relates to the adjudication

of guilt process and does not fall within the statutory category of “all proceedings” after an

adjudication of guilt from which an appeal may continue, (i.e., assessment of punishment

and pronouncement of sentence), we also find that appellant’s general notice of appeal

is insufficient to invoke this Court’s jurisdiction. The Court of Criminal Appeals has

recently held on appeal from an adjudication of guilt, if an issue unrelated to a conviction

is raised, the limitations of Rule 25.2(b)(3) of the Texas Rules of Appellate Procedure do

not apply and a general notice of appeal is sufficient. Vidaurri v. State, 49 S.W.3d 880,

885 (Tex.Cr.App. 2001). Conversely, where as here, we have determined that an attack

on the trial court’s failure to hold a competency hearing prior to an adjudication of guilt is


                                              4
an issue relating to the conviction, the notice of appeal limitations were triggered and

appellant’s general notice of appeal was insufficient to invoke our jurisdiction. Thus, for

the foregoing reasons, we are without jurisdiction to consider appellant’s points of error.


      Accordingly, this appeal is dismissed for want of jurisdiction.


                                         Don H. Reavis
                                           Justice



Do not publish.




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