Johnny LaSalle Brewer, Jr. v. State

IN THE TENTH COURT OF APPEALS No. 10-05-00261-CR Johnny LaSalle Brewer, Jr., Appellant v. The State of Texas, Appellee From the 13th District Court Navarro County, Texas Trial Court No. 27500 MEMORANDUM Opinion Upon pleading guilty to the offense of injury to a child, Johnny Brewer was placed on deferred adjudication community supervision (probation) on November 6, 2001 for ten years. Because the underlying offense included an attempted sexual assault of a child, stringent probation terms were added, including that Brewer not be in close proximity to any person younger than 17 and that he must remove himself from circumstances causing him to come near such persons. Another term was that Brewer had to submit to polygraph testing on a quarterly basis. At a polygraph examination, Brewer allegedly admitted to the polygraph examiner that he had had sexual contact with two female minor children. The State moved to revoke Brewer’s deferred adjudication probation, and after an evidentiary hearing, the trial court adjudicated Brewer guilty and sentenced him to ten years in prison. The trial court certified that Brewer’s case was not a plea bargain and that he had the right of appeal. Brewer filed a general notice of appeal. In his first two issues, Brewer alleges that the trial court abused its discretion because the evidence that he had violated a condition of probation was insufficient. Brewer’s third issue asserts that his admissions to the polygraph examiner were inadmissible because the polygraph examination was not voluntary—it was a condition of probation—and Brewer was not given Miranda warnings. An appeal of the trial court’s decision to adjudicate guilt is prohibited by article 42.12, § 5(b) of the Code of Criminal Procedure. Hargesheimer v. State, 182 S.W.3d 906, 909, 913 (Tex. Crim. App. 2006); see Tex. Code Crim. Proc. Ann. art. 42.12, § 5(b) (Vernon Supp. 2005); see also Roberts v. State, 141 S.W.3d 685, 685-86 (Tex. App.—Waco 2004, pet. ref’d) (mem. op.); Emich v. State, 138 S.W.3d 398, 400-01 (Tex. App.—Waco 2004, no pet.) (mem. op.). Brewer’s issues plainly indicate that he is appealing what is prohibited—the trial court’s decision to adjudicate guilt. See Hargesheimer, 182 S.W.3d at 909, 913; cf. Trevino v. State, 174 S.W.3d 925, 927 (Tex. App.—Corpus Christi 2005, pet. ref’d) (defendant may appeal from judgment adjudicating guilt when issues raised relate not to adjudication of guilt but to punishment phase); Tatum v. State, 166 S.W.3d 362, 364 (Tex. App.—Fort Worth 2005, pet. ref’d) (same). We thus dismiss Brewer’s three issues and affirm the trial court’s revocation order. See Roberts, 141 S.W.3d at 686; Emich, 138 S.W.3d at 401. BILL VANCE Justice Before Chief Justice Gray, Justice Vance, and Justice Reyna (Chief Justice Gray concurring) Affirmed Opinion delivered and filed July 12, 2006 Do Not Publish [CR25]