MacHella Hart v. State

NO. 12-01-00366-CR IN THE COURT OF APPEALS TWELFTH COURT OF APPEALS DISTRICT TYLER, TEXAS MACHELLA HART, § APPEAL FROM THE APPELLANT V. § COUNTY COURT AT LAW NO. 2 OF THE STATE OF TEXAS, APPELLEE § SMITH COUNTY, TEXAS PER CURIAM Appellant Machella Hart entered a plea of guilty to class A misdemeanor theft. The trial court deferred a finding of guilt and placed her on deferred adjudication probation for one year. Among other conditions of probation, she was ordered to pay restitution in the amount of $6,585.89. Although she was given extensions allowing her until three years, five months after being placed on probation to pay the restitution, she was unable to pay the full amount. The State filed a motion to proceed to adjudication which the trial court granted. The court adjudicated Appellant guilty and sentenced her to one hundred eighty days in jail. She raises three issues on appeal asserting that her probation should not have been revoked. We dismiss the appeal for want of jurisdiction. In her first issue, Appellant asserts the trial court abused its discretion in denying her motion for new trial which was based on the affirmative defense of inability to pay. She contends that she proved she could not pay the delinquent restitution because she is financially impoverished. In her second issue, she contends that, as the record shows she was unable to pay, the evidence is legally and factually insufficient to show her failure to pay court-ordered restitution was intentional. In her third issue, Appellant argues that the trial court's determination that she is indigent for purposes of entitlement to a court appointed attorney establishes as a matter of law that she lacked the ability to pay the court-ordered restitution. The Texas Code of Criminal Procedure specifically states that no appeal may be taken from a trial court's determination to proceed with an adjudication of guilt. Tex. Code Crim. Proc. Ann. art. 42.12, § 5(b) (Vernon Supp. 2002). Moreover, the decision to adjudicate rests within the absolute discretion of the trial court. See Rocha v. State, 903 S.W.2d 789, 790 (Tex. App.- Dallas 1995, no pet.). Therefore, a defendant cannot challenge the sufficiency of the evidence supporting the trial court's decision to adjudicate. See DeLeon v. State, 797 S.W.2d 186, 188 (Tex. App.- Corpus Christi 1990, no pet.). Appellant asserts this is an appeal from a probation revocation based on her failure to comply with the condition of probation requiring her to pay restitution. She attempts to show her probation should not have been revoked because she had a valid defense for the failure to repay the full amount of restitution. However, Appellant was on deferred adjudication probation and a determination that she violated a condition of her probation does not simply lead to sentencing. It leads to adjudication first. Tex. Code Crim. Proc. Ann. art. 42.12, § 5(b). Therefore, the issues addressed at the hearing go directly to the trial court's decision to adjudicate, a determination which is not appealable. Id. The issues addressed at the revocation hearing were Appellant's failure to pay restitution and whether her failure to pay was due to an inability to pay or an intentional refusal to pay. The motion for new trial addressed the same issues addressed at the revocation hearing. Thus, the trial court's decision not to grant her a new trial, though made in a separate proceeding, was not a separate determination from its decision to proceed with an adjudication of guilt. Therefore, if we addressed Appellant's complaint about the trial court's overruling her motion for new trial, we would have to rule on the merits of the trial court's determination to proceed with an adjudication of guilt. Likewise, we have the same response to her second issue. Because the issue goes to the trial court's determination of whether to adjudicate guilt, she is not permitted to challenge the sufficiency of the evidence to show her failure to pay was intentional rather than due to an inability to pay. See DeLeon, 797 S.W.2d at 188. Finally, whether her inability to pay restitution was established by the trial court's determination that she is indigent for purposes of appointing counsel on appeal is yet another sufficiency complaint. Accordingly, we do not have jurisdiction over any of Appellant's three issues. We dismiss this appeal for want of jurisdiction. Opinion delivered July 31, in the Year of our Lord 2002. Panel consisted of Gohmert, Jr., C.J., Worthen, J., and Griffith, J. DO NOT PUBLISH