Guy Anthony Thompson v. The State of Texas--Appeal from 346th District Court of El Paso County

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State: Texas

Court: Texas Northern District Court

Docket No: 08-07-00111-CR

Case Date: 11/01/2007

Plaintiff: Guy Anthony Thompson

Defendant: The State of Texas--Appeal from 346th District Court of El Paso County

Preview:Guy Anthony Thompson v. The State of Texas--Appeal
from 346th District Court of El Paso County
Becker v. State
COURT OF APPEALS
EIGHTH DISTRICT OF TEXAS
EL PASO, TEXAS
GUY ANTHONY THOMPSON
Appellant,
v.
THE STATE OF TEXAS,
Appellee.
No. 08-07-00111-CR
Appeal from the
346th District Court
of El Paso County, Texas
TC# 65513 (920D04899)
MEMORANDUM OPINION
Guy Anthony Thompson attempts to appeal from a judgment adjudicating him guilty of aggravated assault. On
September 18, 1992, Appellant entered a guilty plea to aggravated assault and was placed on deferred adjudication.
The State subsequently filed a motion to adjudicate guilt. Following a hearing, the trial court granted the State's
motion, adjudicated Appellant's guilt and assessed his punishment at confinement for two years.
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In his brief, Appellant raises a single issue alleging that the trial court abused its discretion in revoking his probation
and adjudicating his guilt because the State did not prosecute the case with due diligence. The State filed a motion to
dismiss the appeal because the only issue raised on appeal is a challenge to the trial court's determination to proceed to
adjudication. We originally denied the motion but the State has filed a motion to for rehearing. We grant the State's
motion for rehearing.
Appellant's guilt was adjudicated in a hearing conducted prior to June 15, 2007. In such a case, no appeal may be taken
from the trial court's determination to proceed with an adjudication of guilt. Tex.Code Crim.Proc.Ann. art. 42.12,
5(b)(Vernon 2006). (1) The due diligence issue he raises on appeal is in the nature of a plea in bar or defense which
must be raised by the defendant at the revocation hearing. Connolly v. State, 983 S.W.2d 738, 741 (Tex.Crim.App.
1999). Further, the due diligence issue is part of the trial court's decision to revoke and proceed to judgment. Id.
Appeal of this issue is therefore barred by Article 42.12, Section 5(b). Id.; Wesley v. State, 157 S.W.3d 512, 514
(Tex.App.--Texarkana 2005, no pet.). We therefore grant the State's motion and dismiss the appeal. All other pending
motions are denied as moot.
November 1, 2007
ANN CRAWFORD McCLURE, Justice
Before Chew, C.J., McClure, and Carr, JJ.
(Do Not Publish)
1. In 2007, the Legislature amended Article 42.12, 5(b) to provide for a right of appeal from the trial court's decision to
adjudicate. Act of May 23, 2007, 80th Leg., R.S., S.B. 909, 5. However, the amendment is prospective and applies to
an adjudication hearing conducted on or after the effective date of the legislation, June 15, 2007, regardless of when
the adjudication of guilt was originally deferred or when the offense giving rise to the grant of deferred adjudication
community supervision was committed. Act of May 23, 2007, 80th Leg., R.S., S.B. 909, 53.
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