ROBERTS v. STATE

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Court of Appeals of Texas,Waco.

Phillip Warren ROBERTS, Appellant, v. The STATE of Texas, Appellee.

No. 10-04-00023-CR.

Decided: May 26, 2004

Before Chief Justice GRAY, Justice VANCE, and Justice REYNA. Walter M. Reaves Jr., West, for appellant. John W. Segrest, McLennan County Dist. Atty., Waco, for appellee.

MEMORANDUM OPINION

Phillip Warren Roberts pleaded guilty to two counts of indecency with a child.   Pursuant to a plea agreement, the court deferred an adjudication of guilt and placed Roberts on unadjudicated community supervision for ten years.   The court subsequently adjudicated Roberts's guilt, sentenced him to twenty years' imprisonment on each count, and ordered the sentences to run consecutively.

Roberts contends in his sole issue that the court erred by adjudicating his guilt for violations which the court had considered in a prior hearing which resulted in a modification of the terms and conditions of his unadjudicated community supervision.   This issue concerns the trial court's determination to proceed with an adjudication of guilt.  Article 42.12, section 5(b) of the Code of Criminal Procedure prohibits Roberts from raising this issue on appeal.  Tex.Code Crim. Proc. Ann. art. 42.12, § 5(b) (Vernon Supp.2004);  Connolly v. State, 983 S.W.2d 738, 741 (Tex.Crim.App.1999);  Williams v. State, 592 S.W.2d 931, 932-33 (Tex.Crim.App. [Panel Op.]1979);  Gray v. State, 134 S.W.3d 471, 472 (Tex.App.-Waco 2004, no pet. h.).   Thus, we dismiss Roberts's sole issue.

We affirm the judgment.   See Williams, 592 S.W.2d at 933;  Gray, 134 S.W.3d at 472-73.

Until the precedential value of Gray and Emich are established, I note my dissent to the affirmance of the trial court's judgment, which we have not reviewed, when dismissal is the proper disposition of this appeal.   See Gray v. State, 134 S.W.3d 471 (Tex.App.-Waco 2004, no pet. h.)(Gray, C.J., dissenting);  Emich v. State, 138 S.W.3d 398 (Tex.App.-Waco 2004, no pet. h.)(Gray, C.J., dissenting).   Interestingly, the majority attempts to bolster its position that affirming the judgment is the proper disposition by citing the 1979 Court of Criminal Appeals opinion, Williams v. State.   See Williams v. State, 592 S.W.2d 931 (Tex.Crim.App.1979).   The distinct difference between Williams and this case is that, in Williams, the Court of Criminal Appeals reviewed the record and found no reversible error.  Id. at 933.   In this case, we did not.

Thus, I respectfully dissent.

PER CURIAM.

Chief Justice GRAY dissents.

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