NO. 07-06-0318-CR

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL A

JULY 24, 2008

______________________________

NOE GERMAN VARELA, APPELLANT

V.

THE STATE OF TEXAS, APPELLEE

_________________________________

FROM THE 47TH DISTRICT COURT OF RANDALL COUNTY;

NO. 16,559-A; HONORABLE HAL MINER, JUDGE

_______________________________

Before CAMPBELL and HANCOCK and PIRTLE, JJ.

MEMORANDUM OPINION

Appellant Noe German Varela appeals from an order revoking his community

supervision, adjudicating him guilty of possession of methamphetamine, a controlled

substance, and imposing a sentence that includes confinement in the Institutional Division

of the Texas Department of Criminal Justice for a period of eighteen years. By his sole

point of error, appellant contends that his pleas of true to allegations contained within the

State’s motion to revoke were not made knowingly and voluntarily. We will dismiss for

want of jurisdiction.
See Tex. Health & Safety Code Ann. § 481.115(d) (Vernon 2007). This is a second 1

degree felony punishable by imprisonment for a term of not more than 20 years or less

than 2 years and a fine not to exceed $10,000. Tex. Penal Code Ann. § 12.33 (Vernon

2003). 

 The State also argues the admonishments appellant references are not required 2

at the time the court takes a plea on allegations of violations of terms of probation. We do

not address the argument.

2

In November 2004, appellant was charged by indictment with the offense of

possession of a controlled substance, specifically methamphetamine. In June 2005, 1

appellant plead guilty. The trial court entered an order deferring adjudication and placed

appellant on community supervision for a term of ten years. Appellant’s deferred

adjudication was conditioned on his compliance with specified terms and conditions.

The State filed its motion to revoke in March 2006. At the hearing on the motion,

appellant entered pleas of “true” to some of the State’s allegations and pleas of “not true”

to others. Pursuant to appellant’s pleas of “true” and after hearing the evidence presented

at the hearing, the court revoked appellant’s community supervision and sentenced him

as we have noted. Appellant timely appealed.

Appellant’s point of error presents the contention his pleas of true to the State’s

allegations in its motion to revoke were not knowingly and voluntarily made, because the

trial court did not admonish him at the time on the range of punishment or as to certain of

his rights. 

The State initially argues applicable law bars us from considering the point. We

2

agree with the State. At the time of appellant’s adjudication of guilt, the Code of Criminal
 The adjudication of appellant’s guilt occurred before the effective date of Senate

3

Bill 909, which authorizes appeals from the decision to adjudicate. Act of June 15, 2007,

80 Leg., R.S., Ch. 1308, § 1. 2007 Tex. Gen. Laws–(amending Tex. Code Crim. Proc. th

Ann. art. 42.12, § 5).

3

Procedure did not permit appeal of the trial court’s determination to proceed to adjudicate

the guilt of a defendant whose adjudication had been deferred. Phynes v. State, 828

S.W.2d (Tex.Crim.App. 1992); Tex. Code Crim. Proc.Ann. art. 42.12, § 5(b) (Vernon Supp.

2004). The scope of that rule encompassed claims of error arising “in the adjudication of 3

guilt process.” Connolly v. State, 983 S.W.2d 738 (Tex.Crim.App. 1999). Since the

voluntariness of appellant’s pleas of “true” to the State’s allegations in the motion to revoke

is a matter arising in that process, we have no jurisdiction to consider it. See Hargrave v.

State, 10 S.W.3d 355, 360 (Tex.App.–Houston [1 Dist.] 1999, pet. ref’d) (op. on reh’g) st

(holding that a challenge to the voluntariness of appellant's plea of true to the allegations

in the State's motion to adjudicate guilt seeks review of the trial court's decision to

adjudicate guilt).

Having no jurisdiction to consider appellant’s sole point of error, we dismiss the

appeal for want of jurisdiction. Phynes v. State, 828 S.W.2d 1, 2 (Tex.Crim.App. 1992);

Drew v. State, 942 S.W.2d 98, 99 (Tex.App.–Amarillo 1997, no pet.).

James T. Campbell

 Justice

Do not publish.