Alvarez v. State, 04-97-00955-CR

• Decision Date: 02 May 2001
• Docket Number: No. 04-97-00955-CR,04-97-00955-CR
• Citation: 50 S.W.3d 566
• Parties: (Tex.App.-San Antonio 2001) Rodolfo ALVAREZ, Appellant v. The STATE of Texas, Appellee
• Court: Texas Court of Appeals

Page 566

50 S.W.3d 566 (Tex.App.-San Antonio 2001)

Rodolfo ALVAREZ, Appellant v. The STATE of Texas, Appellee

No. 04-97-00955-CR

Court of Appeals of Texas, San Antonio.

May 2, 2001

From the 144th Judicial District Court, Bexar County, Texas Trial Court No. 90-CR-0555 Honorable Mark R. Luitjen, Judge Presiding

Paul J. Goeke, San Antonio, for Appellant.

Enrico B. Valdez, Asst. Crim. Dist. Atty., San Antonio, for Appellee.

Sitting Rickhoff, Duncan, and Angelini, JJ.

OPINION

Duncan, Justice.

Pursuant to a plea bargain agreement, Rodolfo Alvarez pled guilty to indecency with a child by contact. The trial court sentenced Alvarez to ten years imprisonment, suspended the sentence, and placed Alvarez on probation. The trial court later revoked Alvarez' probation and sentenced him to eight years in the Texas Department of Criminal Justice - Institutional Division. Alvarez filed a motion for new trial, supported by his affidavit, alleging the guilty plea underlying his probated sentence was involuntary. The trial court ruled it did not have jurisdiction to consider the voluntariness issue and denied the motion. Alvarez appealed, contending the trial court erred in refusing to conduct an evidentiary hearing on his motion for new trial. This court agreed and on February 24, 1999 issued an opinion and order abating the case and remanding it to the trial court for an evidentiary hearing. Alvarez v. State, 995 S.W.2d 185 (Tex. App. San Antonio 1999, pet. dism'd). The trial court heard and denied the motion for new trial. After supplemental briefing on the voluntariness issue, this court affirmed the trial court's judgment. Alvarez v. State, No. 04-97-00955, 2000 WL 1690409 (Tex. App. San Antonio Nov. 1, 2000, no pet. h.). The State has filed a motion for rehearing. We grant the motion, withdraw our February 24, 1999 and November 1, 2000 opinions and our November 1, 2000 judgment, and dismiss the appeal for lack of jurisdiction.

The general rule has long been that a defendant may not challenge the validity of a conviction underlying a probated sentence in a revocation proceeding or on appeal from the revocation. Whetstone v. State, 786 S.W.2d 361, 363 (Tex. Crim. App. 1990). Our first opinion in this case was grounded on the longstanding exception to this rule that "any complaint concerning the original judgment of conviction that could be raised in a post-conviction habeas corpus proceeding ... may also be raised on appeal from an order revoking probation." Smola v. State, 736 S.W.2d 265, 266 (Tex. App. Austin 1987, no pet.)....