Curter v. State

• Citation: 995 S.W.2d 703
• Decision Date: 23 March 1999
• Docket Number: No. 06-98-00084-CR,06-98-00084-CR
• Parties: (Tex.App.-Texarkana 1999) CLINT LANE CUTRER, Appellant v. THE STATE OF TEXAS, Appellee Date Submitted:
• Court: Court of Appeals of Texas

Page 703

995 S.W.2d 703 (Tex.App.-Texarkana 1999)

CLINT LANE CUTRER, Appellant v. THE STATE OF TEXAS, Appellee

In The Court of Appeals Sixth Appellate District of Texas at Texarkana

No. 06-98-00084-CR

Date Submitted: March 23, 1999

Date Decided: March 24, 1999

On Appeal from the Criminal District Court No. 4, Dallas County, Texas, Trial Court No. F95-02452-QK

Before Cornelius, C.J., Grant and Ross, JJ.

O P I N I O N

Ross,J.

Clint Cutrer was indicted, with enhancements, for the offense of aggravated robbery. He entered into a plea agreement with the State by which he waived his right to a jury trial, pled nolo contendere to the primary offense and true to the enhancements. The court found that the evidence substantiated his guilt for the offense of aggravated robbery and accepted his pleas of true to the enhancement paragraphs. The court then deferred adjudging Cutrer guilty and placed him on community supervision for ten years. Cutrer did not appeal from the court's order placing him on deferred adjudication supervision. More than two years later, the State filed a motion to proceed with an adjudication of guilt, alleging that Cutrer violated certain conditions of his community supervision. At the hearing on the State's motion, Cutrer pled true to the alleged violations without a plea agreement. The court accepted Cutrer's pleas of true, revoked supervision, adjudged him guilty, and assessed punishment at twenty-five years' confinement. The court granted Cutrer permission to appeal pursuant to TEX. R. APP. P. 25.2(b)(3)(C). Cutrer contends the trial court erred at the initial hearing when he was placed on deferred adjudication supervision by failing to admonish him of the consequences of pleading nolo contendere and in failing to inform him of the consequences of violating his deferred adjudication supervision.

This Court has previously held, along with other jurisdictions, that appellate courts lack jurisdiction in appeals claiming error in the order placing a defendant on deferred adjudication where notice of appeal was not timely filed after the original proceeding. Session v. State, 978 S.W.2d 289, 290 (Tex. App.-Texarkana 1998, no pet. h.); see also Hammack v. State, 963 S.W.2d 199, 200 (Tex. App.-Austin 1998, no pet. h.); Alejandro v. State, 957 S.W.2d 143, 144 (Tex. App.-Corpus Christi 1997, pet. ref'd); Smith v. State, 957 S.W.2d 571, 574-75 (Tex. App.-Dallas 1997, no pet.). Cutrer was placed on deferred adjudication supervision on October 5, 1995. He did not appeal from that proceeding until he was finally adjudicated guilty and sentenced in February 1998. Cutrer did not comply with TEX. R. APP. P. 26.2, which required him to file a notice of appeal within thirty days after the day sentence was imposed or suspended in open court, or after the day the trial court entered an appealable order.

Since Cutrer's complaints in this appeal relate solely to the initial proceeding where he was placed on deferred adjudication supervision and he did not timely appeal from that proceeding, we are without jurisdiction to consider his complaints. This conclusion is based on our holding in Session and the rationale of the other appellate courts that have reached the same conclusion. However, we cannot ignore the fact that the Texas Court of Criminal Appeals, while not addressing the jurisdictional issue directly, has implied that the appellate courts do have jurisdiction in these circumstances. Joyner v. State, 921 S.W.2d 234 (Tex. Crim. App. 1996); Ray v. State, 919 S.W.2d 125 (Tex. Crim. App. 1996).

In Joyner, the court allowed the appellant to challenge his original guilty plea as involuntary because he was not at that time properly admonished on the consequences of violating deferred adjudication. On October 4, 1989, Joyner pled guilty, without an agreed recommendation. The trial court deferred adjudication and placed him on probation for six years. On August 24, 1992, on the State's motion, the trial court adjudicated guilt and sentenced Joyner to seven years' confinement. Neither the court of appeals nor the Texas Court of Criminal Appeals addressed the issue of jurisdiction, but both went on to address the merits of Joyner's contentions attacking his original guilty plea, which occurred almost three years prior to his appeal.¹

The court in Ray allowed the appellant to challenge his original guilty plea as involuntary because he was not at that time properly admonished on the consequences of violating deferred adjudication probation. On July 15, 1991, Ray entered a plea of guilty without a plea agreement. On September 10, 1991, the trial court deferred finding Ray guilty and placed him on deferred adjudication probation for ten years. In February of 1993, the State filed a motion to proceed with adjudication of guilt, and on July 2, 1993, the trial court granted the State's motion, entered a finding of guilt, revoked Ray's probation, and sentenced him to life imprisonment. Neither the court of appeals nor the Texas Court of Criminal Appeals addressed the issue of jurisdiction, but both went on to address the merits of Ray's contentions attacking his original guilty plea occurring almost two years prior to his appeal.²

In the recent case of Ex parte McCullough, 966 S.W.2d 529, 531 (Tex. Crim. App. 1998), the Texas Court of Criminal Appeals stated that, just because an appellant could have appealed from an order placing him on deferred adjudication community supervision, but did not, does not affect jurisdiction. However, because McCullough arose out of a habeas corpus proceeding, it is not clear that this language was intended to allow an appellant to wait more than two years and four months, as in the instant case, or, depending on the length of the term of supervision imposed, even as long as ten years or more, to make a direct appeal of alleged errors occurring at the time of his initial trial.

The jurisprudence of this state dealing with appeals from orders placing defendants on deferred adjudication community supervision has not always been consistent. The statutory rules governing appeals in this area changed in the mid-1980's and, with the Texas Court of Criminal Appeals decision in Dillehey v. State, 815 S.W.2d 623 (Tex. Crim. App. 1991), an appellant was allowed to appeal immediately after being placed on deferred adjudication. Watson v. State, 924 S.W.2d 711, 713-15 (Tex. Crim. App. 1996) (citing Dillehey, 815 S.W.2d 623). This right to appeal is limited by the express terms of TEX. R. APP. P. 25.2, which requires the notice of appeal to (A) specify that the appeal is for jurisdictional defect, (B) specify that the substance of the appeal was raised by written motion and ruled on before trial, or (C) state that the trial court granted permission to appeal.³

The questions on what can be appealed have been more or less settled. The question the Texas Court of Criminal Appeals has not directly answered to date is when can these be appealed. Because Joyner, Ray, and McCullough may be construed to hold that an appellant placed on deferred adjudication community supervision is not restricted by the normal appellate timetables promulgated in TEX. R. APP. P. 26.2 to appeal alleged errors occurring at that original proceeding, we will, out of an abundance of precaution, address Cutrer's contentions on the merits.

First, Cutrer argues that the trial court's failure to admonish him on the consequences of his nolo contendere plea pursuant to TEX. CODE CRIM. PROC. ANN. art. 26.13 (Vernon 1989 & Supp. 1999) rendered his plea unknowing and involuntary. Article 26.13 governs the admonishments to be given by the court before accepting a plea of guilty or nolo contendere. Article 26.13(a) provides:

(a)Prior to accepting a plea of guilty or a plea of nolo contendere, the court shall admonish the defendant of:

(1)the range of the punishment attached to the offense;

(2) the fact that the recommendation of the prosecuting attorney as to punishment is not binding on the court. Provided that the court shall inquire as to the existence of any plea bargaining agreements between the state and the defendant and, in the event that such an agreement exists, the court shall inform the defendant whether it will follow or reject such agreement in open court and before any finding on the plea. Should the court reject any such agreement, the defendant shall be permitted to withdraw his plea of guilty or nolo contendere;

(3)the fact that if the punishment assessed does not exceed the punishment recommended by the prosecutor and agreed to by the defendant and his attorney, the trial court must give its permission to the defendant before he may prosecute an appeal on any matter in the case except for those matters raised by written motions filed prior to trial; and

(4)the fact that if the defendant is not a citizen of the United States of America, a plea of guilty or nolo contendere for the offense charged may result in deportation, the exclusion from admission to this country, or the denial of naturalization under federal law.

TEX. CODE CRIM. PROC. ANN. art. 26.13(a) (Vernon 1989). The court may make the admonitions required by Article 26.13 either orally or in writing. TEX. CODE CRIM. PROC. ANN. art. 26.13(d) (Vernon 1989). If the court makes the admonitions in writing, it must receive a statement signed by the defendant and the defendant's attorney that he understands the admonitions and is aware of the consequences of his plea. Id. When the record shows that a defendant was properly admonished, it presents a prima facie showing that the guilty plea was knowing and voluntary. Kirk v. State, 949 S.W.2d 769, 771 (Tex. App.-Dallas 1997, pet. ref'd); Richard v. State, 788 S.W.2d 917, 920 (Tex. App.-Houston [1st Dist.] 1990, no pet.). The burden then shifts to the defendant to show that he did not understand the consequences of his plea. Kirk, 949 S.W.2d at 771; Richard, 788 S.W.2d at 920.

The record in the instant...