Manuel v. State

• Citation: 994 S.W.2d 658
• Parties: (Tex.Crim.App. 1999) CLINTON DON MANUEL, Appellant v. THE STATE OF TEXAS NO. 1477-98
• Decision Date: 02 June 1999
• Court: Texas Court of Criminal Appeals

Page 658

994 S.W.2d 658 (Tex.Crim.App. 1999)

CLINTON DON MANUEL, Appellant v. THE STATE OF TEXAS

NO. 1477-98

IN THE COURT OF CRIMINAL APPEALS OF TEXAS

June 2, 1999

ON APPELLANT'S PETITION FOR DISCRETIONARY REVIEW FROM THE SECOND COURT OF APPEALS TARRANT COUNTY

O P I N I O N

MANSFIELD, J., delivered the opinion of the Court, in which McCORMICK, P.J., and KELLER, PRICE, HOLLAND, WOMACK, and KEASLER, JJ., joined. JOHNSON, J., delivered a dissenting opinion, in which MEYERS, J., joined.

This case presents the following question: If a defendant pleads guilty to a felony offense, is placed on deferred adjudication community supervision, and is later adjudicated guilty, may he then, on appeal, complain of error in the original plea proceeding?

The Relevant Facts

On October 2, 1992, a Tarrant County grand jury returned an indictment in the 372nd District Court charging appellant, Clinton Don Manuel, with one count of indecency with a child by contact and one count of aggravated sexual assault of a child. See Tex. Pen. Code 21.11(a)(1) & 22.021(a)(1)(B)(iii). On October 27, 1993, appellant pled guilty, pursuant to a plea bargain, to indecency with a child. After hearing the evidence and finding that it substantiated appellant's guilt, the district court, acting in accordance with the plea bargain, deferred further proceedings without entering a finding of guilt and placed appellant on community supervision (i.e., probation) for three years.¹ The trial court noted on its docket sheet that it was not giving appellant permission to appeal.²

On September 11, 1996, the State filed a motion to revoke appellant's community supervision and proceed to judgment, alleging that appellant had violated the conditions of his community supervision. On July 7, 1997, the district court held a hearing on the State's motion and, after hearing evidence, found that appellant had indeed violated the conditions of his community supervision as alleged. The district court then adjudged appellant guilty of the original charge and sentenced him to imprisonment for twenty years. Appellant filed a general notice of appeal.

On appeal, appellant argued that his conviction had been obtained in violation of Article 1.15 and Texas Constitution article I, 19, because the evidence adduced at the original plea proceeding had been insufficient to prove his guilt.³ The Second Court of Appeals held, however, that it lacked jurisdiction to consider appellant's argument:

Appellant's complaint arises from his conviction and punishment, not the revocation of his community supervision. Therefore, he was required to appeal within 30 days after he was placed on community supervision in September [sic] 1993. See Tex. R. App. P. 26.2(a)(1) (where no motion for new trial is filed, defendant must appeal within 30 days after sentence is imposed or suspended); Tex. Code Crim. Proc. Ann. art. 42.12, 23(b) (Vernon Sup. 1998) (defendant's right to appeal conviction and punishment accrues when defendant is placed on community supervision).

Because appellant did not appeal his conviction and sentence until after his community supervision was revoked, his appeal is untimely. Insofar as the appeal relates to the original cause in which appellant received deferred adjudication community supervision, we dismiss the appeal for want of jurisdiction.

Manuel v. State, 981 S.W.2d 65, 67 (Tex.App--Fort Worth 1998).⁴

We granted appellant's petition for discretionary review to determine whether the court of appeals had erred in refusing to address appellant's argument. See Tex. R. App. Proc. 66.3(b). Appellant argues now that "the court of appeals misconstrued both Art. 42.12, 23(b), and Rule 26.2(a)(1) [because a] grant of deferred adjudication community supervision is not a final conviction for purposes of [those] statutes [sic]." Appellant argues further that he should be allowed to raise the question of evidentiary sufficiency on appeal from the adjudication of guilt, because "[u]ntil and unless a trial court proceeds to adjudication, no violation of Art. 1.15 is possible."

Analysis

Our deferred adjudication statute, as set out in relevant part in footnote one, supra, was first enacted in 1975. See Act of May 7, 1975, 64th Legis., R.S., ch. 231, 1, 1975 Tex. Gen. Laws 572. In 1981, we held that the "clear import" of the statute was "to preclude appellate review of an order deferring adjudication." McDougal v. State, 610 S.W.2d 509, 509 (Tex.Crim.App. 1981). We explained that, under the statute, "[i]f a defendant is dissatisfied with the decision to defer adjudication or with the terms and conditions of the order, his proper remedy is to move for final adjudication as provided in Art. 42.12, Sec. [5(a)]. After adjudication of guilt, a defendant's normal appellate remedies are available to him [under Article 42.12, 5(b)]." Ibid. At that time it was also true, under the statute, that a defendant whose deferred adjudication probation was revoked could appeal from that revocation and raise a claim of error arising from the original plea proceeding. David v. State, 704 S.W.2d 766, 767 (Tex.Crim.App. 1985); Wright v. State, 592 S.W.2d 604, 605 (Tex.Crim.App. 1980).

In 1987, Article 44.01(j) was enacted, and it made a significant change in deferred adjudication law.⁵ We have determined that the legislative intent in enacting Article 44.01(j) was to permit defendants to appeal from deferred adjudication community supervision to the same extent (i.e., with the same rights and restrictions) as defendants are permitted to appeal from "regular" community supervision. Feagin v. State, 967 S.W.2d 417, 419 n. 2 (Tex.Crim.App. 1998); Watson v. State, 924 S.W.2d 711, 714 (Tex.Crim.App. 1996); Kirby v. State, 883 S.W.2d 669, 671 n. 3 (Tex.Crim.App. 1994); Dillehey v. State, 815 S.W.2d 623, 625 (Tex.Crim.App. 1991).

We have long held that a defendant placed on "regular" community supervision may raise issues relating to the conviction, such as evidentiary sufficiency, only in appeals taken when community supervision is originally imposed. Whetstone v. State, 786 S.W.2d 361, 363 (Tex.Crim.App. 1990); Traylor v. State, 561 S.W.2d 492, 494 (Tex.Crim.App. 1978); Patterson v. State, 487 S.W.2d 736, 737 (Tex.Crim.App. 1972); Pitts v. State, 442 S.W.2d 389, 390 (Tex.Crim.App. 1969); Gossett v. State, 282 S.W.2d 59, 62 (Tex.Crim.App. 1955). That is, such issues may not be raised in appeals filed after "regular" community supervision is revoked. Given the legislative intent behind Article 44.01(j), we now hold that this rule also applies in the deferred adjudication context. In other words, a defendant placed on deferred adjudication community supervision may raise issues relating to the original plea proceeding, such as evidentiary sufficiency, only in appeals taken when deferred adjudication community supervision is first imposed. Certainly, it was not the Legislature's intent, in enacting Article 44.01(j), to permit two reviews of the legality of a deferred adjudication order, one at the time deferred adjudication community supervision is first imposed and another when, and if, it is later revoked. Compare Gossett v. State, 282 S.W.2d at 62.

In the case at bar, appellant could have appealed from the order placing him on deferred adjudication community supervision, and could have argued at that time that the evidence was insufficient to substantiate his guilt. See Article 42.12, 5(a), footnote one, supra. Instead, he waited until after his community supervision had been revoked and his adjudication of guilt formally made. Thus, the court of appeals did not err in refusing to address the merits of his claim.

There is a second reason why the court of appeals did not err in refusing to address the merits of appellant's claim. As the record reflects, appellant's general notice of appeal, even assuming it was timely, did not comply with Texas Rule of Appellate Procedure 40(b)(1), because it did not state--indeed, could not truthfully state--that the trial court had given permission for the appeal.⁶ See footnote two, supra, and accompanying text. Thus, the court of appeals lacked jurisdiction over the appeal. Davis v. State, 870 S.W.2d 43, 45-47 (Tex.Crim.App. 1994).

We affirm the judgment of the court of appeals.

JOHNSON, J., filed a dissenting opinion, in which MEYERS, J., joined.

D I S S E N T I N G O P I N I O N

JOHNSON, J., filed a dissenting opinion, in which MEYERS, J., joined.

I respectfully dissent. We granted appellant's petition for discretionary review to determine whether the Court of Appeals erred in dismissing appellant's appeal without ruling on the merits of each point of error. The Court of Appeals dismissed for want of jurisdiction under TEX. CODE CRIM. PROC. art.42.12, 23(b) and TEX. R. APP. 26.2(a)(1), as appellant had not appealed within thirty days after being placed on deferred adjudication.

The majority first overrules this ground for review on the same basis as the Court of Appeals; a defendant who is placed on deferred-adjudication community supervision may raise non-jurisdictional issues relating to the original plea proceeding, such as appellant's insufficiency claim, only in appeals taken when the deferred-adjudication community supervision is first imposed. Ante, at 661-62. The majority goes on to note that the trial court had, on the docket sheet, expressly refused permission to appeal. Ante, at 659-60. Thus, the Court of Appeals could have reached the same result on the alternate ground that appellant's notice of appeal did not comply with TEX. R. APP. P. 40(b)(1). Ante, at 659.¹ The Court of Appeals therefore reached the correct result, regardless of the reason.

In these circumstances, we should either dismiss the petition as improvidently granted,² or affirm the judgment of the Court of Appeals on a limited basis.³ Because the majority does neither, I dissent.

1. Article 42.12, 5, of the Texas Code of Criminal Procedure provides in relevant part:

(a) ...