Tillman v. State

• Decision Date: 28 March 1996
• Docket Number: No. 2-94-437-CR,2-94-437-CR
• Citation: 919 S.W.2d 836
• Parties: Robert E. TILLMAN, Appellant, v. The STATE of Texas, State.
• Court: Texas Court of Appeals

Page 836

919 S.W.2d 836

Robert E. TILLMAN, Appellant, v. The STATE of Texas, State.

No. 2-94-437-CR.

Court of Appeals of Texas Fort Worth.

March 28, 1996.

Rehearing Overruled May 9, 1996.

Kerry P. FitzGerald, Dallas (on appeal only), for Appellant.

Tim Curry, Criminal District Attorney, Betty Marshall and Chuck Mallin, Assistant Chiefs of the Appellate Division, John A. Stride and Martin Purselley, Assistants, Fort Worth, for Appellee.

Before CAYCE, C.J., and LIVINGSTON and RICHARDS, JJ.

OPINION

CAYCE, Chief Justice.

Robert E. Tillman appeals his conviction for aggravated sexual assault of a child. Tillman pled guilty in accordance with a plea bargain agreement, and the trial court placed him on deferred adjudication probation for ten years. Tillman allegedly failed to meet the requirements of his probation, and the State moved to proceed to adjudication of Tillman's guilt. Two hearings were held on the State's motion. In the first hearing, Tillman pleaded true pursuant to a plea bargain to the allegation that he failed to report to his probation officer for a two-month period. The trial court accepted the plea and assessed Tillman fifteen years in the penitentiary.

Thereafter, Tillman filed a motion for new trial alleging that he had been misinformed by his trial counsel about the time he would actually have to serve in the penitentiary. The trial court found that Tillman's plea was involuntary and granted the motion. The court then held a second hearing on the State's motion to proceed to adjudication. At this hearing, Tillman pleaded not true to the allegation that he failed to report and failed to pay fees and true to the failure to complete sex offender treatment allegation.

After hearing the State's evidence, the trial court partially granted Tillman's motion for a directed verdict because the counseling service, not Tillman, terminated the sex offender treatment. After the presentation of defense evidence, however, the trial court found that Tillman had failed to report and pay as required by the terms and conditions of his probation. The trial court then sentenced Tillman to sixteen years in the penitentiary. We affirm the trial court's judgment.

Tillman asserts eight points of error complaining that there is no evidence to support the trial court's adjudication of guilt; that TEX.CODE CRIM.PROC.ANN. art. 42.12, § 5(b) (Vernon Supp.1996) violates the Equal Protection and Due Process Clauses of the Texas Constitution by precluding the right to appeal an adjudication of guilt; that he was denied effective assistance of counsel at the hearing on the State's motion to proceed to adjudication; that the trial court exercised judicial vindictiveness in increasing his sentence from fifteen to sixteen years upon rehearing; that the trial court failed to properly admonish him with respect to the deportation consequences of his guilty plea as required by TEX.CODE CRIM.PROC.ANN. art. 26.13(a)(4) (Vernon 1989); and that the trial court failed to properly admonish him about the consequences of violating his probation pursuant to article 42.12, section 5(b).

We will not address Tillman's first four points of error challenging the sufficiency of the evidence to support the trial court's adjudication of guilt, the constitutionality of article 42.12, section 5(b)'s prohibition against appeals from adjudications of guilt, and the effectiveness of Tillman's counsel because we have no jurisdiction to address those claims. The determination to adjudicate guilt may not be appealed. See TEX.CODE CRIM.PROC.ANN. art. 42.12, § 5(b); Phynes v. State, 828 S.W.2d 1, 2 (Tex.Crim.App.1992); Olowosuko v. State, 826 S.W.2d 940, 941-42 (Tex.Crim.App.1992); Edwards v. State, 835 S.W.2d 660, 663 (Tex.App.--Dallas 1992, no pet.).

Tillman asserts that the limitation of article 42.12, section 5(b) violates the Texas Constitution. We disagree. As the court of criminal appeals has observed, "[T]here is nothing in the Texas Constitution which guarantees the right to appeal a criminal conviction." Phynes, 828 S.W.2d at 2. The right to appeal a criminal conviction exists, if at all, only as provided by the legislature. Id.

Several courts of appeals, including this court, have rejected and dismissed constitutional challenges similar to those raised by Tillman. In Keller v. State, 854 S.W.2d 224 (Tex.App.--Beaumont 1993, pet. ref'd), the Ninth Court of Appeals dismissed the defendant's claims alleging that article 42.12, section 5(b)'s restriction upon a defendant's right to appeal violated the due process of law and equal protection provisions of the United States and Texas Constitutions. Id. at 225. The court of appeals held that the absence of a statutory right to appeal resulted in the court having no jurisdiction to entertain the issues raised. Id.; see also Rocha v. State, 903 S.W.2d 789, 791 (Tex.App.--Dallas 1995, no pet.) (dismissing allegation that inability to appeal decision to adjudicate guilt violated guarantee of equal protection); Richardson v. State, 847 S.W.2d 433, 433-34 (Tex.App.--Fort Worth 1993, no pet.) (dismissing defendant's claim that article 42.12 was unconstitutional); Elizondo v. State, 861 S.W.2d 294, 295-96 (Tex.App.--San Antonio 1993, no pet.) (dismissing defendant's claims that his adjudication hearing and the revocation of his probation were in violation of due process provisions of the United States and Texas Constitutions).

We also note that Tillman is not without remedy to raise claims of alleged violations of his constitutional rights. In Phynes, the defendant complained about the absence of counsel during adjudication of his guilt. Opining that direct appeal is not the proper vehicle to redress a violation of the right to counsel, the court implicitly observed that defendants who have been adjudicated guilty are not without remedy. Phynes, 828 S.W.2d at 2. In fact, a defendant may properly raise constitutional issues by way of a post-conviction writ of habeas corpus. See TEX.CODE CRIM.PROC.ANN. art. 11.07 (Vernon Supp.1996); Olowosuko, 826 S.W.2d at 942 n. 2 (Overstreet, J., concurring). Points of error one, two, three, and four are dismissed for want of jurisdiction.

We also will not address the complaints raised under points of error seven and eight that the trial court failed to give Tillman the required admonishments under articles 26.13(a)(4) and 42.12, section 5(a) because Tillman failed to meet the requirements of TEX.R.APP.P. 40(b)(1). According to Rule 40(b)(1), Tillman was required to state in his notice of appeal that the trial court granted him permission to appeal, or that the matters he now seeks to appeal were raised by written motion and ruled on before trial, in order for him to prosecute an appeal for either a nonjurisdictional defect occurring before or after the plea or an error that occurred prior to the entry of the plea. Id.; Rhem v. State, 873 S.W.2d 383, 384 (Tex.Crim.App.1994); Martinez v. State, 906 S.W.2d 651, 653 (Tex.App.--Fort Worth 1995, pet. filed). ¹ Compliance with Rule 40(b)(1) is jurisdictional. A general notice of appeal does not confer jurisdiction on a court of appeals to consider nonjurisdictional defects or errors occurring before or after the entry of a plea in a plea-bargained case. See TEX.R.APP.P. 40(b)(1); Montalbo v. State, 885 S.W.2d 160, 160-61 (Tex.Crim.App.1994); Lyon v. State, 872 S.W.2d 732, 736 (Tex.Crim.App.), cert. denied, --- U.S. ----, 114 S.Ct. 2684, 129 L.Ed.2d 816 (1994); Davis v. State, 870 S.W.2d 43, 46 (Tex.Crim.App.1994).

Here, Tillman's complaints under points of error seven and eight raise nonjurisdictional defects. However, Tillman's notice of appeal fails to state that he either secured the trial court's permission to appeal or that the matters he now seeks to appeal were raised by written motion and ruled on before trial. Tillman could have requested permission from the trial court to appeal these issues, but he failed to do so. Since none of the issues raised by Tillman under these two points of error are jurisdictional or errors occurring on appeal, and since Tillman was not granted permission to appeal on the grounds raised under his points of error, we are without jurisdiction to consider them. See Martinez v. State, 907 S.W.2d 34, 35-37 (Tex.App.--San Antonio 1995, pet. filed) (court of appeals without jurisdiction to consider failure to give admonishments under TEX.CODE CRIM.PROC.ANN. arts. 26.13(a)(1), (4), 42.12, § 5(a) because defendant did not comply with Rule 40(b)(1)); Martinez, 906 S.W.2d at 653-54 (court of appeals has no jurisdiction to consider sufficiency of the evidence, failure to admonish under 26.13, and failure to order presentence report before sentencing when requirements of TEX.R.APP.P. 40(b)(1) are not met). Points of error seven and eight are dismissed for want of jurisdiction.

In his fifth and sixth points of error, Tillman asserts that when the trial court increased his sentence upon rehearing, it exercised judicial vindictiveness in violation of the due process provisions of the United States and Texas Constitutions. We do have jurisdiction to address these points because once a defendant has been adjudicated guilty, he may challenge the sentence assessed. See Issa v. State, 826 S.W.2d 159, 160 (Tex.Crim.App.1992); Edwards v. State, 835 S.W.2d 660, 663 (Tex.App.--Dallas 1992, no pet.). Therefore, we find that Tillman may challenge the sentence assessed by the trial court in this case.

When a defendant is re-sentenced after a new trial, due process of law requires that vindictiveness play no part in assessing his sentence. Alabama v. Smith, 490 U.S. 794, 798, 109 S.Ct. 2201, 2204, 104 L.Ed.2d 865, 872 (1989); Wiltz v. State, 863 S.W.2d 463, 464 (Tex.Crim.App.1993). If a judge increases a defendant's sentence after a new trial, reasons for the increase must...