Vidaurrl v. State

• Decision Date: 20 June 2001
• Docket Number: No. 151-99,151-99
• Citation: 49 S.W.3d 880
• Parties: (Tex.Crim.App. 2001) GARY JEFFERSON VIDAURRI, Appellant v. THE STATE OF TEXAS
• Court: Texas Court of Criminal Appeals

Page 880

49 S.W.3d 880 (Tex.Crim.App. 2001)

GARY JEFFERSON VIDAURRI, Appellant v. THE STATE OF TEXAS

No. 151-99

COURT OF CRIMINAL APPEALS OF TEXAS

June 20, 2001

ON APPELLANT'S PETITION FOR DISCRETIONARY REVIEW FROM THE SEVENTH COURT OF APPEALS POTTER COUNTY

Before the court en banc.

OPINION

Meyers, J., delivered the opinion of the Court, joined by Holland, Price, Holcomb, and Hervey, J.J..

Appellant entered a plea of guilty to a felony charge of indecency with a child and, pursuant to a plea bargain, was placed on ten years deferred adjudication . The State subsequently filed a Motion to Proceed with Adjudication of Guilt, alleging appellant had violated three of his deferred adjudication conditions. Appellant pled not true to all three alleged violations, was tried in the District Court and adjudicated guilty of the original charge. Appellant was immediately sentenced to twelve years in the Texas Department of Corrections.

On appeal, appellant argued the trial court erred in failing to afford him a punishment hearing prior to sentencing. The Seventh Court of Appeals, noting that appellant filed a general notice of appeal, held that Texas Rule of Appellate Procedure 25.2(b)(3) prevented the court from exercising jurisdiction over appellant's claim and dismissed that portion of the appeal.¹ The appellate court reasoned that, when appellant pled guilty and was placed on deferred adjudication pursuant to a plea bargain, his appeal became subject to the Rule 25.2(b)(3) restrictions, relying on Watson v. State, 924 S.W.2d 711 (Tex. Crim. App. 1996). Because appellant had not met any of the Rule 25.2(b)(3) requirements, the appellate court held that it could only address points of error concerning jurisdictional defects or the voluntariness of his plea.² Because appellant's claim that the trial court improperly denied him a punishment hearing was not a jurisdictional defect, the Court of Appeals held it could not be considered. The appellate court went on to add that, even if it had jurisdiction to consider appellant's claim, appellant waived any potential complaint by failing to object to the error when it occurred or afterwards. Vidaurri v. State, 981 S.W.2d 478 (Tex. App. - Amarillo 1998).

We granted appellant's petition for discretionary review to determine whether the Court of Appeals erred in holding that Rule 25.2(b)(3) limits appellant's right to appeal even though appellant pled not true to the alleged violations of the deferred adjudication conditions probation and, if the appellate court was in error, whether it was also error to hold appellant waived any potential complaint by failing to object to the lack of a separate punishment hearing.³

II.

Appellant first claims that Rule 25.2(b)(3) is not applicable to his case because he pled not true to the alleged violations of the deferred adjudication conditions. Appellant refers to the lower court's reliance on Watson v. State, supra, as "misplaced", arguing that Watson is not controlling here because the defendant in Watson pled true to the alleged violations of the deferred adjudication conditions . Appellant argues that because he pled not true to the alleged violations there was no "plea of guilty" and his appeal is not limited by Rule 25.2(b)(3).

We explained in Watson that, "when a prosecutor recommends deferred adjudication in exchange for a defendant's plea of guilty or nolo contendere, the trial judge does not exceed that recommendation if, upon proceeding to an adjudication of guilt, he later assesses any punishment within the range allowed by law." Watson, 924 S.W.2d at 714. Therefore, when a defendant pleads guilty in exchange for deferred adjudication, that initial plea triggers the application of Rule 40(b)(1), now Rule 25.2(b)(3), limitations to his appeal. Id. at 715.

Although the defendant in Watson pled true to the alleged violations of the deferred adjudication conditions, our opinion did not rely on that fact when we held that the appeal was limited by Rule 40(b)(1), now Rule 25.2(b)(3). With the exception of a brief reference to the defendant's plea of true in the facts, the plea entered regarding the alleged violations of the deferred adjudication conditions was not referred to at all in our opinion. Rather, our analysis focused on the nature of the plea made in exchange for the State's recommendation of deferred adjudication:

a defendant who trades a plea of guilty or nolo contendere for a recommendation by the prosecutor that a judgment of guilt be delayed while he serves a period of community supervision necessarily accepts, at least in the absence of some express agreement to the contrary, that the prosecutor is making no recommendation at all concerning the term of years he may be required to serve if his probation is later revoked and the trial court proceeds to adjudicate him guilty of the charged offense.

Id. at 714. The defendant's knowledge, at the time of his original plea, that he might receive any sentence within the range allowed by law means that "the punishment assessed did not exceed the punishment recommended by the prosecutor and agreed to by the defendant" and Rule 25.2(b)(3) applies. There is nothing in Watson to suggest that this reasoning is affected by whether the defendant pled true or not true to the alleged violations of deferred adjudication conditions . It is the defendant's initial plea of guilty or nolo contendere to the charged offense which warrants application of Rule 25.2(b)(3), not the later plea of true or not true to the alleged violations.

In Ex Parte Howard, 685 S.W.2d 672 (Tex. Crim. App. 1985), this Court held the defendant's right to appeal was limited by Code of Criminal Procedure Article 44.02, now Rule 25.2(b)(3). Although we noted that "[i]t should be kept in mind that [appellant's] plea of 'true' to the allegations of the motion to proceed to adjudication was also made pursuant to a plea bargain," there was no indication by the Court that this fact played any part in the decision to apply the appeal limitations to the defendant's case. Id. at 673 n.2. Later, in Brown v. State, 943 S.W.2d 35 (Tex. Crim. App. 1997), we reaffirmed the holding in Watson with no mention of any distinction between defendants who plead true to the alleged violations of deferred adjudication conditions and defendants who plead not true. The Court stated that " a plea-bargaining defendant has no avenue for relief. Under Texas Rule of Appellate Procedure 40(b)(1) [now Rule 25.2(b)(3)], a plea-bargaining defendant is barred from appealing nonjurisdictional errors occurring before and after entry of his plea unless: (1) the trial court gives permission to appeal; or (2) the matter to be appealed was raised by written motion and ruled on before trial." Id. at 41 (citing Rule 40(b)(1) and Lyon v. State, 872 S.W.2d 732 (Tex. Crim. App. ), cert. denied, 512 U.S. 1209 (1994)).

In all of the above-referenced cases we based our decision to apply Rule 25.2(b)(3) appeal limitations to appeals from adjudication of guilt on the nature of the initial plea-bargaining process, not on the plea of the defendant as to the State's allegations regarding violation of deferred adjudication conditions at the adjudication hearing. Because the defendant is appealing the sentence he received based on his initial plea of guilty to the original charge, his plea to the alleged violations of the deferred adjudication conditions is irrelevant. There is nothing in the language of Rule 25.2(b)(3) that would indicate otherwise, nor have we ever maintained that the defendant's plea concerning the alleged violations of deferred adjudication conditions hearing impacts his right to appeal.

III.

Appellant next argues that a defendant who contests the alleged violations of the deferred adjudication conditions is in the same position as a defendant contesting regular probation revocation and Rule 25.2(b)(3) limitations should not apply underFeagin v. State, 967 S.W.2d 417 (Tex. Crim. App. 1998). In Feagin, the defendant was convicted, sentenced and placed on probation. The State later filed a motion to revoke probation. The defendant filed a motion to dismiss the State's motion to revoke probation on the ground that the State failed to exercise due diligence in apprehending her. Id. at 418. The defendant's motion was denied by the trial court and the defendant's probation was revoked and she was sentenced. The defendant appealed the denial of her motion. The State argued that the appellate court did not have jurisdiction over the appeal under Rule 40(b)(1), now Rule 25.2(b)(3). The Court of Appeals disagreed, holding that Rule 40(b)(1) did not apply because the plea agreement was separate from the probation revocation hearing. This Court affirmed the appellate court's decision, holding that Rule 40(b)(1), now Rule 25.2(b)(3), is inapplicable to appeals attacking the propriety of orders revoking probation, even though the probation was a result of a guilty plea. Id. at 419.

Our analysis in Feagin focused on one of the main purposes of Rule 25.2(b)(3), judicial economy:

A significant advantage of plea bargaining is that appellate review of disputed legal issues can be expedited by exchanging a plea of guilty for a punishment recommendation. Substantial judicial resources are thereby conserved, because the State can secure an acceptable disposition of a pending criminal case and the defendant can obtain expeditious appellate review of contested legal matters without the necessity of a full adversarial trial.

Id. at 429 (citing Watson v. State, 924 S.W.2d 711, 714 (Tex. Crim. App. 1996)). The restrictions which ensure judicial economy, limitations on the defendant's right to appeal a conviction based on a plea bargain, are applicable to appeals concerning the conviction itself. But if a defendant is appealing an "issue which [is] unrelated to [his] conviction," then Rule 25.2(b)(3) should not apply because the purpose behind the Rule...