NO. 07-00-0405-CR
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL A
NOVEMBER 6, 2001
______________________________
AARON BROWN, APPELLANT
V.
THE STATE OF TEXAS, APPELLEE
_________________________________
FROM THE 72nd DISTRICT COURT OF LUBBOCK COUNTY;
NO. 96-422102; HONORABLE BRADLEY UNDERWOOD, JUDGE
_______________________________
Before BOYD, C.J., and REAVIS and JOHNSON, JJ.
Appellant Aaron Brown appeals his adjudication of guilt for the offense of retaliation
and the revocation of his community supervision. He urges that (1) the evidence was
insufficient to support a finding that he violated the terms of his probation, (2) the condition
of his probation requiring him to completely abstain from alcoholic beverages was illegal
and violation of that condition could not support revocation and (3) the trial court which
conducted the adjudication hearing was without jurisdiction. We affirm.
I. BACKGROUND
On September 12, 1997, pursuant to a plea bargain, appellant pled guilty to the
offense of retaliation in the 72nd District Court of Lubbock County. In accordance with the
plea bargain, adjudication of guilt was deferred and appellant was placed on community
supervision for five years. The plea was heard by, adjudication was deferred by, and
community supervision was imposed by the Honorable Bradley Underwood, acting under
an exchange of benches.
The State subsequently filed a Motion to Proceed With Adjudication of Guilt. Judge
Underwood, again acting under an exchange of benches, heard the State's amended
motion and determined that appellant violated terms of his probation order that required
appellant to (1) commit no offense against the laws of Texas or any other State or the
United States, and (2) maintain total abstinence from the use or possession of alcoholic
beverages and any narcotics or dangerous drugs not prescribed by a physician and
cooperate fully with the Community Supervision Officer and any other agency contracted
therewith to achieve rehabilitation of appellant. Judge Underwood adjudicated appellant
guilty of retaliation and revoked his community supervision. At the time he adjudicated
appellant, Judge Underwood affirmed to appellant that appellant did not have the right to
appeal the adjudication decision. Judge Underwood then conducted a sentencing hearing
and sentenced appellant to confinement in the Texas Department of Criminal Justice,
Institutional Division, for five years. Judge Underwood specified after the sentencing
hearing that appellant could appeal the sentencing decision. The Judgment Adjudicating
Guilt was styled as being in the 137th District Court of Lubbock County. Appellant filed a
notice of appeal setting out three bases for appeal: (1) a general notice paragraph as to
the adjudication of guilt and sentence, (2) a statement that the appeal was from the denial
of a written pretrial motion ruled on before the adjudication hearing and (3) an assertion
that the trial court gave permission to appeal.
By three issues appellant urges reversible error in the adjudication of guilt and
revocation of his community supervision. His first issue asserts insufficiency of the
evidence to prove that appellant violated any laws of the State of Texas. His second issue
urges that the condition of his probation requiring him to totally abstain from the use of
alcohol was unauthorized by statute, was illegal, and therefore could not be the basis for
revocation of his community supervision. His third issue asserts that the trial court was
without jurisdiction to hear the revocation proceeding because the prosecution and
deferred adjudication order were in the 72nd District Court of Lubbock County, the record
did not contain an order transferring jurisdiction to the 137th District Court of Lubbock
County, and pursuant to Tex. Crim. Proc. Code Ann. art. 42.12 § 10(a) (Vernon Supp.
2001), (1) the 137th District Court of Lubbock County was without jurisdiction to hear and rule
on the adjudication motion.
II. LAW
A threshold question in any case is whether the court has jurisdiction over the
pending controversy. See State v. Roberts, 940 S.W.2d 655, 657 (Tex.Crim.App. 1996).
Jurisdiction is the power of the court over the subject matter of the case, conveyed by
statute or constitutional provision, id., coupled with personal jurisdiction over the parties.
Flowers v. State, 935 S.W.2d 131, 134 n.4 (Tex.Crim.App. 1996). Courts will address the
question of jurisdiction sua sponte. Roberts, 940 S.W.2d at 657. For, unless a court has
jurisdiction over a matter, its actions in the matter are without validity. Id. at 657 n.2.
The Rules of Appellate Procedure do not establish jurisdiction of courts of appeals,
but, rather, provide procedures which must be followed in order to invoke jurisdiction over
a particular appeal. See Olivo v. State, 918 S.W.2d 519, 523 (Tex.Crim.App. 1996). If the
jurisdiction of a court of appeals is not properly invoked, the power of the appellate court to
act is as absent as if it did not exist, id. (quoting Ex parte Caldwell, 383 S.W.2d 587, 589
(Tex.Crim.App. 1964)), and the appeal will be dismissed for lack of jurisdiction. See State
v. Riewe, 13 S.W.3d 408, 413-14 (Tex.Crim.App. 2000). If appeal as to an issue or matter
is properly perfected as to form, a court must examine the record underlying the notice of
appeal to determine if jurisdiction substantively exists as to the issue or matter in question.
See Sherman v. State, 12 S.W.3d 489, 492 (Tex.App.--Dallas 1999, no pet.). Dismissal of
an issue or the entire matter is appropriate unless both (1) the form of the notice of appeal
is proper to perfect appeal as to the issue or matter, see Lyon v. State, 872 S.W.2d 732,
736-37 (Tex.Crim.App. 1994), and (2) the alleged jurisdiction is supported by the record.
See Sherman, 12 S.W.3d at 492. In other words, if Tex. R. App. P. 25.2(b)(3) (2) is applicable,
then for an appellate court to have its jurisdiction invoked over a matter, compliance with
TRAP 25.2(b)(3) is required as to both form and substance. Id.
The requirements of TRAP 25.2(b)(3) apply to a defendant who plea bargains for
deferred adjudication. See Vidaurri v. State, 49 S.W.3d 880, 883 (Tex.Crim.App. 2001).
To perfect appeal from a judgment which was rendered on the defendant's plea of guilty or
nolo contendere under Code of Criminal Procedure article 1.15, and in which the
punishment assessed did not exceed the punishment recommended by the prosecutor and
agreed to by the defendant, the notice of appeal must (a) specify that the appeal is for a
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.
TRAP 25.2(b)(3); Young v. State, 8 S.W.3d 656, 666-67 (Tex.Crim.App. 2000).
An appellant whose deferred adjudication probation has been revoked and who has
been adjudicated guilty of the original charge, may not, on appeal, raise contentions of
error in the adjudication of guilt process. Code of Criminal Procedure article 42.12, § 5(b);
Connolly v. State, 983 S.W.2d 738, 741 (Tex.Crim.App. 1999).
III. ANALYSIS
A. Issue One: Insufficiency of the evidence to prove
violation of a term of probation
Appellant's first issue asserts that the trial court abused its discretion in finding that
appellant violated the terms of his probation. He urges that the evidence was insufficient
to prove by a preponderance of the evidence that appellant violated a law. We conclude
that we do not have jurisdiction over the issue, and even if we had jurisdiction, appellant
is precluded from raising the issue on appeal.
Appellant's Notice of Appeal generally states his intent to appeal the trial court's
ruling adjudicating him guilty, revoking his community supervision and assessing his
punishment at five years confinement. Thereafter, the Notice specifies that (1) appellant
intends to appeal a ruling denying a written pretrial motion which was ruled on before the
adjudication hearing, and (2) the trial court gave permission to appeal the ruling
adjudicating guilt and revoking community supervision.
Issue one does not relate to denial of a written pretrial motion. And, although his
Notice of Appeal states that the trial court granted permission to appeal the ruling
adjudicating guilt, see TRAP 25.2(b)(3)(C), the record reflects that the trial court did not give
such permission, even assuming arguendo, that the provisions of the Code of Criminal
Procedure would have allowed the trial court to do so. See Code of Criminal Procedure
article 42.12, § 5(b). Nor does the issue address a jurisdictional issue as to the trial court.
The issue is not encompassed within appellant's Notice of Appeal.
Because our appellate jurisdiction in this matter has not been invoked by compliance
with TRAP 25.2(b)(3) in either form or substance, we must dismiss the issue. See
Sherman, 12 S.W.3d at 492.
Moreover, appellant may not, on appeal, raise contentions of error in the process
by which his guilt was adjudicated. See Code of Criminal Procedure article 42.12, § 5(b);
Connolly, 983 S.W.2d at 741.
B. Issue Two:
The condition of probation requiring appellant to completely
abstain from using alcoholic beverages was illegal.
Appellant next urges that in setting the terms of his deferred adjudication community
supervision the trial court imposed an unreasonable, and therefore illegal, condition by
requiring him to abstain completely from the use of alcohol. See Code of Criminal
Procedure article 42.12, § 11. He asserts that the requirement was unreasonable, and
therefore illegal, because it bore no reasonable relationship to the retaliation offense which
was the basis for imposition of community supervision. The substance of his appellate
issue, as set out in his Notice of Appeal, relates to the trial court's overruling of a written
motion which was heard before the adjudication hearing, not to a motion made and ruled
on before the hearing at which he pled guilty and received deferred adjudication.
We again first determine whether appellant perfected his appeal and invoked our
appellate jurisdiction on this issue. See Riewe, 13 S.W.3d at 413-14. First, we observe that
appellant does not urge that this issue involves a jurisdictional defect. See TRAP
25.2(b)(3)(A). Next, we reiterate our previous determination that the trial court did not give
appellant permission to appeal the ruling adjudicating guilt and revoking community
supervision, even if the court could have properly done so. See TRAP 25.2(b)(3)(B). We
lastly address the statement in appellant's Notice of Appeal that he is appealing the denial
of a written pretrial motion ruled on before the adjudication hearing. See TRAP
25.2(b)(3)(C).
The Legislature provided that contentions that error occurred in the process by which
a defendant's guilt was adjudicated may not be raised on appeal. See Code of Criminal
Procedure article 42.12, § 5(b); Connolly, 983 S.W.2d at 741. When we consider the
statement in appellant's notice of appeal to the effect that the substance of the appeal was
raised by written motion ruled on before the adjudication hearing, and the record which
shows that his motion was filed after the hearing at which appellant pled guilty and
received deferred adjudication, we conclude that our jurisdiction has not been invoked by
the form of appellant's Notice of Appeal or the substance of the record. See Sherman, 12
S.W.3d at 492. We, therefore, must dismiss the claims made in appellant's second issue. C. Issue Three: The trial court lacked jurisdiction
to hear the matter
By his third issue appellant challenges the jurisdiction of the 137th District Court of
Lubbock County to hear the State's motion to adjudicate. He bases his issue on his claim
that the prosecution and order for deferred adjudication and imposition of community
supervision were entered in the 72nd District Court of Lubbock County, and the record
does not contain an order indicating that jurisdiction was transferred to the 137th. He cites
LaBelle v. State, 692 S.W.2d 102 (Tex.Crim.App. 1985), and references Code of Criminal
Procedure article 42.12 § 10(a) which provides that only the court in which a defendant was
tried may revoke community supervision, unless the judge has transferred jurisdiction of
the case to another court.
The docket sheet shows that appellant's case was originally assigned to the 72nd
District Court, and that on September 12, 1997, Judge Underwood, "Under Exchange of
Benches," heard appellant's guilty plea, deferred appellant's adjudication and granted him
community supervision. The Order for Deferred Adjudication signed by Judge Underwood
on September 12, 1997, is styled as being in the 72nd District Court and specifically sets
out that Judge Underwood presided "Under Exchange of Benches." The State's original
and amended motions to proceed with adjudication are styled in the 72nd District Court.
Prior to the adjudication hearing, appellant filed motions styled with the proper trial court
cause number, 96-422,102, but with the 137th District Court in the style of the case.
Neither the docket sheet nor any other evidence in the record supports appellant's claim
that the case was transferred from the 72nd District Court to the 137th District Court. The
docket sheet entry for the adjudication hearing shows that Judge Underwood again
presided "Under Exchange of Benches." The style of the Judgment Adjudicating Guilt
contains the correct trial court cause number, but shows the case as being in the 137th
District Court.
Tex. Gov't Code Ann. § 24.303(a) (Vernon 1988) authorizes the exchange of
benches by district judges of counties in which there are two or more district courts.
Appellant did not object to Judge Underwood presiding under an exchange of benches at
either the original hearing at which appellant pled guilty and received deferred adjudication,
or at the adjudication hearing. Nor does appellant assert error on appeal because Judge
Underwood presided via exchange of benches.
The record does not indicate that appellant's case was transferred from one court
to another. Rather, the record indicates a clerical error in the style of the case on the
Judgment Adjudicating Guilt. Thus, the record does not show that jurisdiction of the case
was transferred in violation of Code of Criminal Procedure article 42.12 § 10(a).
Appellant's third issue is overruled.
IV. CONCLUSION
Appellant's first and second issues are dismissed; his third issue is overruled. We
modify the style of the August 11, 2000, Judgment Adjudicating Guilt to the following: "The
State of Texas vs. Aaron Brown, No. 96-422,102 in the 72nd District Court of Lubbock
County, Texas." As modified, the judgment is affirmed. TRAP 43.2(b).
Phil Johnson
Justice
Do not publish.
1. Further references to the Code will reference the "Code of Criminal Procedure."
2.
A rule of appellate procedure will be referred to as "TRAP_" hereafter.