Gray v. State

Court of Appeals of Texas

Gray v. State

134 S.W.3d 471, 2004 Tex. App. LEXIS 2603, 2004 WL 575199

CourtCourt of Appeals of Texas

DecidedMarch 17, 2004

Docket10-02-00176-CR

StatusPublished

Cited by23 cases

This text of 134 S.W.3d 471 (Gray v. State) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Gray v. State, 134 S.W.3d 471, 2004 Tex. App. LEXIS 2603, 2004 WL 575199 (Tex. Ct. App. 2004).

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MEMORANDUM OPINION

PER CURIAM.

Brandon Michael Gray pleaded guilty to aggravated sexual assault. Pursuant to a plea bargain, the court deferred an adjudication of guilt and placed Gray on community supervision for ten years. The court subsequently adjudicated Gray’s guilt and sentenced him to twenty years’ imprisonment. Gray contends in two points that: (1)the court erred by accepting his guilty plea without admonishing him that he would have to register as a sex offender; and (2) he received ineffective assistance of counsel during the adjudication hearing.

Gray’s first point concerns the admonishments the court gave him prior to accepting his guilty plea in the July 2001 hearing which led to the deferred adjudication order. Gray should have made this complaint in an appeal from the deferred adjudication order. Manuel v. State, 994 S.W.2d 658, 661-62 (Tex.Crim.App.1999); Munson v. State, 987 S.W.2d 905, 906 (Tex.App.-Waco 1999, pet. dism’d). His decision to do so at this juncture is untimely. Accordingly, we dismiss Gray’s first point.

Gray avers in his second point that he received ineffective assistance of counsel during the hearing on the State’s motion to adjudicate. Article 42.12, section 5(b) of the Code of Criminal Procedure prohibits Gray from raising these contentions on appeal. Tex.Code CRiM. PROC. Ann. art. 42.12, § 5(b) (Vernon Supp.2004); Connolly v. State, 983 S.W.2d 738, 741 (Tex.Crim.App.1999); see also Phynes v. State, 828 S.W.2d 1, 2 (Tex.Crim.App.1992) (art. 42.12, § 5(b) bars appellant from asserting denial of right to counsel by direct appeal). Accordingly, we dismiss his second point.

Some courts would dismiss this appeal for want of jurisdiction. E.g., Perinon v. State, 54 S.W.3d 848, 849 (Tex.App.Corpus Christi 2001, no pet.). We disagree with this approach. The Court of Criminal Appeals has plainly and repeatedly stated that, “[o]nce a notice of appeal has been timely filed in a case, the Court of Appeals obtains jurisdiction over the case.” Bayless v. State, 91 S.W.3d 801, 803 n. 2 (Tex.Crim.App.2002); accord Jones v. State, 796 S.W.2d 183, 186 (Tex.[473]*473Crim.App.1990). Thus, Gray’s notice of appeal conferred jurisdiction on this Court.

We have dismissed all of Gray’s points because, although we have jurisdiction, we may not address either of the claims he asserts. See Bayless, 91 S.W.3d at 803 n. 2. Accordingly, we affirm the judgment. See Olowosuko v. State, 826 S.W.2d 940, 942 (Tex.Crim.App.1992).

Chief Justice TOM GRAY dissenting.

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MEMORANDUM OPINION

PER CURIAM.

Brandon Michael Gray pleaded guilty to aggravated sexual assault. Pursuant to a plea bargain, the court deferred an adjudication of guilt and placed Gray on community supervision for ten years. The court subsequently adjudicated Gray’s guilt and sentenced him to twenty years’ imprisonment. Gray contends in two points that: (1)the court erred by accepting his guilty plea without admonishing him that he would have to register as a sex offender; and (2) he received ineffective assistance of counsel during the adjudication hearing.

Gray’s first point concerns the admonishments the court gave him prior to accepting his guilty plea in the July 2001 hearing which led to the deferred adjudication order. Gray should have made this complaint in an appeal from the deferred adjudication order. Manuel v. State, 994 S.W.2d 658, 661-62 (Tex.Crim.App.1999); Munson v. State, 987 S.W.2d 905, 906 (Tex.App.-Waco 1999, pet. dism’d). His decision to do so at this juncture is untimely. Accordingly, we dismiss Gray’s first point.

Gray avers in his second point that he received ineffective assistance of counsel during the hearing on the State’s motion to adjudicate. Article 42.12, section 5(b) of the Code of Criminal Procedure prohibits Gray from raising these contentions on appeal. Tex.Code CRiM. PROC. Ann. art. 42.12, § 5(b) (Vernon Supp.2004); Connolly v. State, 983 S.W.2d 738, 741 (Tex.Crim.App.1999); see also Phynes v. State, 828 S.W.2d 1, 2 (Tex.Crim.App.1992) (art. 42.12, § 5(b) bars appellant from asserting denial of right to counsel by direct appeal). Accordingly, we dismiss his second point.

Some courts would dismiss this appeal for want of jurisdiction. E.g., Perinon v. State, 54 S.W.3d 848, 849 (Tex.App.Corpus Christi 2001, no pet.). We disagree with this approach. The Court of Criminal Appeals has plainly and repeatedly stated that, “[o]nce a notice of appeal has been timely filed in a case, the Court of Appeals obtains jurisdiction over the case.” Bayless v. State, 91 S.W.3d 801, 803 n. 2 (Tex.Crim.App.2002); accord Jones v. State, 796 S.W.2d 183, 186 (Tex.[473]*473Crim.App.1990). Thus, Gray’s notice of appeal conferred jurisdiction on this Court.

We have dismissed all of Gray’s points because, although we have jurisdiction, we may not address either of the claims he asserts. See Bayless, 91 S.W.3d at 803 n. 2. Accordingly, we affirm the judgment. See Olowosuko v. State, 826 S.W.2d 940, 942 (Tex.Crim.App.1992).

Chief Justice TOM GRAY dissenting.

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134 S.W.3d 471, 2004 Tex. App. LEXIS 2603, 2004 WL 575199, Counsel Stack Legal Research, https://law.counselstack.com/opinion/gray-v-state-texapp-2004.

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