Robinson, Wilbert Bernard v. State

• Court: Court of Appeals of Texas
• Decided: September 26, 2002
• Docket: 01-01-01220-CR
• Status: Published

Opinion

Opinion issued September 26, 2002

In The

Court of Appeals

For The

First District of Texas

NO. 01-01-01220-CR

WILBERT BERNARD ROBINSON, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 185th District Court

Harris County, Texas

Trial Court Cause No. 880927

O P I N I O N

Appellant, Wilbert Bernard Robinson, pled guilty to aggravated assault. In accordance with the terms of the plea bargain agreement, the trial court deferred adjudication of guilt and placed appellant on community supervision for eight years and 240 hours of community service. On September 12, 2001, the State filed a motion to adjudicate guilt, to which appellant entered a plea of true. The trial court found appellant guilty and assessed punishment at confinement for two years.

JURISDICTION

In two points of error, appellant complains that he received ineffective assistance of counsel at the original plea hearing that rendered his plea of guilty involuntary. Specifically, he claims his trial counsel failed to properly prepare or investigate his case before advising him to plead guilty.

Previously, the Court of Criminal Appeals has addressed whether, on appeal from an adjudication of guilt, a defendant may complain of error in the original plea proceeding. See Manuel v. State, 994 S.W.2d 658, 659 (Tex. Crim. App. 1999). In affirming the Second Court of Appeal's finding that it lacked jurisdiction to hear Manuel's appeal, the Court of Criminal Appeals held that:

[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 . . . 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.

Id. at 661-62.

A defendant placed on deferred adjudication may raise issues relating to the original plea proceeding only in appeals taken when deferred adjudication is first

imposed. See id. at 661; Marshall v. State, 995 S.W.2d 880, 881 (Tex. App.--Houston [1st Dist.] 1999, pet. ref'd). This includes complaints about the voluntariness of the prior plea of guilty, and complaints of ineffective assistance of counsel. See Webb v. State, 20 S.W.3d 834, 836 (Tex. App.--Amarillo 2000, no pet.) (ineffective assistance); Hanson v. State, 11 S.W.3d 285, 287 (Tex. App.--Houston [14th Dist.] 1999, pet. ref'd) (ineffective assistance claim); Clark v. State, 997 S.W.2d 365, 368-69 (Tex. App.--Dallas 1999, no pet.) (voluntariness claim).

In the instant case, appellant pleaded guilty and received deferred adjudication community supervision on July 3, 2001. On November 8, 2001, appellant's guilt was adjudicated and his community supervision was revoked. He could have appealed from the order placing him on deferred adjudication and could have raised his points of error following his original plea hearing. Based on the holding in Manuel, his failure to do so precludes us from now hearing the merits of his appeal. Because we have no jurisdiction to consider his points of error, we dismiss the appeal.

CONCLUSION

We dismiss this appeal for lack of jurisdiction.

Lee Duggan, Jr.

Justice

Panel consists of Justices Hedges, Keyes, and Duggan. ⁽¹⁾

Do not publish. Tex. R. App. P. 47.4.

1. The Honorable Lee Duggan, Jr., retired Justice, Court of Appeals, First District of Texas at Houston, participating by assignment.