Opinion issued May 22, 2003
In The
Court of Appeals
For The
First District of Texas
NO. 01-02-00514-CR
CLAYTON JOHN TOLIVER, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 337th District Court
Harris County, Texas
Trial Court Cause No. 871,355
MEMORANDUM OPINION
Appellant, Clayton John Toliver, challenges his adjudication of guilt for possession of less than one gram of cocaine. In two points of error, appellant claims that the trial court erred in “punishing” him for certain violations of his community supervision. The State argues appellant’s general notice of appeal failed to invoke this Court’s jurisdiction.
We affirm.
Background
Pursuant to appellant’s plea agreement with the State, the trial court placed appellant on deferred adjudication community supervision for three years, and assessed a fine of $350. Appellant did not appeal that ruling. Later, the State moved to adjudicate guilt. The trial court adjudicated appellant guilty and sentenced him to two years’ confinement and assessed a $1000 fine. In support of the adjudication, the trial court found that appellant violated the terms and conditions of his community supervision by failing to avoid injurious and vicious habits and by failing to pay certain fees. Appellant filed a “general” notice of appeal.
Jurisdiction
As a threshold matter, we discuss the State’s contention that we are without jurisdiction to consider the merits of this appeal under former Rule of Appellate Procedure 25.2(b)(3). Pursuant to the former rule, a defendant who pled guilty or nolo contendere pursuant to a plea bargain to a felony charge and was sentenced in accordance with that plea bargain had to comply with the notice provisions of that rule to perfect his appeal. Former Tex. R. App. P. 25.2(b)(3), 948-949 S.W.2d (Tex. Cases) XLI, XCVI (Tex. Crim. App. 1997). The former rule required a notice of appeal filed by such a defendant to (1) specify that the appeal is for a jurisdictional defect, (2) specify that the substance of the appeal was raised by written motion and ruled on before trial, or (3) state that the trial court granted permission to appeal. Id. When former Rule 25.2(b)(3) applies, the failure of an appellant to follow the rule deprives this Court of jurisdiction over the appeal. Id.; White v. State, 61 S.W.3d 424, 428-29 (Tex. Crim. App. 2001) (holding that failure to follow former Rule 25.2(b)(3)(A) was jurisdictional). Furthermore, former Rule 25.2(b)(3)’s notice provisions apply to defendants who are placed on deferred adjudication probation. Woods v. State, 68 S.W.3d 667, 669 (Tex. Crim. App. 2002); Vidaurri v. State, 49 S.W.3d 880, 884-85 (Tex. Crim. App. 2001). A review of appellant’s notice of appeal shows that it does not comply with Rule 25.2(b)(3). However, when an appellant raises an issue on appeal unrelated to his conviction, former Rule 25.2(b)(3) limitations do not apply. See Vidaurri, 49 S.W.3d at 885 (holding Rule 25.2(b)(3) limitations do not apply to appellant’s complaint that he was deprived of separate punishment hearing).
Additionally, a defendant whose deferred adjudication has been revoked and who has been adjudicated guilty of the original charge may not complain of error in the adjudication of guilt on appeal. Tex. Code Crim. Proc. Ann. art. 42.12, § 5(b) (Vernon Supp. 2003); Rodriquez v. State, 992 S.W.2d 483, 484 (Tex. Crim. App. 1999); Connolly v. State, 983 S.W.2d 738, 741 (Tex. Crim. App. 1999). Although we may not review a trial court’s decision to proceed with an adjudication of guilt on the original charge, we may consider issues related to the trial court’s assessment of punishment. See Kirtley v. State, 56 S.W.3d 48, 51-52 (Tex. Crim. App. 2001s).
In his first point of error, appellant contends that the evidence presented by the State was insufficient to show that he had engaged in injurious and vicious habits. Specifically, appellant complains of the State’s evidence that he had tested positive for cocaine while on community supervision. As a sub-part of point of error one, appellant challenges his two-year sentence. Appellant contends that the State argued that he should be given the maximum sentence based on his continued drug use. Appellant complains that, because the evidence of his drug use was insufficient to support his conviction, it also could not support giving him the maximum sentence.
In point of error two, appellant contends that the evidence was insufficient to show that appellant had failed to pay certain fees that were required as conditions of his community supervision.
Although framed in his briefing as complaints about his punishment, appellant’s complaints regarding the sufficiency of the State’s evidence to prove that he violated certain conditions of his community supervision are complaints related to his conviction; therefore, appellant was required to comply with the provisions of former Rule 25.2(b)(3). Because appellant only filed a general notice of appeal, we lack jurisdiction over these complaints.
In addition, because these complaints are related to appellant’s adjudication of guilt, we also lack jurisdiction over these complaints based on Code of Criminal Procedure article 42.12, section 5(b).
We have no jurisdiction to consider point of error one to the extent that it challenges the sufficiency of the evidence to support appellant’s conviction. For these same reasons, we also have no jurisdiction to consider point of error two.
Punishment
We have jurisdiction over appellant’s first point of error to the extent that it can be construed to complain of the amount of punishment appellant received. Appellant complains that the State’s evidence and argument related to his drug use impermissibly caused the trial court to give him the maximum sentence.
After sentence was imposed, appellant made no complaint about punishment. Therefore, appellant’s complaint is waived. Tex. R. App .P. 33.1(a)(1)(A).
We overrule appellant’s point of error one to the extent that it relates to the punishment he received.
Conclusion
We affirm the trial court’s judgment.
Laura Carter Higley
Justice
Panel consists of Chief Justice Radack and Justices Alcala and Higley.
Do not publish. Tex. R. App. P. 47.2(b).