In The
Court of Appeals
Ninth District of Texas at Beaumont
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NO. 09-00-343 CR
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JAMES RAY HAMPTON III, Appellant
V.
THE STATE OF TEXAS, Appellee
Jefferson County, Texas
Trial Court Cause No. 71376
This appeal follows the trial court's revocation of the deferred adjudication community supervision of appellant James Ray Hampton III and the adjudication of his guilt.
In July of 1997, Hampton pleaded guilty to the first degree felony offense of aggravated sexual assault. See Tex. Pen. Code Ann. § 22.021 (Vernon Supp. 2002). In August of 1997, the trial court deferred adjudication of guilt and placed Hampton on community supervision for ten years. In July of 2000, the trial court found that Hampton had violated two conditions of his probation, adjudicated his guilt, and sentenced him to fifty years in the Texas Department of Criminal Justice, Institutional Division.
Appointed appellate counsel filed a brief asserting that the record reflects no reversible error. The brief is in compliance with Smith v. Robbins, 528 U.S. 259, 120 S. Ct. 746, 145 L. Ed. 2d 756 (2000), Anders v. California, 386 U.S. 738, 87 S. Ct. 1396, 18 L. Ed. 493 (1967), and High v. State, 573 S.W.2d 807 (Tex. Crim. App. 1978). Hampton then filed a pro se brief, along with a supplement, in which he alleges five points of error, summarized as follows:
Issue One: Evidence of Hampton's violation of the community supervision order is legally and factually insufficient.
Issue Two: Trial counsel rendered ineffective assistance in preparation for and in representing appellant during the hearing on the motion to adjudicate guilt.
Issue Three: Hampton's due process rights were violated because he was deprived of a preliminary hearing and other rights under Fed. R. Crim. P. 32.1(a)(1).
Issue Four: The trial court's sentence of fifty years was excessive.
Issue Five: Appointed counsel on appeal was ineffective.
As explained hereafter, we have jurisdiction over only two of the five points of error.
The record shows that Hampton was granted deferred adjudication community supervision as part of an agreed plea bargain. An appellant who seeks to invoke the appellate court's jurisdiction and to appeal a conviction obtained as a result of such an agreed plea bargain must comply with the requirements of Tex. R. App. P. 25.2(b)(3). See White v. State, 61 S.W.3d 424, 428-429 (Tex. Crim. App. 2001). The rule provides that if the sentence does not exceed that recommended by the prosecutor and agreed to by the defendant, the notice of appeal must specify that the appeal is for a jurisdictional defect, specify that the substance of the appeal was raised by written motion and ruled on before trial, or state the trial court granted permission to appeal. Tex. R. App. P. 25.2(b)(3). The Court of Criminal Appeals has held, generally, that Rule 25.2(b)(3) is applicable in the plea bargain, guilty plea, deferred adjudication context. See Watson v. State, 924 S.W.2d 711, 714-715 (Tex. Crim. App. 1996), limited by, Vidaurri v. State, 49 S.W.3d 880, 884-885 (Tex. Crim. App. 2001). Hampton's Notice of Appeal is a general notice that does not meet the requirements of Rule 25.2(b)(3). Thus, we do not have jurisdiction to address those issues relating to pre-adjudication procedure (1) or adjudication of guilt. See Tex. R. App. P. 25.2(b)(3); see also Vidaurri, 49 S.W.3d at 885 (Under a general notice of appeal from a defendant who pleaded guilty pursuant to a plea bargain, appellate court could consider only matters "unrelated" to the conviction, such as the failure by the trial court to afford defendant the right to put on punishment evidence after adjudication of his guilt.). Hampton's points of error one, two, and three represent a challenge to either the pre-adjudication process or to the conviction itself, rather than to a matter unrelated to the conviction, such as the sentencing process. Under Rule 25.2(b)(3), we do not have jurisdiction to address them. Issues one, two, and three are overruled.
Even if Rule 25.2(b)(3) did not bar Hampton's "conviction-related" points of error, article 42.12, section 5(b), would do so. The section states that "[n]o appeal may be taken" from a trial court's determination to adjudicate guilt when a condition of community supervision has been violated. See Tex. Code Crim. Proc. Ann. art. 42.12, § 5(b) (Vernon Supp. 2002). The Court of Criminal Appeals has stated, "[W]e have tried to make clear that, given the plain meaning of Article 42.12, § 5(b), an appellant whose deferred adjudication probation has been revoked and who has been adjudicated guilty of the original charge, may not raise on appeal contentions of error in the adjudication of guilt process." Connolly v. State, 983 S.W.2d 738, 741 (Tex. Crim. App. 1999). Here, appellant's first three points of error all relate to the trial court's determination to adjudicate guilt.
In point of error four, Hampton argues the fifty year sentence imposed by the trial court is excessive. In light of Vidaurri, we find this point of error relates to the "process by which he was sentenced" and not to the conviction itself. Thus, Rule 25.2(b)(3) does not apply to this issue, and we have jurisdiction to consider it under a general notice of appeal. See Vidaurri, 49 S.W.3d at 885. However, Hampton has not preserved his claim of excessive sentence, because he did not raise the "excessive punishment" issue when the trial judge sentenced him to fifty years in prison and did not urge it in a motion for new trial following the adjudication of guilt and imposition of sentence. See Tex. R. App. P. 33.1(a); see also Keith v. State, 975 S.W.2d 433, 433-34 (Tex. App.--Beaumont 1998, no pet.). In any case, the fifty year punishment is within the punishment range allowed by law and no evidence of disproportionality of the punishment was presented to the trial court. See Tex. Pen. Code Ann. § 22.021(e) (Vernon Supp. 2002); Tex. Pen. Code Ann. § 12.32 (Vernon 1994); see Diaz-Galvan v. State, 942 S.W.2d 185, 186 (Tex. App.--Houston [1st Dist.] 1997, pet. denied) (no record presented showing the error). Hampton's point of error on excessiveness of punishment is overruled.
In point of error five, Hampton contends his appointed counsel on appeal was ineffective, because counsel filed an Anders brief that did not expand on the one issue --- trial counsel's ineffective assistance --- that appellate counsel stated might have merit. Counsel indicated in his Anders brief that the claim of ineffective assistance of trial counsel was not developed by the record below and therefore was not a claim to be pursued on direct appeal. We agree. As Justice Baird stated in his often-quoted concurrence in Jackson v. State, 877 S.W.2d 768, 772 (Tex. Crim. App. 1994), "[I]n order to effectively argue an issue of ineffective assistance of counsel, a record focused on the conduct of trial or appellate counsel should be developed. Such a record is generally best developed in the context of a hearing held in relation to an application for writ of habeas corpus."
Moreover, Hampton's point of error relates to appellate counsel's failure to argue a matter that we do not have jurisdiction to address: namely the effectiveness of trial counsel during the hearing on the determination of whether Hampton should be adjudicated guilty. We have no jurisdiction under Rule 25.2(b)(3) to consider issues relating to the adjudication of Hampton's guilt or his conviction, including ineffective assistance of counsel at that phase. See Kirtley v. State, 56 S.W.3d 48, 51-52 (Tex. Crim. App. 2001). (2) Without jurisdiction over that area of Hampton's appeal, there can be no error in appellate counsel's decision to not raise an issue on it.
Hampton also contends appellate counsel did not keep him informed regarding his case. Other than Hampton's unverified and unsworn comment in his brief, there is nothing in the record to establish that claim. We overrule point of error five.
We have no jurisdiction to consider Hampton's points of error one through three; although we have jurisdiction, under Vidaurri, to address his fourth point of error on excessive punishment, he has waived it. As to point of error five, there is no merit to it. We dismiss the appeal in part and affirm the conviction.
APPEAL DISMISSED IN PART AND CONVICTION AFFIRMED.
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DAVID B. GAULTNEY
Justice
Submitted on February 5, 2002
Opinion Delivered February 13, 2002
Do Not Publish
Before Walker, C.J., Burgess, and Gaultney, JJ.
1. Hampton claims his due process rights were violated because the procedures
required by Rule 32.1 of the Federal Rules of Criminal Procedure were not followed. We
simply note that the Federal Rules of Criminal Procedure do not govern the procedures of
Texas courts. Other due process issues raised by Hampton relate to the trial court's
determination to adjudicate guilt and the propriety of his conviction -- issues over which
we have no jurisdiction.
2.