David Gordon Munson v. State

David Gordon Munson

IN THE

TENTH COURT OF APPEALS

No. 10-98-027-CR

     DAVID GORDON MUNSON,

                                                                                              Appellant

     v.

     THE STATE OF TEXAS,

                                                                                              Appellee

From the County Court at Law No. 1

Brazos County, Texas

Trial Court # 3691-95

                                                                                                                

OPINION ON REHEARING

                                                                                                                

      We dismissed this appeal for want of jurisdiction on December 16, 1998. Appellant David Gordon Munson was challenging the validity of his misdemeanor nolo contendere plea on the basis that the trial court failed to properly admonish him of the consequences of his plea under article 26.13(a). See Tex. Code Crim. Proc. Ann. art. 26.13(a) (Vernon 1989). Munson’s notice of appeal recites that the trial court granted him permission to appeal. See Tex. R. App. P. 25.2(b)(3)(C). However, the record did not affirmatively reflect that the court had in fact granted permission to appeal. Accordingly, we dismissed the appeal for want of jurisdiction. See Rogers v. State, 956 S.W.2d 624, 626 (Tex. App.—Texarkana 1997, pet. ref’d); Hutchins v. State, 887 S.W.2d 207, 210 (Tex. App.—Austin 1994, pet. ref’d).

      Munson has filed a motion for rehearing asking this Court to reinstate his appeal on the basis of a recently-drawn order of the trial court stating, “IT IS ORDERED that David Gordon Munson is granted permission to appeal, and that the Court intended to allow an appeal on December 16, 1997.” Assuming without deciding that a trial court can supplement the record in this manner after the expiration of its plenary power, we nevertheless conclude that we do not have jurisdiction over this appeal for a different reason.

      Munson pleaded nolo contendere to criminal trespass. See Tex. Penal Code Ann. § 30.05(a)(1) (Vernon 1994). Pursuant to the State’s plea recommendation, the court deferred an adjudication of Munson’s guilt; placed him on community supervision for two years; and required him to pay a $2,000 fine while on community supervision. The court rendered its order deferring adjudication on August 6, 1996. The State subsequently filed a motion to adjudicate Munson’s guilt. After a contested hearing, the court adjudicated Munson’s guilt and assessed his punishment at 180 days’ confinement in the county jail. The court imposed sentence on December 16, 1997. Munson filed his notice of appeal on January 15, 1998.

      Munson claims in two points that the court erred in accepting his original plea of nolo contendere without giving him two of the admonishments required by article 26.13(a). See Tex. Code Crim. Proc. Ann. art. 26.13(a). However, Munson failed to appeal from the court’s August 1996 order accepting his plea and deferring an adjudication of his guilt.

      Article 44.01(j) allows a defendant “to appeal from a deferred adjudication [community supervision] the same as [he] can appeal from a regular [community supervision].” Dillehey v. State, 815 S.W.2d 623, 625 (Tex. Crim. App. 1991); Alejandro v. State, 957 S.W.2d 143, 144 (Tex. App.—Corpus Christi 1997, pet. ref’d). Munson raises issues in this appeal which he should have asserted in an appeal from the court’s order placing him on unadjudicated community supervision. He chose not to. His attempt to raise these issues by a notice of appeal filed seventeen months later is untimely. See Tex. R. App. P. 26.2(a)(1); Alejandro, 957 S.W.2d at 144.

      Assuming without deciding the trial court in fact granted Munson permission to appeal, Munson’s appeal is nevertheless untimely because it was filed seventeen months after entry of the order he seeks to appeal. Accordingly, we deny Munson’s motion for rehearing.

                                                                               PER CURIAM

 

Before Chief Justice Davis,

      Justice Cummings (not participating),

      and Justice Vance

Motion denied

Opinion delivered and filed February 10, 1999

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n 189.0pt 3.0in 243.0pt 297.0pt 4.5in 5.25in 405.0pt 6.0in 459.0pt'> We must, “after a full examination of all the proceedings, . . . decide whether the case is wholly frivolous.”  Anders at 744; accord Stafford v. State, 813 S.W.2d 503, 509-11 (Tex. Crim. App. 1991); Coronado v. State, 996 S.W.2d 283, 285 (Tex. App.—Waco 1999, order) (per curiam), disp. on merits, 25 S.W.3d 806 (Tex. App.—Waco 2000, pet. ref’d).  An appeal is “wholly frivolous” or “without merit” when it “lacks any basis in law or fact.”  McCoy v. Court of Appeals, 486 U.S. 429, 439 n.10 (1988).  Arguments are frivolous when they “cannot conceivably persuade the court.”  Id. at 436  An appeal is not wholly frivolous when it is based on “arguable grounds.”  Stafford at 511.

       We determine that the appeal is wholly frivolous.  Accordingly, we affirm.  Counsel must advise Appellant of our decision and of his right to file a petition for discretionary review.  See Sowels v. State, 45 S.W.3d 690, 694 (Tex. App.—Waco 2001, no pet.).

TOM GRAY

Chief Justice

Before Chief Justice Gray,

        Justice Vance, and

        Justice Reyna

Affirmed

Opinion delivered and filed January 5, 2005

Do not publish

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