Opinion of July 3, 2007, Withdrawn; Dismissed and Substitute Memorandum Opinion filed July 12, 2007.
In The
Fourteenth Court of Appeals
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NO. 14-02-00555-CR
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RODNEY JACK, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 174th District Court
Harris County, Texas
Trial Court Cause No. 877843
S U B S T I T U T E M E M O R A N D U M O P I N I O N[1]
Challenging his conviction for indecency with a child, appellant Rodney Jack contends the trial court erred in failing to admonish him that he had a limited time to appeal following the trial court=s order deferring adjudication of his guilt. We dismiss for lack of jurisdiction.
Factual and Procedural Background
After being charged with indecency with a child, appellant pleaded Aguilty@ without an agreed recommendation. The trial court found sufficient evidence to substantiate appellant=s guilt, but deferred adjudication of his guilt, placing appellant on deferred community supervision for eight years. Approximately two months later, the State filed a motion to adjudicate appellant=s guilt, alleging that appellant had violated a number of conditions of his community supervision. Appellant, under a plea-bargain agreement, stipulated to the violations alleged in the State=s motion to adjudicate. The trial court found appellant guilty, and in accordance with the terms of the plea-bargain agreement, sentenced appellant to four years= confinement.[2] Nonetheless, on May 30, 2002, appellant filed a pro se notice of appeal from his plea of guilty. On September 26, 2002, at this court=s request, the trial court held an indigency hearing. At that hearing, the trial court appointed appellate counsel. On November 22, 2006, appellant=s appointed counsel filed his appellate brief. The State filed its reply brief on December 29, 2006, and this case was submitted without oral argument on March 20, 2007.
Lack of Jurisdiction
In his sole issue, appellant contends the trial court erred in failing to admonish him about the appellate timetable applicable to his deferred adjudication. More specifically, he contends that the trial court should have informed him that, in the event he received deferred adjudication probation, he would have to appeal all matters relating to his original plea within thirty days of the judgment entering deferred adjudication on that plea. Appellant seeks to have the judgment adjudicating his guilt reversed.
This court=s jurisdiction on an appeal from an adjudication of guilt is extremely limited. No appeal maybe taken from a trial court=s determination of whether to proceed with an adjudication of guilt on the original charge. See Tex. Code Crim. Proc. Ann. Art. 42.12 '5(b) (Vernon 2006). Article 42.12 section 5(a) provides that A[t]he judge shall inform the defendant orally or in writing of the possible consequences. . .of a violation of [deferred adjudication probation]. If the information is provided orally, the judge must record and maintain the judge=s statement to the defendant.@ Id. (clarifying that failure by the trial judge to inform a defendant of the consequences of a violation of the terms of deferred adjudication probation is not grounds for reversal unless the defendant demonstrates harm). Section 5(b) provides that if a defendant violates the terms of deferred adjudication probation, he is entitled to a hearing for the limited purpose of determining whether to adjudicate guilt, but the defendant may not appeal this decision by the trial court to adjudicate guilt. Id. at ' 5(b).
This court=s jurisdiction to consider error from the original proceeding is also very limited. Error in the original plea proceeding must be appealed when the conditions of deferred adjudication were originally imposed. See Vidaurri v. State, 49 S.W.3d 880, 884 (Tex. Crim. App. 2001); Manuel v. State, 994 S.W.2d 658, 661 (Tex. Crim. App. 1999). Appellant may not appeal matters relating to the original plea proceeding after his probation has been revoked and his adjudication of guilt formally made. Manuel, 994 S.W.2d at 662.
Appellant=s complaint on appeal relates to an admonishment that he alleges the trial court should have given him when he pleaded guilty, and was placed on deferred adjudication. Because appellant did not timely appeal from the trial court=s judgment deferring his guilt, this court does not have jurisdiction to review the adequacy of the admonishments. See Id.; see also Clark v. State, 997 S.W.2d 365, 368 (Tex. App.CDallas 1999, no pet.) (concluding that defendant must raise issues relating to admonishments provided at original plea at the time he is placed on deferred adjudication community supervision). Accordingly, we dismiss this appeal for lack of jurisdiction.
/s/ Kem Thompson Frost
Justice
Dismissed and Substitute Memorandum Opinion filed July 12, 2007.
Panel consists of Justices Frost, Seymore, and Guzman.
Do Not Publish C Tex. R. App. P. 47.2(b).
[1] We withdraw our opinion issued on July 3, 2007, and issue this opinion in its place.
[2] We note that appellant did not sign a waiver of his right to appeal when the court adjudicated his guilt. Thus, we do not find that appellant waived his right to appeal in this case. In addition, although the record does not contain a trial court=s certification of appellant=s right to appeal, no certification was necessary at the time of this judgment. The certification requirement in Texas Rule of Appellate Procedure 25.2(d) did not become effective until January 2003. The judgment adjudicating appellant=s guilt in this case was signed in May 2002.