In The
Court of Appeals
Seventh District of Texas at Amarillo
No. 07-13-00203-CR
TOMMY ISREAL CASTRO, APPELLANT
V.
THE STATE OF TEXAS, APPELLEE
On Appeal from the 251st District Court
Potter County, Texas
Trial Court No. 58,861-C, Honorable Ana Estevez, Presiding
September 18, 2014
MEMORANDUM OPINION
Before CAMPBELL and HANCOCK and PIRTLE, JJ.
At a May 2009 hearing, appellant plead guilty to two counts of aggravated
assault with a deadly weapon.1 Following the terms of a plea-bargain agreement, the
trial court placed appellant on deferred adjudication community supervision. The State
later moved to proceed with adjudication of guilt based on appellant’s alleged violation
of community supervision. The trial court granted the State’s motion, adjudicated
1
See TEX. PENAL CODE ANN. § 22.02(a)(2) (West 2012). This is a second degree
felony. TEX. PENAL CODE ANN. § 12.33 (West 2012).
appellant guilty, and sentenced him to ten years’ confinement in prison on each count.
The sentences run consecutive to a life sentence imposed for a Wilbarger County,
Texas conviction for murder.
The two issues appellant brings challenge matters arising in the 2009 plea
hearing. Finding we have no jurisdiction to consider these untimely complaints, we
dismiss the appeal for want of jurisdiction.
Background
At the May 2009 plea hearing, after the court accepted appellant’s plea and
imposed deferred adjudication community supervision, the reporter’s record contains
the following:
THE COURT: All right. Well, then, in a little while you will be
meeting with Probation to make sure that you
understand all your conditions and set your time for
your first time to meet with them. All right? And you
will be meeting with the lady in green.
All right, at this time I will ask the Court Reporter to
stop recording, and we will have the victim impact
statement.
(Thereupon, the reporter stopped the recording and the victim impact
statement was had.)
THE COURT: All right, Mr. Castro, you need to meet with Probation.
And, [defense counsel], you may be dismissed.
(Proceedings adjourned.)
The clerk’s record contains the trial court’s certification, signed by appellant and his trial
counsel, that the case was a plea-bargain case and appellant retained no right of
appeal.
2
In June 2013 the trial court heard the State’s motion to adjudicate guilt.
Appellant contested the hearing and immediately before presentation of the State’s
evidence orally moved for a new trial of the 2009 plea hearing. He argued that during
the victim impact statement he unsuccessfully attempted to withdraw his guilty pleas.
The court denied the motion for new trial and proceeded with a hearing of the State’s
motion. Appellant testified that during the victim impact statement at the 2009 plea
hearing he attempted to withdraw his guilty pleas but was told by the court and his
counsel not to speak. Nothing in the record of the 2009 plea hearing supports
appellant’s claim.
Analysis
Appellant raises two issues. First he asserts a denial of due process because
the trial court did not direct the court reporter to record the attempted withdrawal of his
guilty pleas during the 2009 plea hearing.2 Second, appellant contends his counsel at
the 2009 plea hearing rendered ineffective assistance by not requesting the court
reporter to record the withdrawal of his guilty pleas. We will discuss these issues jointly.
Within the allotted time following the 2009 hearing appellant did not file a formal
bill of exception.3 Nor did he file a notice of appeal.
2
Code of Criminal Procedure article 42.03 prohibits the court reporter from
recording victim-allocution statements. TEX. CODE CRIM. PROC. ANN. art. 42.03, § 1(b)
(West Supp. 2014); Johnson v. State, 286 S.W.3d 346, 348 (Tex. Crim. App. 2009). It
appears appellant’s assertion is the trial court was obligated to ensure that his plea
withdrawal issue was placed on the record.
3
See Donovan v. State, 68 S.W.3d 633, 636 (Tex. Crim. App. 2002) (a motion
for new trial is unavailable for a defendant receiving deferred adjudication community
supervision).
3
A defendant placed on deferred adjudication community supervision must timely
appeal issues relating to that proceeding when the deferred adjudication is imposed.
Manuel v. State, 994 S.W.2d 658, 661-62 (Tex. Crim. App. 1999) (a defendant placed
on deferred adjudication community supervision may raise issues relating to an original
plea proceeding only by an appeal taken when deferred adjudication community
supervision is first imposed); Daniels v. State, 30 S.W.3d 407, 408 (Tex. Crim. App.
2000) (en banc) (finding in subsequent appeal from adjudication of guilt and imposition
of sentence, defendant could not appeal any issues relating to his original deferred
adjudication proceeding); cf. Cibrian v. State, 09-08-00170-CR, 2009 Tex. App. LEXIS
1637 (Tex. App.—Beaumont Mar. 4, 2009, no pet.) (mem. op., not designated for
publication) (issues involving trial court’s refusal to allow withdrawal of guilty plea and
ineffective assistance of counsel, each arising from conduct of original plea hearing,
could not be raised in appeal from subsequent adjudication of guilt).
The two complaints appellant brings in this appeal should have been raised in an
appeal filed within thirty days of his placement under an order of deferred adjudication
community supervision. We therefore lack jurisdiction to consider their merits. See
York v. State, 2011 Tex. App. LEXIS 10127, at *2-3 (Tex. App.—Austin Dec. 23, 2011,
no pet.) (mem. op., not designated for publication) (so finding).
Accordingly, we dismiss the appeal for want of jurisdiction.
James T. Campbell
Justice
Do not publish.
4