Cody Dewayne Allen v. The State of Texas--Appeal from 35th District Court of Brown County

11th Court of Appeals

Eastland, Texas

Opinion

Cody Dewayne Allen

Appellant

Vs. No. 11-01-00256-CR -- Appeal from Brown County

State of Texas

Appellee

On Remand

After the juvenile court waived jurisdiction and transferred this case to district court, Cody Dewayne Allen pleaded guilty to the offense of burglary of a habitation. Pursuant to the plea bargain agreement, the district court deferred the adjudication of appellant=s guilt and placed him on community supervision. Based on a subsequent motion to adjudicate filed by the State, to which appellant pleaded not true, the district court adjudicated appellant=s guilt and assessed his punishment at confinement for 15 years. We affirm.

In our original opinion, we dismissed appellant=s appeal for failing to comply with former TEX.R.APP.P. 25.2(b)(3). Pursuant to the directive of the Court of Criminal Appeals, we have reconsidered our previous holding in this case in light of Bayless v. State, 91 S.W.3d 801 (Tex.Cr.App.2002). Based upon the holding in Bayless, we hold that appellant=s amended notice of appeal cured the defects found in his original, general notice of appeal. The amended notice of appeal was filed on March 13, 2002, after the time for filing a notice of appeal but before appellant=s brief was filed, and it asserted that the appeal was for a jurisdictional defect. See former TEX.R.APP.P. 25.2(b)(3) & (d).

Appellant has briefed four points of error challenging the jurisdiction of the district court and the juvenile court. Appellant=s jurisdictional challenges are based upon his assertion that he was not properly served a summons to appear in juvenile court. We hold that appellant waived these contentions. Consequently, we do not decide whether such contentions may be challenged in an appeal from a judgment adjudicating guilt or whether they must be raised in an appeal from the order deferring adjudication of guilt. See generally Woods v. State, 68 S.W.3d 667, 668 (Tex.Cr.App.2002).

The record shows that appellant first raised his contentions regarding the jurisdiction of the district court and the juvenile court by filing a motion for new trial after he was adjudicated guilty. Appellant=s challenge was not timely. TEX. CODE CRIM. PRO. ANN. art. 4.18 (Vernon Supp. 2003); Rushing v. State, 85 S.W.3d 283 (Tex.Cr.App.2002). Article 4.18 provides in part:

(a) A claim that a district court or criminal district court does not have jurisdiction over a person because jurisdiction is exclusively in the juvenile court and that the juvenile court could not waive jurisdiction under Section 8.07(a), Penal Code, or did not waive jurisdiction under Section 8.07(b), Penal Code, must be made by written motion in bar of prosecution filed with the court in which criminal charges against the person are filed.

(b) The motion must be filed and presented to the presiding judge of the court:

(1) if the defendant enters a plea of guilty or no contest, before the plea;

(2) if the defendant=s guilt or punishment is tried or determined by a jury, before selection of the jury begins; or

(3) if the defendant=s guilt is tried by the court, before the first witness is sworn.

Article 4.18(d) specifically provides that, if the defendant does not timely file such a motion, the defendant Amay not contest the jurisdiction of the court on the ground that the juvenile court has exclusive jurisdiction.@ Because appellant=s motion was not timely filed, his claims were not preserved for review. See Rushing v. State, supra. Appellant=s points of error are overruled.

The judgment of the trial court is affirmed.

October 16, 2003 JIM R. WRIGHT

Do not publish. See TEX.R.APP.P. 47.2(b). JUSTICE

Panel consists of: Arnot, C.J., and

Wright, J., and McCall, J.