Norris Campbell v. The State of Texas--Appeal from 186th Judicial District Court of Bexar County

MEMORANDUM OPINION

No. 04-02-00278-CR

Norris CAMPBELL,

Appellant

v.

THE STATE OF TEXAS,

Appellee

From the 186th Judicial District Court, Bexar County, Texas

Trial Court No. 1997-CR-0459-A

Honorable Phil Chavarria, Jr., Judge Presiding

Opinion by: Sandee Bryan Marion, Justice

Sitting: Paul W. Green, Justice

Karen Angelini, Justice

Sandee Bryan Marion, Justice

Delivered and Filed: March 5, 2003

AFFIRMED

Defendant, Norris Campbell, pled guilty to aggravated robbery, pursuant to a plea agreement that sentencing would be capped at forty years' confinement. Defendant filed a notice of appeal, asserting a jurisdictional challenge. In his first issue on appeal, defendant asserts the original sentencing court did not have jurisdiction to sua sponte withdraw the agreement granting deferred adjudication. In his second issue on appeal, defendant asserts that because the withdrawal of the deferred adjudication agreement was a nullity, the final sentencing court did not have jurisdiction to sentence defendant to thirty-five years' confinement. Because all issues of law are settled, our opinion only advises the parties of the court's decision and the basic reasons for it. See Tex. R. App. 47.4. We affirm.

DISCUSSION

On June 15, 1998, at the original sentencing hearing before the Honorable Terry McDonald, defense counsel informed the trial court another charge was pending against defendant in Tyler, Texas. Nothing more was said about the Tyler charge, and the court placed defendant on deferred adjudication community supervision. On June 24, 1998, Judge McDonald stated, "There was no mention to me by either the State of Texas or the defense, or yourself, that you had a pending felony charge in Tyler, Texas." Defense counsel responded that, on June 15th, he was unaware the Tyler indictment had been returned. Judge McDonald withdrew the deferred adjudication, allowed the case to remain on the docket, and released defendant on bond. Judge McDonald told defendant he would give defendant an opportunity to dispose of the Tyler case before sentencing him in the instant case. However, Judge McDonald cautioned defendant to resolve the issue quickly because he (the judge) would not be in office after December 31, 1998. Judge McDonald indicated that if the Tyler case was resolved favorably, he would sentence defendant in the same manner as he was sentenced on June 15th. Defendant did not object. Two years later, defendant appeared for sentencing before the Honorable Phil Chavarria, who denied the application for deferred adjudication and sentenced defendant to thirty-five years' confinement.

On appeal, defendant analogizes this case to cases addressing the propriety of a trial court's sua sponte withdrawing a defendant's guilty plea or sua sponte ordering a new trial. Defendant contends Judge McDonald's action here is similar to a sua sponte ordering of a new trial on sentencing. We disagree with the analogy.

Once the original sentencing court placed defendant on deferred adjudication community supervision on June 15th, it retained continuing jurisdiction over defendant's case. See Strnad v. State, 39 S.W.3d 363, 366 (Tex. App.--Houston [1st Dist.] 2001), rev'd and remanded to court of appeals on other grounds, 55 S.W.3d 624 (Tex. Crim. App. 2001); McConnell v. State, 34 S.W.3d 27, 30-31 (Tex. App.--Tyler 2000, no pet.); Tex. Code Crim. P. Ann. art. 42.12 5, 10 (Vernon Supp. 2002). Therefore, Judge McDonald retained jurisdiction to withdraw the agreement on deferred adjudication, and Judge Chavarria had jurisdiction to ultimately sentence defendant.

We affirm the trial court's judgment.

Sandee Bryan Marion, Justice

DO NOT PUBLISH