Anthony Ketassda Lemicy v. The State of Texas--Appeal from 115th District Court of Upshur County

In The
Court of Appeals
Sixth Appellate District of Texas at Texarkana
______________________________
No. 06-03-00188-CR
______________________________
ANTHONY KETASSDA LEMICY, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 115th Judicial District Court
Upshur County, Texas
Trial Court No.12,656
Before Morriss, C.J., Ross and Carter, JJ.
Memorandum Opinion by Chief Justice Morriss
MEMORANDUM OPINION

Anthony Ketassda Lemicy pled guilty to charges of state jail felony theft, in violation of Section 31.03 of the Texas Penal Code. See Tex. Pen. Code Ann. 31.03 (Vernon 2003). Pursuant to a written plea agreement, the trial court deferred adjudication and placed Lemicy on community supervision for two years. On September 30, 2002, the State applied to revoke community supervision and adjudicate guilt. In its application, the State alleged Lemicy violated several terms and conditions of community supervision, allegations to which Lemicy pled true. Lemicy was then sentenced to one year's confinement in the State Jail Division of the Texas Department of Criminal Justice.

Lemicy now attempts to appeal the revocation of his community supervision and his ultimate conviction of state jail felony theft, asserting ineffective assistance of counsel, excessive or illegal punishment, and a void or voidable judgment. Because this appeal involves a plea agreement and because Lemicy appeals the revocation of his community supervision imposed pursuant to that agreement, we lack jurisdiction over this appeal.

Effective January 1, 2003, the Texas Rules of Appellate Procedure were amended. Lemicy's notice of appeal invoking appellate jurisdiction was filed after the effective date of the amended rules. The amended rules therefore apply to this appeal. Rule 25.2(a) was amended to read, in pertinent part:

(2) . . . . A defendant in a criminal case has the right of appeal under Code of Criminal Procedure article 44.02 and these rules. The trial court shall enter a certification of the defendant's right of appeal in every case in which it enters a judgment of guilt or other appealable order. In a plea bargain case-that is, a case in which a defendant's plea is guilty or nolo contendere and the punishment did not exceed the punishment recommended by the prosecutor and agreed to by the defendant-a defendant may appeal only:

(A) those matters that were raised by written motion filed and ruled on before trial, or

(B) after getting the trial court's permission to appeal.

Tex. R. App. P. 25.2(a). The trial court filed a certification of Lemicy's right of appeal in accordance with Rule 25.2(a)(2). It states Lemicy is a defendant in a plea agreement case and "has NO right of appeal."

We have jurisdiction to determine whether we have jurisdiction. Olivo v. State, 918 S.W.2d 519, 523 (Tex. Crim. App. 1996). Lemicy pled guilty, and when adjudged guilty of that crime, he entered into a plea agreement as to punishment that the trial court did not exceed at sentencing. Under amended Rule 25.2(a)(2), Lemicy was entitled to appeal only "those matters that were raised by written motion filed and ruled on before trial," or "after getting the trial court's permission to appeal." The trial court certified that neither of these circumstances apply by stating that there is no right of appeal. See Comb v. State, 101 S.W.3d 724, 726 (Tex. App.-Houston [1st Dist.] 2003, no pet.). (1)

The fact that the case involves revocation of community supervision also limits Lemicy's right to appeal. A defendant placed on deferred adjudication community supervision may raise issues relating to the original plea proceeding, such as evidentiary sufficiency, only in appeals taken when deferred adjudication community supervision is first imposed. Manuel v. State, 994 S.W.2d 658 (Tex. Crim. App. 1999). Accordingly, Lemicy cannot appeal from any action taken at the original proceeding.

Further, in the context of a deferred adjudication, a defendant may not appeal the trial court's determination to adjudicate an original offense on violation of community supervision. This denies a court of appeals any jurisdiction to entertain or consider an appeal from the adjudication hearing on any grounds. Tex. Code Crim. Proc. Ann. art. 42.12, 5(b) (Vernon Supp. 2003); Connolly v. State, 983 S.W.2d 738, 741 (Tex. Crim. App. 1999); Tillman v. State, 919 S.W.2d 836, 838 (Tex. App.-Fort Worth 1996, pet. ref'd). Any remedy for an alleged violation of due process as to the standard of proof involved in a decision to proceed to adjudication must lie through a post-conviction writ of habeas corpus. The prohibition against a direct appeal is total. Andrade v. State,963 S.W.2d 832, 833 (Tex. App.-Fort Worth 1998, no pet.); Kendall v. State, 929 S.W.2d 509 (Tex. App.-Fort Worth 1996, pet. ref'd).

 

We lack jurisdiction over this appeal. The appeal is dismissed.

 

Josh R. Morriss, III

Chief Justice

 

Date Submitted: September 18, 2003

Date Decided: September 23, 2003

 

Do Not Publish

1. A plea agreement by its nature incorporates a voluntary and understanding plea of guilty, and thus its process can only be triggered when the plea agreement and guilty plea are voluntarily and understandably made; however, in Cooper, the Texas Court of Criminal Appeals determined that an involuntary plea may be raised by a motion for new trial and habeas corpus, but not on appeal. Cooper v. State, 45 S.W.3d 77 (Tex. Crim. App. 2001).