Richard Leroy Nichols v. The State of Texas--Appeal from 262nd District Court of Harris County

IN THE

TENTH COURT OF APPEALS

No. 10-97-128-CR

RICHARD LEROY NICHOLS,

Appellant

v.

THE STATE OF TEXAS,

Appellee

From the 262nd District Court

Harris County, Texas

Trial Court # 692631

O P I N I O N

Appellant was charged by indictment with the primary offense of theft of property under $1,500.00 committed on or about the 28th of April, 1995. The indictment alleged that prior to the commission of the primary offense, appellant had been convicted of felony theft on June 1, 1992 and felony theft on March 12, 1992. The indictment, therefore, charged a state jail felony punishable as stated in Tex. Pen. Code Ann. 31.03(e)(4)(D) (Vernon Supp. 1999).

The indictment further alleged that appellant had twice previously been convicted of two felonies, each occurring prior to the commission of the primary offense:

Arson on September 22, 1983 and

Aggravated Robbery on May 21, 1985.

Under Penal Code 12.35(c)(2), a person convicted of a state jail felony who has previously been convicted of any felony listed in article 42.12, 3g(a)(1), of the Code of Criminal Procedure shall be punished for a third degree felony. Tex. Pen. Code Ann. 12.35(c)(2) (Vernon 1994). Section 3g(a)(1) lists as one of several felonies, aggravated robbery. Tex. Code Crim. Proc. Ann. art. 42.12 3g(a)(1)(F) (Vernon Supp. 1999).

At the time of the commission of the primary offense, Penal Code 12.42(a) prescribed penalties for repeat felony offenders. The version of 12.42(a) in effect at that time states as follows:

(a) If it is shown on the trial of a state jail felony punishable under Section 12.35(c) or on the trial of a third-degree felony that the defendant has been once before convicted of a felony, on conviction he shall be punished for a second-degree felony.

Act of May 29, 1993, 73d Leg., R.S., ch. 900, 1.01, sec. 12.42(a), 1993 Tex. Gen. Laws 3586, 3603-04 (amended 1995) (current version at Tex. Pen. Code Ann. 12.42(a)(3) (Vernon Supp. 1999)).

On May 31, 1995, appellant entered a plea of guilty to the offense of theft (third theft) without a recommendation of the State as to punishment and further pled true to the enhancement provisions alleged in the indictment. The Court deferred an adjudication of guilt and placed appellant on community supervision for a period of ten years. There was no appeal taken from the order deferring adjudication and placing appellant on community supervision. See Tex. Code Crim. Proc. Ann. art. 44.01(j) (Vernon Supp. 1999).

Subsequently, on February 20, 1997, after a hearing on the State s motion to adjudicate guilt and revoke appellant s community supervision, the trial court found that appellant had violated the terms of his community supervision, adjudged him guilty of the offense alleged in the indictment, and sentenced him to a term of twenty years confinement in the Institutional Division of the Texas Department of Criminal Justice. Appellant at this time filed his notice of appeal.

Appellant proffers two points on appeal.

POINT ONE

This Court has jurisdiction to hear the appellant s appeal, even where the appellant originally entered a plea of guilty, because his guilty plea was without an agreed recommendation from the State.

POINT TWO

The cause should be remanded for a new trial on grounds of an involuntary plea because the trial court improperly admonished the appellant as to the incorrect range of punishment applicable to the offense for which he was convicted.

Article 44.01(j) of the Code of Criminal Procedure, enacted in 1987, established significant changes in the deferred adjudication law. // See Act of May 30, 1987, 70th Leg., R.S., ch. 382, 1, 1987 Tex. Gen. Laws 1884. The Court of Criminal Appeals determined in Feagin v. State, 967 S.W.2d 417, 419 n.2 (Tex. Crim. App. 1998), that a defendant has a right to appeal from deferred adjudication community supervision to the same extent as a defendant is permitted to appeal from regular community supervision. See also Watson v. State, 924 S.W.2d 711, 713-14 (Tex. Crim. App. 1996).

In the case of Munson v. State, 987 S.W.2d 905 (Tex. App. Waco 1999, pet. filed) (op. on reh g), we dismissed an appeal for want of jurisdiction where the appellant was contending that the trial court failed to properly admonish him of the consequences of his plea under article 26.13(a) of the Code of Criminal Procedure. Because the appellant did not appeal from his deferred adjudication order, but waited until he had been adjudicated guilty and his community supervision had been revoked, we held that his attempt to raise the issue raised by notice of appeal filed some seventeen months later was untimely. Id. at 906 (citing Tex. R. App. P. 26.2(a)(1); Alejandro v. State, 957 S.W.2d 143, 144 (Tex. App. Corpus Christi 1997, pet. ref d)). Here, as pointed out above, appellant did not appeal from the order of May 31, 1995 deferring adjudication of guilt, but elected to appeal some 1 years later from the judgment adjudicating guilt and revoking his community supervision.

In the recent case of Manuel v. State, the Court of Criminal Appeals in upholding the Fort Worth Court of Appeals dismissal of the appellant s appeal under similar circumstances stated:

In the case at bar, appellant could have appealed from the order placing him on deferred adjudication community supervision . . . . See Article 42.12, 5(a). Instead, he waited until after his community supervision had been revoked and his adjudication of guilt formally made. Thus, the court of appeals did not err in refusing to address the merits of his claim. //

Manuel v. State, No. 1477-98, slip op. at 6-7, 1999 WL 345630, at *3 (Tex. Crim. App. June 2, 1999).

Appellant s appeal is dismissed.

FRANK MALONEY

Justice //

Before Chief Justice Davis,

Justice Cummings, and

Justice Maloney

(Justice Cummings not participating)

Appeal dismissed

Opinion delivered and filed August 4, 1999

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