Neely, Kelvin Nathaniel v. The State of Texas--Appeal from 248th District Court of Harris County

NUMBERS 13-99-250-CR & 13-99-251-CR 
  
 
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI

___________________________________________________________________

KELVIN NATHANIEL NEELY, Appellant,

v.

THE STATE OF TEXAS, Appellee.

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On appeal from the 248th District Court
of Harris County, Texas.

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O P I N I O N

Before Chief Justice Seerden and Justices Dorsey and Kennedy(1)

Opinion by Justice Kennedy

These appeals are combined into one brief by both appellant and the state. Appellant first pleaded guilty to aggravated assault. The trial court deferred adjudication of his guilt and placed him under community supervision for five years. Subsequently, he was indicted under a separate cause number for aggravated sexual assault of a child.(2)

The state moved to adjudicate his guilt in the original case based upon his commission of the sexual assault and also on the violation of four terms of his community supervision.

Appellant initially pleaded "not guilty" to the sexual assault and asked for a jury trial, however, he pleaded "true" to the remaining allegations in the motion to adjudicate. While the jury was deliberating his guilt for the sexual assault case, the trial court heard evidence on the motion to adjudicate, adjudicated appellant's guilt for the aggravated assault, and assessed his punishment at confinement for twenty years. Later, and while the jury was still deliberating, appellant changed his plea in the sexual assault case to nolo contendere. Based upon a plea bargain, he was found guilty by the court and his punishment was again assessed at confinement for twenty years to run concurrently with the punishment imposed in the aggravated assault case.

Appellant filed a notice of appeal in both cause numbers. The trial judge granted permission to appeal the original plea of guilty to aggravated assault. She denied permission to appeal the hearing on the motion to adjudicate the aggravated assault. She also denied permission to appeal the negotiated plea (nolo contendere) and sentence in the sexual assault case.

Appellant's brief does not break down his argument into precise issues. In his table of contents, following his preliminary statement, is the following presentation, stated verbatim:

I. STANDARD OF REVIEW

When may appellant's appeal a plea of not guilty or nolo contendere?

II. APPLICATION

How does the standard of review apply to appellant's three (3) pleas in the case at bar?

III. STEPHENSON AND INVOLUNTARY PLEAS

When can appellant's misunderstanding of his rights render a plea involuntary?

IV. ISSA - A "JURISDICTIONAL DEFECT"?

Can a failure to explicitly follow statutory procedure be an appealable "jurisdictional defect"?

Appellant had the trial court's permission to appeal his plea of guilty in the aggravated assault case. Having said that we are now at a loss to understand the basis for such an appeal. Appellant presents us with no record to show that the plea was not voluntary.(3)

The clerk's record in the aggravated assault case is before us and contains the usual "waiver of constitutional rights, agreement to stipulate, and judicial confession" all signed by appellant and his attorney and approved by the court. We have no reason to believe that appellant's plea was not voluntary or that he misunderstood his right to appeal.

The trial court denied permission to appeal the revocation of community supervision in the aggravated assault case. There is no appeal from this determination by the trial court by virtue of article 42.12 5(b) of the Code of Criminal Procedure. Tex. Code. Crim. Proc. Ann. art. 42.12 5 (b) (Vernon Supp. 2000).

Appellant appears to suggest that because his second hearing on the motion to revoke in the aggravated assault case was held simultaneously with the trial of his sexual assault case, and, because his plea to the motion to adjudicate was "true" to all the allegations therein except the commission of the new violation (sexual assault), his change of his plea in the sexual assault case(4)

to nolo contendere did not impact his refusal to plead "true" to the new violation(5)

in the motion to adjudicate the first case and, therefore, was not included in the plea bargain in the new violation plea.

We note from the record that appellant signed the "plea admonishments" in the new case(6)

and initialed each paragraph, including the paragraph concerning the necessity of permission to appeal. He was denied permission to appeal this matter and the court's assessment of punishment did not exceed the plea bargain punishment. He has no standing to raise this matter on appeal. There is no error.

Appellant also cites Flowers v. State, 935 S.W.2d 131 (Tex. Crim. App. 1996) to give permission to appeal the issue of the voluntariness of his plea. We agree with the Fort Worth Court in Villanueva v. State, 977 S.W.2d 693, 695 (Tex. App. Fort Worth 1998, no pet.) and the Waco Court in Elizondo v. State, 979 S.W.2d 823, 824 (Tex. App. Waco 1998, no pet.) that in promulgating rule 25.02(b)(3) of the rules of appellate procedure, the court of appeals effectively overruled Flowers.(7)

Davis v. State, 7 S.W.3d 695 (Tex. App.--Hou. [1st] 1999, no pet. hist.) holds differently.

Appellant argues that the reporter's record in the sexual assault case shows that his plea of "no contest" was involuntary because he did not understand his right to appeal. In support thereof he offers this portion of the record:

The court: Okay. You understand on a plea of no contest, I am still and will still find you guilty of the offense? Do you understand that?

The defendant: Do I still have a right to plea (sic), right?

The court: You can plead and I'll accept your plea of no contest.

The defendant: I meant to say appeal, right?

The court: Pardon?

The defendant: I may be able to appeal later?

The court: Well you have a very limit right to appeal on pleas. You can hear (sic)(8) the hearing on the motion to adjudicate where I give you twenty years on a plea of no contest. You have very limited circumstances on appeal. Do you understand?

The defendant: Yes, ma'am.

We do not agree that the interchange between appellant and the trial judge supports appellant's argument.

Finally, appellant argues that the trial court, following his no contest plea in the sexual assault case, did not specifically declare his guilt in the aggravated assault case and did not hold a separate punishment hearing therein before sentencing him to twenty years. He cites Issa v. State, 826 S.W.2d 159 (Tex. Crim. App. 1992) as authority. Issa holds that when a trial court finds that an accused has committed a violation as alleged by the state and adjudicates a previously deferred finding of guilt, the court must then conduct a second phase to determine punishment and it must allow the defendant an opportunity to present evidence. Id. at 161.

The only reporter's record we have before us is the brief record of appellant's plea to the court in the sexual assault case. The clerk's record in the adjudication of guilt for aggravated assault, states "and the court having heard the evidence submitted by both sides herein." This is followed by the adjudication of guilt. Nothing to contradict this recitation has been preserved and therefore, nothing is presented for our review. Tex. R. App. Proc. 33.1 (Vernon Supp. 2000). See also Hardeman v. State, 1 S.W.3d 689, 690 (Tex. Crim. App. 1999).

We find no error in the proceedings below and AFFIRM the judgment of the trial court.

NOAH KENNEDY

Justice

Do not publish.

Tex. R. App. P. 47.3.

Opinion delivered and filed

this the 31st day of August, 2000.

1. Retired Justice Noah Kennedy assigned to this Court by the Chief Justice ofthe Supreme Court of Texas pursuant to Tex. Gov't Code Ann. 74.003 (Vernon 1998).

2. To avoid confusion, we will refer to the first case chronologically as aggravated assault and the second as sexual assault. On appeal, the case first in time of commission has the higher number for some reason.

3. No court reporter's record was brought forward in the appeal of the aggravated assault case.

4. Cause No. 13-99-250-CR, aggravated sexual assault of a child.

5. Cause No. 13-99-250-CR, aggravated sexual assault of a child.

6. Cause No. 13-99-250-CR, aggravated sexual assault of a child.

7. When Flowers was published the governing rule was numbered 40(b)1 and included as authorization of the appeal voluntariness of the plea as well as those which remain under 25.2(b)3, ie, matters appealed with trial court's permission, matters ruled on before trial, and jurisdictional matters.

8. The record does not substitute another word for "hear."