Davis, Kenji Derrell v. The State of Texas--Appeal from 282nd District Court of Dallas County

COURT OF APPEALS

EIGHTH DISTRICT OF TEXAS

EL PASO, TEXAS

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KENJI DERRELL DAVIS, ) No. 08-01-00255-CR

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Appellant, ) Appeal from

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v. ) 282nd District Court

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THE STATE OF TEXAS, ) of Dallas County, Texas

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Appellee. ) (TC# F-9754155-KS)

O P I N I O N

Kenji Derrell Davis appeals from his conviction for arson following revocation of community supervision. The trial court reduced Appellant=s sentence to a fine of $499.98 and imprisonment for a term of five years. We dismiss the appeal for want of jurisdiction.

FACTUAL AND PROCEDURAL SUMMARY

Appellant waived his right to a jury trial and entered a negotiated plea of nolo contendere to arson. The trial court found Appellant guilty, and pursuant to the plea bargain, assessed his punishment at a fine of $500 and imprisonment for a term of ten years in the Texas Department of Criminal Justice, Institutional Division, under the Special Alternative Incarceration Program (SAIP or boot camp). See Tex.Code Crim.Proc.Ann. art. 42.12, ' 8 (Vernon Supp. 2002). The trial court imposed sentence on May 11, 1998, but retained jurisdiction pursuant to Article 42.12, section 8. Appellant did not file a notice of appeal or motion for new trial related to that judgment. Following Appellant=s completion of the boot camp program, the trial court suspended the sentence on August 26, 1998, and placed Appellant on community supervision for a term of five years. Appellant did not file a notice of appeal or motion for new trial related to this order.

Alleging several violations of the terms and conditions of community supervision, the State subsequently filed a motion to revoke. Appellant entered a negotiated plea of true to the allegations contained in the motion to revoke. Pursuant to the plea bargain, the trial court reduced Appellant=s sentence from ten years to five years, and reduced the fine from $500 to $499.98.

SUFFICIENCY OF THE EVIDENCE

TO SUPPORT THE ARSON CONVICTION

In his sole point of error, Appellant challenges the sufficiency of the evidence to support his plea of nolo contendere to the original charge of arson. The State responds that we lack jurisdiction to address this issue because Appellant=s notice of appeal does not satisfy the notice requirements of Tex.R.App.P. 25.2. While we do not necessarily disagree with the State=s argument, we find that we lack jurisdiction to address Appellant=s complaint for another reason.

Generally, a defendant placed on Aregular@ community supervision may raise issues relating to his conviction only in appeals taken when community supervision is first imposed. Manuel v. State, 994 S.W.2d 658, 661 (Tex.Crim.App. 1999); Whetstone v. State, 786 S.W.2d 361, 363 (Tex.Crim.App. 1990), overruled on other grounds by Gollihar v. State, 46 S.W.3d 243 (Tex.Crim.App. 2001). Consequently, issues related to the conviction, such as evidentiary sufficiency, may not be raised in appeals taken after community supervision is revoked. Manuel, 994 S.W.2d at 661. There are two recognized exceptions to this general rule, which are now referred to as: (1) the Avoid judgment@ exception; and (2) the Ahabeas corpus@ exception. See Nix v. State, 65 S.W.3d 664, 667 (Tex.Crim.App. 2001). Neither exception applies here.

In this case, the trial court imposed sentence on May 11, 1998, and through its retention of jurisdiction under Article 42.12, section 8, the court suspended the sentence and placed Appellant on regular probation on August 26, 1998. At the very latest, Appellant=s complaint regarding the sufficiency of the evidence to support his original conviction should have been raised in an appeal from the August 26, 1998 order suspending his sentence and placing him on community supervision.[1] He is not permitted to raise it in the context of this appeal. Appellant raises no points of error related to the order revoking community supervision. Because Appellant did not appeal his conviction until after his community supervision was revoked, his appeal is untimely. See Tex.R.App.P. 26.2(a)(1); Manuel, 994 S.W.2d at 662. Accordingly, we dismiss the appeal for want of jurisdiction.

August 1, 2002

ANN CRAWFORD McCLURE, Justice

Before Panel No. 1

Larsen, McClure, and Chew, JJ.

(Do Not Publish)

[1] An argument can be made that the appeal from the conviction actually should have been taken from the May 11, 1998 judgment imposing the original ten year sentence. It is unnecessary for us to resolve this issue as Appellant did not appeal from either the original judgment or the subsequent order suspending his sentence.