DENNIS MICHAEL DILLA, Appellant v. THE STATE OF TEXAS, Appellee

AFFIRM; Opinion Filed April 27, 2010.
 
 
 
In The
Court of Appeals
Fifth District of Texas at Dallas
............................
No. 05-09-01076-CR
............................
DENNIS MICHAEL DILLA, Appellant
V.
THE STATE OF TEXAS, Appellee
.............................................................
On Appeal from the County Court at Law No. 2
Kaufman County, Texas
Trial Court Cause No. 25562CC2
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OPINION
Before Justices Richter, Lang-Miers, and Myers
Opinion By Justice Myers
        Dennis Michael Dilla appeals the trial court's order revoking his probation for felony DWI and sentencing him to ten years in prison. In four issues, he argues the conviction and sentence should be set aside as void because (1) the trial court failed to consider competency and (2) he should have been convicted and sentenced for a misdemeanor, and his plea of true to the revocation motion should also be set aside because (3) the trial court failed to consider competency and (4) the plea was involuntary. We dismiss appellant's first two issues for lack of jurisdiction and affirm the trial court's judgment.
 
 
Discussion
        Plea Hearing
        Appellant's first two issues complain of matters arising from his guilty plea hearing. Appellant argues the conviction and sentence should be set aside as void because (1) the trial court failed to consider competency and (2) appellant should have been convicted and sentenced for a misdemeanor instead of a felony.
        According to the record, on December 1, 2008, appellant received ten years probation in exchange for pleading guilty to third degree felony DWI. Appellant pleaded guilty pursuant to a plea agreement in which he waived his right to appeal. The trial court followed that agreement and assessed the agreed-upon sentence. The court also signed a certification of right to appeal finding appellant had no right to appeal. Appellant did not appeal the trial court's decision to place him on probation. On August 12, 2009, the trial court revoked appellant's probation and sentenced him to ten years in prison. Appellant then filed this appeal.
        The State argues we have no jurisdiction to consider appellant's first two issues. We agree. Appellant's first two issues should have been raised by a timely appeal after he was placed on community supervision, not after his community supervision was revoked. See Tex. Code Crim. Proc. Ann. art. 42.12, § 23(b) (Vernon Supp. 2009) (“The right of the defendant to appeal for a review of the conviction and punishment, as provided by law, shall be accorded the defendant at the time he is placed on community supervision. When he is notified that his community supervision is revoked for violation of the conditions of community supervision and he is called on to serve a sentence in jail or in the Texas Department of Criminal Justice, he may appeal the revocation.”); In re V.A., 140 S.W.3d 858, 860 (Tex. App.--Fort Worth 2004, no pet.); Anthony v. State, 962 S.W.2d 242, 246 (Tex. App.--Fort Worth 1998, no pet.). Because appellant's arguments were not raised in a timely appeal, we lack jurisdiction to address them now.
        Regarding appellant's argument that his first two issues are not barred because the judgment is void, the court of criminal appeals has concluded that a defendant who was placed on deferred adjudication may raise on appeal an error that would render the original judgment void, even if that appeal comes after the defendant's guilt is adjudicated. See Nix v. State, 65 S.W.3d 664, 668 (Tex. Crim. App. 2001). However, in that same opinion, the court noted there were limited situations in which a judgment was void:
 
A judgment of conviction for a crime is void when (1) the document purporting to be a charging instrument (i.e. indictment, information, or complaint) does not satisfy the constitutional requisites of a charging instrument, thus the trial court has no jurisdiction over the defendant, (2) the trial court lacks subject matter jurisdiction over the offense charged, such as when a misdemeanor involving official misconduct is tried in a county court at law, (3) the record reflects that there is no evidence to support the conviction, or (4) an indigent defendant is required to face criminal trial proceedings without appointed counsel, when such has not been waived, in violation of Gideon v. Wainwright [372 U.S. 335 (1963)]. While we hesitate to call this an exclusive list, it is very nearly so.
 
Id.
        Appellant does not claim any of the above exceptions apply to this case. We also note that
an involuntary plea claim, even if meritorious, does not render a conviction void. Id. at 669. Accordingly, we conclude the judgment is not void and dismiss appellant's first two issues for lack of jurisdiction. See Tex. Code Crim. Proc. Ann. art. 42.12, § 23(b); Davis v. State, 195 S.W.3d 708, 712 (Tex. Crim. App. 2006) (“we should not find a 'jurisdictional' exception to a prohibition against appeal when the statutory language does not appear to contain one.”) (citing Griffin, 145 S.W.3d at 646-47).
        Revocation Hearing
        In his third and fourth issues, appellant argues that the trial court erred in failing to sua sponte order a competency evaluation at the revocation hearing, and that appellant's plea of true to the revocation motion was involuntary because he was incompetent at the time of the revocation hearing.
        On the suggestion that the defendant is incompetent to stand trial, “the court shall determine by informal inquiry whether there is some evidence from any source that would support a finding that the defendant may be incompetent to stand trial.” Tex. Code Crim. Proc. Ann. art. 46B.004(c) (Vernon 2006). “If after an informal inquiry the court determines that evidence exists to support a finding of incompetency, the court shall order an examination under Subchapter B to determine whether the defendant is incompetent to stand trial in a criminal case.” Id. art. 46B.005(a).
        The court of criminal appeals has summarized the relevant authority concerning competence to stand trial as follows:
 
        Under Texas law, a defendant is incompetent to stand trial if he does not have “sufficient present ability to consult with [his] lawyer with a reasonable degree of rational understanding” or “a rational as well as factual understanding of the proceedings against” him. [Art. 46B.003.] A bona fide doubt is “a real doubt in the judge's mind as to the defendant's competency.” [Alcott v. State, 51 S.W.3d 596, 599, n.10 (Tex. Crim. App. 2001).] Evidence raising a bona fide doubt “need not be sufficient to support a finding of incompetence and is qualitatively different from such evidence.” [Id.] Evidence is sufficient to create a bona fide doubt if it shows “recent severe mental illness, at least moderate retardation, or truly bizarre acts by the defendant.” [McDaniel v. State, 98 S.W.3d 704, 710 (Tex. Crim. App. 2003).] If any evidence that suggests the defendant may be incompetent to stand trial comes to the trial court's attention, the trial court shall sua sponte “suggest that the defendant may be incompetent to stand trial” and then “determine by informal inquiry whether there is some evidence from any source that would support a finding that the defendant may be incompetent to stand trial.” [Art. 46B.004.]
 
Fuller v. State, 253 S.W.3d 220, 228 (Tex. Crim. App. 2008) (citations in footnotes in original). If the evidence raises a bona-fide doubt about a defendant's competence, the trial court must conduct a competency inquiry or hearing. See id. at 228. We review a trial court's decision not to conduct a competency inquiry or hearing for an abuse of discretion. See Moore v. State, 999 S.W.2d 385, 395-96 (Tex. Crim. App. 1999).         According to the record, appellant testified at the hearing on the motion to revoke that he was diagnosed as suffering from bipolar disorder at Terrell State Hospital in 1991, when he was thirty years old. He had also damaged a disk in his back in a 1985 work-related injury. Appellant testified that after he was diagnosed with bipolar disorder, he was prescribed Celexa, Zoloft, Lithium, and Trazadone, which he “did well on.” He had to stop taking these medications, however, when he started taking Hydrocodone for his back pain. A medical doctor that appellant consulted in 2006 recommended appellant stop taking bipolar medication and continue with only the Hydrocodone pain medication. Appellant noted that “the two medications don't mix together.” Appellant admitted that, on the day of the DWI offense that would be used to revoke his probation, he had taken four Hydrocodone pills and had two “Seven and Sevens” and two beers. Appellant also admitted to having marijuana in his car.   See Footnote 1  Appellant explained that without the bipolar medication he was prone to suffering “from intrusive thoughts and scattered and broken thinking,”   See Footnote 2  and that when he was younger he “had a lot of compulsive thinking or compulsive decision making.” Appellant's mother, Janet Speer, likewise testified that appellant had been diagnosed as “bipolar” at Terrell State Hospital in 1991, and that he was susceptible to severe mood swings.
        The record in this case does not demonstrate that appellant suffered from an impairment that prevented him from having the “sufficient present ability to consult with [his] lawyer with a reasonable degree of rational understanding” or “a rational as well as factual understanding of the proceedings against [him].” Tex. Code Crim. Proc. Ann. art. 46B.003(a)(1), (2). The record contains no evidence of any recent severe mental illness, bizarre acts, or moderate retardation. See Fuller, 253 S.W.3d at 228. Although appellant suggests his unmedicated bipolar disorder raised a bona fide doubt as to his competence, appellant testified that he stopped taking the bipolar medication after consulting with a physician. The trial court could have reasonably concluded appellant was capable of functioning competently without the medication. Accordingly, the trial court did not abuse its discretion by failing to order an examination and to conduct a competency hearing. We overrule appellant's third and fourth issues.
        We dismiss for lack of jurisdiction appellant's first and second issues, and affirm the trial court's judgment.
 
                                                          
                                                          LANA MYERS
                                                          JUSTICE
 
Do Not Publish
Tex. R. App. P. 47
091076F.U05
 
Footnote 1 The State's motion to revoke alleged that, on March 9, 2009, appellant committed the offenses of driving while intoxicated and possession of marijuana while on probation for the instant offense.
Footnote 2 Appellant acknowledged that “everybody” suffers from such problems “to some degree, but when you add pressure to me or stress on me, it's a whole lot worse for me. And it makes it hard for me to make decisions.”