Pham, Dang Quoc v. The State of Texas--Appeal from 351st District Court of Harris County

Dismissed and Opinion filed  June 20, 2002.

In The

Fourteenth Court of Appeals

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NOS. 14-01-00389-CR

14-01-00390-CR

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DANG QUOC PHAM, Appellant

V.

THE STATE OF TEXAS, Appellee

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On Appeal from the 351st District Court

Harris County, Texas

Trial Court Cause Nos. 865,951 and 94-00420

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M E M O R A N D U M O P I N I O N

Appellant, Dang Quoc Pham, pled guilty to the offense of burglary of a habitation on January 6, 1994, and was placed on ten years deferred adjudication. On January 26, 2001, the State filed a motion to adjudicate guilt on the grounds that appellant violated the terms of his probation. After a hearing on the motion, the trial court adjudicated guilt and sentenced appellant to twenty years confinement.

Appellant also pled guilty to the offense of burglary of a habitation on January 12, 2001. In accordance with the terms of that plea bargain agreement, the trial court sentenced appellant to ten years imprisonment.

Appellant appeals both judgments on the grounds that both guilty plea proceedings were unconstitutional. Specifically, in two issues, he contends that article 1.15 of the Texas Code of Criminal Procedure, which prescribes the procedure for guilty plea proceedings, violates his federal and state constitutional right to compulsory process. See Tex. Code Crim. Proc. Ann. art. 1.15 (Vernon Supp. 2002). Because appellant has waived his appeal from both judgments, we dismiss.

Deferred Adjudication 1994 Burglary Offense

In Manuel v. State, 994 S.W.2d 658 (Tex. Crim. App. 1999), the Court of Criminal Appeals held that a defendant placed on deferred adjudication community supervision may raise issues relating to the original plea proceeding only in appeals taken when deferred adjudication community supervision is first imposed. See also Hanson v. State, 11 S.W.3d 285, 287 88 (Tex. App. Houston [14th Dist.] 1999, pet. ref d). Appellant s complaint is an attack on the constitutionality of the original plea proceeding. However, he did not appeal when deferred adjudication was first imposed. Instead, he appealed after his deferred adjudication was revoked, and his guilt was formally adjudicated. Therefore, appellant waived these issues by his failure to appeal when he was first placed on deferred adjudication.

Recently, the Court of Criminal Appeals established a void judgment exception to Manuel. See Nix v. State, 65 S.W.3d 664, 667 68 (Tex. Crim. App. 2001). This exception provides that a defendant may raise error regarding the original plea proceeding after revocation of deferred adjudication if the error would render the original judgment void. See id. This exception usually implicates a jurisdictional defect. See id. The Nix court set forth the following nearly exclusive list of instances rendering a judgment void: (1) the charging instrument is constitutionally infirm, thus depriving the trial court of jurisdiction; (2) the trial court lacks subject matter jurisdiction over the offense charged; (3) the record reflects that there is no evidence to support the conviction; and (4) an indigent defendant has no appointed counsel and has not waived counsel. See id. at 668.

Appellant asserts that the constitutionality of article 1.15 is a jurisdictional issue. Although he characterizes his complaint as jurisdictional, there is no indication in the record, and he does not demonstrate, that his complaint falls within one of the above listed instances. Moreover, he presents no credible authority that his attack on the constitutionality of article 1.15 equates to an attack on the trial court s jurisdiction over his original plea proceeding. Jurisdiction is the power of the court over the subject matter of the case, conveyed by statute or constitutional provision, coupled with personal jurisdiction over the accused, which is invoked in felony prosecutions by the filing of an indictment. See Tex. Const. art. V, 12; Fairfield v. State, 610 S.W.2d 771, 779 (Tex. Crim. App. [Panel Op.] 1981). Constitutional challenges to a statute may affect the court s jurisdiction if the statute affects the power of the court over the subject matter of the case or the accused. See generally Webb v. State, 899 S.W.2d 814, 818 (Tex. App. Waco 1995, pet. ref d.) (citing Fairfield, 610 S.W.2d at 779). For example, challenges to (1) the specific statute that forms the basis of the charge; (2) the statute that defines potential punishment; (3) the statute that provides the authority for the tribunal to render judgment; or (4) the statute setting forth practices and procedures relating to the indictment, raise jurisdictional issues. See id. Here, appellant attempts to attack the constitutionality of article 1.15 even though it is not a statute which affects subject matter or personal jurisdiction. Contrary to appellant s argument, his issue does not address the very power of the State to bring him into court to answer the State s charges. See Okigbo v. State, 960 S.W.2d 923, 925 n.1 (Tex. App. Houston [1st Dist.] 1998, pet. ref d). Thus, his constitutional challenge to article 1.15 cannot be classified as a jurisdictional challenge that may be raised for the first time after revocation of deferred adjudication.

We have no jurisdiction to hear the merits of appellant s complaint regarding the guilty plea proceeding for the 1994 burglary offense. Accordingly, we dismiss this appeal.

2001 Burglary Offense

As part of appellant s plea bargain for the 2001 burglary offense, he signed a written waiver of his right to appeal, contingent on the court s acceptance of the plea bargain agreement. Appellant pled guilty, and the trial court followed the plea bargain agreement in assessing punishment. Despite having waived the right to appeal, appellant filed a notice of appeal. Appellant chose to enter into an agreement that included a waiver of the right to appeal. Appellant was aware of his right to appeal, knew with certainty the punishment he would receive, and knew that he could withdraw his plea if the trial court did not act in accordance with the plea agreement. Because appellant was fully aware of the consequences when he waived his right to appeal, it is not unfair to expect him to live with those consequences now. Alzarka v. State, 60 S.W.3d 203, 206 (Tex. App. Houston [14th Dist.] 2001, pet. granted) (quoting Mabry v. Johnson, 467 U.S. 504 (1984)). See also Blanco v. State, 18 S.W.3d 218, 219 20 (Tex. Crim. App. 2000); Buck v. State, 45 S.W.3d 275, 278 (Tex. App. Houston [1st Dist.] 2001, no pet.).

Appellant has waived his right to appeal the judgment for the 2001 burglary offense. Accordingly, we dismiss this appeal.

Having found that appellant cannot appeal either burglary conviction, we dismiss the appeal.[1]

/s/ Charles W. Seymore

Justice

Judgment rendered and Opinion filed June 20, 2002.

Panel consists of Justices Yates, Seymore, and Guzman.

Do Not Publish Tex. R. App. P. 47.3(b).

[1] Even if appellant could appeal one or both convictions, the merits of his issues were expressly rejected in Vanderburg v. State, 681 S.W.2d 713 (Tex. App. Houston [14th Dist.] 1984, pet. ref d) and Lyles v. State, 745 S.W.2d 567 (Tex. App. Houston [1st Dist.] 1988, pet. ref d).