Charles Harold Fisher v. The State of Texas--Appeal from 100th District Court of Carson County (majority)Annotate this Case
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
SEPTEMBER 25, 2012
CHARLES HAROLD FISHER, APPELLANT
THE STATE OF TEXAS, APPELLEE
FROM THE 100TH DISTRICT COURT OF CARSON COUNTY;
NO. 4409; HONORABLE STUART MESSER, JUDGE
Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.
Appellant Charles Harold Fisher appeals from the trial court’s judgment
adjudicating him guilty of possession of marijuana, and sentencing him to twenty years
of imprisonment. He presents two issues on appeal. We will affirm.
Appellant was charged via indictment with possession of marijuana in an amount
of 2,000 pounds or less but more than 50 pounds. 1 In March 2010, appellant and his
wife plead guilty to that offense. The trial court deferred a finding of guilt and placed
appellant on deferred adjudication community supervision for a period of two years. In
Tex. Health & Safety Code Ann. § 481.121 (West 2011).
February 2011, the trial court held a hearing concerning the State’s allegations
appellant violated the terms of his supervision. It found appellant violated certain terms,
revoked his community supervision, adjudicated appellant guilty and imposed the
sentence noted. This appeal followed.
On appeal, appellant seeks reversal of his conviction through two issues. In one,
he argues his Sixth Amendment rights were violated because it was a conflict of interest
for one court-appointed attorney to represent both appellant and his wife at the 2010
plea hearing. In the second, he argues his 2010 guilty plea was involuntary because he
was ill at the time of the plea. We address the issues together.
A defendant who pleads guilty and is placed on deferred adjudication community
supervision may raise issues relating to the original plea proceeding only in an appeal
taken when the trial court first orders deferred adjudication. Manuel v. State, 994
S.W.2d 658, 661-62 (Tex.Crim.App. 1999); Tex. Code Crim. Proc. Ann. art. 42.12 §
23(b) (West 2011). Whether the original guilty plea was voluntary is an issue which
must be raised on appeal following the trial court's decision to defer adjudication and
place the defendant on community supervision. Manuel, 994 S.W.2d at 661-62; Clark v.
State, 997 S.W.2d 365, 368 (Tex.App.—Dallas 1999, no pet.). A defendant cannot wait
until he is adjudicated to bring this issue. Clark, 997 S.W.2d at 368. The same is true
regarding appellant’s conflict of interest issue. Manuel, 994 S.W.2d at 661; see Hanson
v. State, 11 S.W.3d 285, 287-88 (Tex.App.—Houston [14th Dist.] 1999, pet. ref’d) (in
appeal taken after revocation of deferred-adjudication community supervision and
adjudication of guilt, court lacked jurisdiction to consider issue that ineffective
assistance of counsel rendered plea of guilty at original plea hearing involuntary).
Here, appellant did not appeal from the imposition of deferred adjudication
In fact, the appellate record contains the trial court’s
certification pursuant to Rule of Appellate Procedure 25.2(d) certifying that appellant
waived his right to appeal from the deferral of adjudication. Tex. R. App. P. 25.2(d).
Appellant did not raise his appellate issues relating to his original plea hearing in
an appeal following that hearing, and we are without jurisdiction to consider them now.
Manuel, 994 S.W.2d at 661. Accordingly, we dismiss both issues and affirm the trial
James T. Campbell
Do not publish.