Curtis Edward Waller v. The State of Texas--Appeal from 220th District Court of Hamilton County

IN THE

TENTH COURT OF APPEALS

No. 10-00-047-CR

CURTIS EDWARD WALLER,

Appellant

v.

THE STATE OF TEXAS,

Appellee

From the 220th District Court

Hamilton County, Texas

Trial Court # 6955

MEMORANDUM OPINION

Curtis Edward Waller pleaded guilty to the offense of indecency with a child. See Tex. Pen. Code Ann. 21.11(a)(1) (Vernon Supp. 2000). Pursuant to a plea recommendation, the court deferred an adjudication of Waller s guilt and placed him on unadjudicated community supervision for eight years. Eight months later, the State filed a motion to adjudicate. Waller responded with a plea of mental impairment and a request for a jury trial on the issue of his competence to comply with the terms and conditions of his community supervision. The court denied Waller s request and, after hearing, adjudicated his guilt and sentenced him to seven years imprisonment and a $500 fine.

Waller filed a general notice of appeal from the judgment adjudicating his guilt. The State responded with a motion to dismiss Waller s appeal for want of jurisdiction because of his failure to comply with Rule of Appellate Procedure 25.2(b)(3). See Tex. R. App. P. 25.2(b)(3); Tressler v. State, 986 S.W.2d 381, 382 (Tex. App. Waco 1999, no pet.); see also Manuel v. State, 994 S.W.2d 658, 662 (Tex. Crim. App. 1999) (applying former appellate rule 40(b)(1)). Waller then filed an amended notice of appeal in which he:

specifies that the appeal is for a jurisdictional defect and/or that the substance of the appeal was raised by written motion and ruled on before trial. Specifically, Curtis Waller will seek to bring to the attention of the Court of Appeals Defendant s Plea of Mental Impairment as a Defense and Defendant s Request for Jury Trial to Determine Defendant s Competency to Comply with the Terms and Conditions of Adult Community Supervision, which was overruled by the trial court prior to hearing State s Motion to Proceed with an Adjudication of Guilt.

By amending the notice of appeal, Waller asserts two reasons we have jurisdiction over his appeal. Both relate to his plea of mental impairment and request for a jury trial on the issue of his competence. First, Waller contends that the issue of his mental impairment/competence is a jurisdictional one. We disagree.

Jurisdictional issues are those which touch upon 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. Flowers v. State, 935 S.W.2d 131, 134 n.4 (Tex. Crim. App. 1996) (quoting Fairfield v. State, 610 S.W.2d 771, 779 (Tex. Crim. App. 1981)); accord Davis v. State, 956 S.W.2d 555, 558 (Tex. Crim. App. 1997). The issue of Waller s competence to understand and comply with the terms and conditions of community supervision does not implicate the trial court s subject-matter jurisdiction or the court s jurisdiction over Waller s person. Thus, it is not a jurisdictional issue, and we do not have jurisdiction over the appeal under Rule 25.2(b)(3)(A). See Tex. R. App. P. 25.2(b)(3)(A); Martinez v. State, 5 S.W.3d 722, 726 (Tex. App. San Antonio 1999, no pet.); Moss v. State, 938 S.W.2d 186, 189-90 (Tex. App. Austin 1997, pet. ref d).

Waller next asserts that we have jurisdiction because he seeks to appeal an issue raised by written motion and ruled on before trial. See Tex. R. App. P. 25.2(b)(3)(B). However, even if we were to assume that Rule 25.2(b)(3)(B) contemplates the appeal of issues raised in a motion filed and ruled upon before a revocation hearing, we lack jurisdiction over Waller s appeal for a different reason.

Article 42.12, section 5(b) of the Code of Criminal Procedure provides in pertinent part that a defendant alleged to have violated the terms of his unadjudicated community supervision:

is entitled to a hearing limited to the determination by the court of whether it proceeds with an adjudication of guilt on the original charge. No appeal may be taken from this determination.

Tex. Code Crim. Proc. Ann. art. 42.12, 5(b) (Vernon Supp. 2000). Thus, such a defendant may not raise on appeal contentions of error in the adjudication of guilt process. Connolly v. State, 983 S.W.2d 738, 741 (Tex. Crim. App. 1999).

The San Antonio Court has determined that an issue relating to the competence of the defendant is intrinsically part of the trial court s decision to adjudicate guilt and is therefore not appealable. Arista v. State, 2 S.W.3d 444, 444 (Tex. App. San Antonio 1999, no pet.) (citing Connolly, 983 S.W.2d at 741). We agree. Waller s appeal presents a non-jurisdictional issue relating to the adjudication of his guilt. The deferred adjudication statute prohibits such an appeal. Accordingly, we dismiss Waller s appeal for want of jurisdiction. //

PER CURIAM

Before Chief Justice Davis

Justice Vance and

Justice Gray

Appeal dismissed for want of jurisdiction

Opinion delivered and filed March 8, 2000

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