James Ray Davis, Jr. v. The State of Texas--Appeal from 33rd District Court of Burnet County

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-96-00638-CR
James Ray Davis, Jr., Appellant
v.
The State of Texas, Appellee
FROM THE DISTRICT COURT OF BURNET COUNTY, 33RD JUDICIAL DISTRICT
NO. 7765, HONORABLE CLAYTON E. EVANS, JUDGE PRESIDING

James Ray Davis appeals from a judgment convicting him of the misdemeanor offense of false imprisonment and ordering him to pay a $500 fine and serve a jail term of 120 days. See Tex. Penal Code Ann. 20.02 (West 1994). We will affirm the judgment.

 
THE CONTROVERSY

After his indictment for a felony and pursuant to a plea bargain, Davis pled guilty to the misdemeanor offense of false imprisonment and the trial court deferred adjudication of the offense conditioned upon Davis's good behavior during a six-month period of community supervision. During that period, the State moved that the court proceed to an adjudication on the allegations that Davis had violated the conditions of community supervision by, inter alia, failing to report for a meeting with a probation officer and by threatening two people with a firearm. See Tex. Code Crim. Proc. Ann. art. 42.12, 5(a), (b) (West Supp. 1997).

At a hearing on the State's motion, Davis pleaded true to the alleged violations. Consistent with his plea of guilty, the trial court found Davis guilty of false imprisonment and sentenced him as noted above. A dispute then arose over when Davis had received notice of the hearing and whether he was entitled to credit for jail time served on unrelated charges of aggravated assault in addition to jail time served previously in connection with the charge of false imprisonment. See Tex. Code Crim. Proc. Ann. art. 42.03, 2(a) (West Supp. 1997). (1) Davis asked to withdraw his plea of true if he was not entitled to the additional jail-time credit. The trial judge did not rule on the request but rendered an adjudication order presented the day of the hearing in which the judge found Davis had violated the terms of community supervision and proceeded to find him guilty of the offense of false imprisonment, for which he was sentenced as indicated above and given credit for 42 days of jail time previously served.

Davis moved for a new trial on the ground that the trial judge had erroneously overruled Davis's request to withdraw his plea of true to the allegations that he had violated the conditions of community supervision. The motion was overruled by operation of law.

Davis brings to this court two points of error: (1) the trial judge erred in not allowing Davis to withdraw his plea of true because the plea was made involuntarily; and (2) the trial judge erred in not setting for a hearing Davis's motion for new trial.

 
DISCUSSION AND HOLDINGS

Davis's two points of error pertain solely to events that occurred at the hearing on the State's motion that the trial court proceed to an adjudication of guilt on the charge of false imprisonment to which Davis had pleaded guilty. The hearing was governed by section 5(b) of article 42.12 of the Code of Criminal Procedure. (2) The statute limits the scope of such hearings and prohibits appeals from the trial court's determination to proceed to an adjudication of guilt. See Phynes v. State, 828 S.W.2d 1, 2 (Tex. Crim. App. 1992) (even if right to counsel denied at hearing governed by article 42.12, 5(b), direct appeal not available for redress).

Davis is entitled to appeal, of course, from the judgment convicting him of the offense of false imprisonment. See Tex. Code Crim. Proc. Ann. art. 42.12, 5(b) (West Supp. 1997). (3)

Under the rule in effect at the time, however, in cases like the present, the scope of appeal for nonjurisdictional defects or errors was limited to those identified in the defendant's notice of appeal stating "that the trial court granted permission to appeal or . . . [specifying] that those matters were raised by written motion and ruled on before trial." Tex. R. App. P. 40(b)(1) (1986, repealed September 1, 1997), 119 Tex. Reg. 1939 (Tex. Crim. App. 1985). Davis's notice of appeal was general, stating only that "defendant . . . files this Notice of Appeal of said conviction." The errors urged are not jurisdictional. We therefore lack subject-matter jurisdiction to decide them. See Davis v. State, 870 S.W.2d 43, 46-47 (Tex. Crim. App. 1994). Under the previous rule, it was held that an appellant may, by general notice of appeal, challenge the voluntary nature of his plea in addition to raising jurisdictional points of error. See Flowers v. State, 935 S.W.2d 131, 134 (Tex. Crim. App. 1996). In the present case, Davis's first point of error pertains to the involuntariness of his plea of true to allegations that he violated the conditions of community supervision; the point of error does not pertain to the involuntariness of his plea of guilty to the offense of false imprisonment of which he was convicted.

Because nothing is presented for our review, we affirm the trial-court judgment. (4)

 

John Powers, Justice

Before Justices Powers, Aboussie and B. A. Smith

Affirmed

Filed: October 9, 1997

Do Not Publish

1. Section 2(a) of article 42.03 provides as follows:

 

In all criminal cases, the judge of the court in which the defendant was convicted shall give the defendant credit on his sentence for the time that the defendant has spent in jail in said cause, other than confinement served as a condition of community supervision, from the time of his arrest and confinement until his sentence by the trial court.

 

Tex. Code Crim. Proc. Ann. Art. 42.03, 2(a) (West Supp. 1997).

2. Section 5(b) of article 42.12 provides as follows:

 

On violation of a condition of community supervision . . . the defendant may be arrested and detained . . . . The defendant 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) (West Supp. 1997).

3. Section 5(b) of article 42.12 provides as follows:

 

After an adjudication of guilt, all proceedings, including . . . defendant's appeal continue as if the adjudication of guilt had not been deferred.

 

Tex. Code Crim. Proc. Ann. art. 42.12, 5(b) (West Supp. 1997).

4. In Phynes v. State, 828 S.W.2d 1 (Tex. Crim. App. 1992), which was announced on February 26, 1992, the court stated that when a defendant attempts to appeal from a determination to proceed to adjudication, the proper disposition is to dismiss the appeal. However, on March 11, 1992, in Olowosuko v. State, 826 S.W.2d 940 (Tex. Crim. App. 1992), the court stated that the proper disposition of such a case is to affirm the judgment. Because Olowosuko appears to be the last word on the subject, and because we believe it to be the sounder rule for the reason announced in the opinion, we affirm the judgment of conviction rather than dismiss the appeal.

SPAN>

Davis is entitled to appeal, of course, from the judgment convicting him of the offense of false imprisonment. See Tex. Code Crim. Proc. Ann. art. 42.12, 5(b) (West Supp. 1997). (3)

Under the rule in effect at the time, however, in cases like the present, the scope of appeal for nonjurisdictional defects or errors was limited to those identified in the defendant's notice of appeal stating "that the trial court granted permission to appeal or . . . [specifying] that those matters were raised by written motion and ruled on before trial." Tex. R. App. P. 40(b)(1) (1986, repealed September 1, 1997), 119 Tex. Reg. 1939 (Tex. Crim. App. 1985). Davis's notice of appeal was general, stating only that "defendant . . . files this Notice of Appeal of said conviction." The errors urged are not jurisdictional. We therefore lack subject-matter jurisdiction to decide them. See Davis v. State, 870 S.W.2d 43, 46-47 (Tex. Crim. App. 1994). Under the previous rule, it was held that an appellant may, by general notice of appeal, challenge the voluntary nature of his plea in addition to raising jurisdictional points of error. See Flowers v. State, 935 S.W.2d 131, 134 (Tex. Crim. App. 1996). In the present case, Davis's first point of error pertains to the involuntariness of his plea of true to allegations that he violated the conditions of community supervision; the point of error does not pertain to the involuntariness of his plea of guilty to the offense of false imprisonment of which he was convicted.

Because nothing is presented for our review, we affirm the trial-court judgment. (4)

 

John Powers, Justice

Before Justices Powers, Aboussie and B. A. Smith

Affirmed

Filed: October 9, 1997

Do Not Publish

1. Section 2(a) of article 42.03 provides as follows:

 

In all criminal cases, the judge of the court in which the defendant was convicted shall give the defendant credit on his sentence for the time that the defendant has spent in jail in said cause, other than confinement served as a condition of community supervision, from the time of his arrest and confinement until his sentence by the trial court.

 

Tex. Code Crim. Proc. Ann. Art. 42.03, 2(a) (West Supp. 1997).

2. Section 5(b) of article 42.12 provides as follows:

 

On violation of a condition of community supervision . . . the defendant may be arrested and detained . . . . The defendant 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) (West Supp. 1997).

3. Section 5(b) of article 42.12 provides as follows:

 

After an adjudication of guilt, all proceedings, including . . . defendant's appeal continue as if the adjudication of guilt had not been deferred.

 

Tex. Code Crim. Proc. Ann. art. 42.12, 5(b) (West Supp. 1997).

4. In Phynes v. State, 828 S.W.2d 1 (Tex. Crim. App. 1992), which was announced on February 26, 1992, the court stated that when a defendant attempts to appeal from a determination to proceed to adjudication, the proper disposition is to dismiss the appeal. However, on March 11, 1992, in Olowosuko v. State, 826 S.W.2d 940