David Tullis Luke v. State of Texas--Appeal from 183rd District Court of Harris County

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NO. 12-01-00124-CR










On October 19, 1993, David Tullis Luke ("Appellant") pleaded no contest to a charge of indecency with a child pursuant to a plea bargain. On that same day, the trial court deferred a finding of guilt and placed Appellant on community supervision for a period of ten years in accordance with the State's recommendation. On July 24, 2000, the State filed a First Amended Motion to Adjudicate Guilt. After a hearing on the State's motion on December 7, 2000, the trial court entered a finding of guilt. After preparation of a pre-sentence report, the trial court held a punishment hearing on February 8, 2001. At the close of the hearing, the trial court sentenced Appellant to seven years of confinement. On March 6, 2001, Appellant filed a general notice of appeal. On March 23, 2001, Appellant filed an amended notice of appeal wherein he stated that "(1) the appeal is for jurisdictional defects, (2) the substance of the appeal was raised by written motion and ruled on before trial, or (3) the trial court granted permission to appeal."

Appellant brings six issues in appeal. In issue one, he challenges the constitutionality of article 1.15 of the Texas Code of Criminal Procedure, (1) arguing that this provision does not permit the defendant to call witnesses during a hearing on a plea of guilty thereby denying the defendant's federal constitutional right to compulsory process. In issue two, he makes the same argument as in issue one under the Texas Constitution. In issues three and four, he argues that the trial court violated the federal and state constitutions respectively by proceeding to a judgment of guilt where the record does not show a voluntary and intelligent waiver of his right to compulsory process.

The State responds that because these complaints concern the original deferred adjudication proceeding, Appellant was required to bring these complaints at the time deferred adjudication was first imposed. We agree. Appellant's first four issues relate to the original deferred adjudication proceeding on October 19, 1993. Thus, Appellant was required to assert these issues on appeal within thirty days after he was placed on community supervision in October of 1993. Tex. R. App. P. 26.2(a)(1) (where no motion for new trial is filed, defendant must appeal within thirty days after sentence is imposed or suspended); Daniels v. State, 30 S.W.3d 407, 408 (Tex. Crim. App. 2000) (". . . a defendant placed on deferred adjudication has to appeal issues relating to the original deferred adjudication proceeding when deferred adjudication is first imposed"); see Manuel v. State, 994 S.W.2d 658, 661-62 (Tex. Crim. App. 1999).

Further, we note, as the State does, that Appellant's first notice of appeal failed to comply with Texas Rule of Appellate Procedure 25.2(b)(3). Although Appellant amended his notice of appeal on March 23, 2001, this notice of appeal was not filed within thirty days of the imposition of sentence. Once thirty days passed after the imposition of sentence, i.e., March 12, 2001, and a proper notice of appeal had not been filed in the trial court, this court had no jurisdiction over this case. See State v. Riewe, 13 S.W.3d 408, 413-14 (Tex. Crim. App. 2000). An out-of-time amendment to a notice of appeal may not confer jurisdiction on an appellate court where there is none. Id. Also, Appellant's appeal is not related to jurisdictional issues nor does it concern a pre-trial motion. In addition, nothing in the record supports Appellant's contention that the trial court granted permission to appeal. For all of these reasons, issues one through four are overruled.

In issue five, Appellant contends that his sentence constitutes cruel and unusual punishment under the United States Constitution. In issue six, Appellant makes the same argument as in issue five under the Texas Constitution. Appellant failed to object that the sentence assessed by the trial court constitutes cruel and unusual punishment. Therefore, Appellant has waived appellate review of that issue. Tex. R. App. P. 33.1 (As a prerequisite to presenting a complaint for appellate review, the record must show that an appellant made a timely, specific objection and obtained an adverse ruling.); Rhoades v. State, 934 S.W.2d 113, 120 (Tex. Crim. App. 1996) (failure to object on grounds of cruel and unusual punishment waives claim that sentence violated prohibition in Texas Constitution); Curry v. State, 910 S.W.2d 490, 497 (Tex. Crim. App. 1995) (failure to make specific objection at trial waives Eighth Amendment claim of cruel and unusual punishment). Accordingly, issues five and six are overruled.

The judgment of the trial court is affirmed.


Opinion delivered February 6, 2002.

Panel consisted of Davis, C.J., Worthen, J., and Griffith, J.


1. Article 1.15 provides:


No person can be convicted of a felony except upon the verdict of a jury duly rendered and recorded, unless the defendant, upon entering a plea, has in open court in person waived his right of trial by jury in writing in accordance with Articles 1.13 and 1.14; provided, however, that it shall be necessary for the state to introduce evidence into the record showing the guilt of the defendant and said evidence shall be accepted by the court as the basis for its judgment and in no event shall a person charged be convicted upon his plea without sufficient evidence to support the same. The evidence may be stipulated if the defendant in such case consents in writing, in open court, to waive the appearance, confrontation, and cross examination of witnesses, and further consents either to an oral stipulation of the evidence and testimony or to the introduction of testimony by affidavits, written statements of witnesses, and any other documentary evidence in support of the judgment of the court. Such waiver and consent must be approved by the court in writing, and be filed in the file of the papers of the cause.


Tex. Code Crim. Proc. Ann. art. 1.15 (Vernon Supp. 2001).