Jordan, Melvin v. State ( 2002 )

Opinion issued November 7, 2002

In The

Court of Appeals

For The

First District of Texas  

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NO. 01-01-01049-CR

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MELVIN JORDAN, Appellant

V.

THE STATE OF TEXAS, Appellee

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On Appeal from the 178th District Court

Harris County, Texas

Trial Court Cause No. 845797

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O P I N I O N

On September 7, 2000, appellant, Melvin Jordan, pleaded guilty to aggravated sexual assault of a child. In accordance with the terms of a plea bargain agreement, the trial court deferred adjudication of guilt and placed appellant on community supervision for 10 years. On April 17, 2001, the State filed a motion to adjudicate guilt, to which appellant entered a plea of not true to committing the offense of driving while intoxicated. After a hearing, the trial court found appellant guilty and assessed punishment at confinement for 10 years.

In points of error one through four, appellant challenges the validity of the trial court's entry of judgment in the original proceeding. In points of error five and six, appellant challenges the constitutionality of the sentence assessed in the adjudication proceeding.

Validity of Guilty Plea

In his first and second points of error, appellant complains that his state and federal constitutional rights to compulsory process ⁽¹⁾ were violated when the trial court proceeded to judgment because, under article 1.15 of the Code of Criminal Procedure, he was denied the right to put on any evidence after entering his guilty plea. In appellant's third and fourth points of error, he contends that the trial court erred in proceeding to judgment because the record does not show that he waived his right to compulsory process.  

The Court of Criminal Appeals has addressed the issue of whether, on appeal from an adjudication of guilt, a defendant may complain of error in the original plea proceeding. See Manuel v. State, 994 S.W.2d 658, 659 (Tex. Crim. App. 1999). In that case, the court held as follows:   

[A] defendant placed on deferred adjudication community supervision may raise issues relating to the original plea proceeding, such as evidentiary sufficiency, only in appeals taken when deferred adjudication community supervision is first imposed. Certainly, it was not the Legislature's intent . . . to permit two reviews of the legality of a deferred adjudication order, one at the time deferred adjudication community supervision is first imposed and another when, and if, it is later revoked.

Id. at 661-62; see also Marshall v. State, 995 S.W.2d 880, 881 (Tex. App.--Houston [1st Dist.] 1999, pet. ref'd).  

Here, appellant pleaded guilty and received deferred adjudication community supervision on September 7, 2000. The following year, on April 17, 2001, his guilt was adjudicated and his community supervision was revoked. Appellant could have raised his points of error in an appeal from the order placing him on deferred adjudication. We do not have jurisdiction to review his first four points of error.  

Constitutionality of the Sentence

In his fifth and sixth points of error, appellant complains that the sentence imposed is not proportional to the offense committed and that it constitutes cruel and unusual punishment in violation of the Eighth ⁽²⁾ and Fourteenth ⁽³⁾ Amendments and the Texas Constitution ⁽⁴⁾.

Appellant failed to preserve his fifth and sixth points of error by not objecting at trial. Tex. R. App. P. 33.1; see Idowu v. State, 73 S.W.3d 918, 923 nn.8-9 (Tex. Crim. App. 2002); Steadman v. State, 31 S.W.3d 738, 742 (Tex. App.--Houston [1st Dist.] 2000, pet. ref'd); Solis v. State, 945 S.W.2d 300, 301-02 (Tex. App.--Houston [1st Dist.] 1997, pet. ref'd). Thus, he waived points of error five and six on appeal.

  Conclusion

We affirm the judgment of the trial court.

Frank G. Evans

Justice

Panel consists of Justices Hedges, Keyes, and Evans. ⁽⁵⁾

Do not publish. Tex. R. App. P. 47

1. U.S. Const. amend. VI, XIV; Tex. Const. art. I, §§10, 29.

2.

U.S. Const. amend. VIII.

3.

U.S. Const. amend. XIV.

4.

Tex. Const. art. I, §13.

5.

The Honorable Frank G. Evans, retired Chief Justice, Court of Appeals, First District of Texas at Houston, participating by assignment.