Herbert Paul Smith v. State ( 2005 )

IN THE

TENTH COURT OF APPEALS

 

No. 10-04-00178-CR

Herbert Paul Smith,

                                                                      Appellant

 v.

The State of Texas,

                                                                      Appellee

From the 405th District Court

Galveston County, Texas

Trial Court No. 96CR0243

MEMORANDUM  Opinion

          Pursuant to a plea bargain, Herbert Paul Smith pleaded guilty to indecency with a child, and the court placed him on deferred adjudication community supervision for six years.  The State filed a motion to adjudicate.  Smith pleaded “true” to one of the allegations in the motion, and after a hearing, the court sentenced Smith to ten years’ imprisonment.  Smith presents ten points of error challenging both the original guilty plea and the subsequent adjudication of his guilt.  We will affirm.

          Smith contends in his seventh and eighth points that his original guilty plea was involuntary.  However, with one exception not applicable to this case, a defendant who was originally placed on deferred adjudication community supervision may not challenge the voluntariness of his original guilty plea after the subsequent adjudication of his guilt.  See Jordan v. State, 54 S.W.3d 783, 785-86 (Tex. Crim. App. 2001); Martinez v. State, No. 10-03-00201-CR, 2005 Tex. App. LEXIS 1488 at **1-3 (Tex. App.—Waco Feb. 23, 2005, pet. filed).  Accordingly, we overrule Smith’s seventh and eighth points.

          Smith contends in his first six points that he received ineffective assistance of counsel from trial counsel during the adjudication proceeding.  However, a defendant is statutorily barred from complaining on appeal of issues relating to the adjudication of guilt process. See Tex. Code Crim. Proc. Ann. art. 42.12, § 5(b) (Vernon Supp. 2004–2005); Connolly v. State, 983 S.W.2d 738, 741 (Tex. Crim. App. 1999).  This prohibition has been expressly applied to ineffective assistance claims.  See Cooper v. State, 2 S.W.3d 500, 504 (Tex. App.—Texarkana 1999, pet. ref’d); Griffin v. State, 936 S.W.2d 706, 707 (Tex. App.—Fort Worth 1996, no pet.) (per curiam). Accordingly, we dismiss Smith’s first six points.  See Roberts v. State, 141 S.W.3d 685, 685-86 (Tex. App.—Waco 2004, pet. ref’d) (per curiam).

          Smith contends in his ninth point that the judge originally assigned to hear the motion to adjudicate was disqualified because the complainant in this case is her niece.  He contends in his tenth point that the judge who ultimately presided over the hearing on the State’s motion to adjudicate was disqualified because the judge’s son was a prosecutor in the district attorney’s office when Smith’s son was prosecuted for murder in 1996.  As with Smith’s ineffective assistance claims however, these issues relate to the adjudication of guilt process and cannot be raised on appeal.[1] See Tex. Code Crim. Proc. Ann. art. 42.12, § 5(b); Connolly, 983 S.W.2d at 741.  Accordingly, we dismiss Smith’s ninth and tenth points.  See Roberts, 141 S.W.3d at 685-86.

We affirm the judgment.

FELIPE REYNA

Justice

Before Chief Justice Gray,

Justice Vance, and

Justice Reyna

(Chief Justice Gray concurs with a note)*

Affirmed

Opinion delivered and filed July 13, 2005

Do not publish

[CR25]

          *(“Having dismissed all of Smith’s issues, thus not reaching the merits of any issue, I continue to believe we err by affirming a judgment we have not reviewed in any way.  But affirming the judgment is what the majority has done in the past so I am bound by that procedure.”)

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[1]           We also note that the record contains no evidence to support Smith’s unsubstantiated allegations regarding these judges.