Chuka Emeka Ogele v. State ( 2006 )

                                            NUMBER 13-05-458-CR

                                      COURT OF APPEALS

                            THIRTEENTH DISTRICT OF TEXAS

                              CORPUS CHRISTI - EDINBURG

CHUKA EMEKA OGELE,              Appellant,

                                                             v.

THE STATE OF TEXAS,                                                                              Appellee.

                                On appeal from the 351st District Court

                                            of Harris County, Texas.

                                 MEMORANDUM OPINION

                          Before Chief Justice Valdez and Justices Rodriguez and Garza

Memorandum Opinion by Justice Rodriguez

Appellant, Chuka Emeka Ogele, was charged by indictment with possession with intent to deliver a controlled substance, namely dihydrocodeinone.^[1]  See Tex. Health & Safety Code Ann. ' 481.114 (Vernon 2003).  Pursuant to a plea bargain agreement, appellant pled guilty.  The trial court deferred adjudicating appellant guilty, placed him on probation for six years, and fined him $1,000.  Subsequently, the State filed a motion to adjudicate guilt based on appellant's alleged violations of the terms of his probation. Appellant pled not true to the allegations in the State's motion.  Following a hearing, the trial court found the allegations to be true, adjudicated appellant guilty, and sentenced appellant to ten years' confinement in the Texas Department of Criminal Justice-Institutional Division.  The trial court has certified that this case is not a plea-bargain case, and the defendant has the right of appeal.  See Tex. R. App. P. 25.2(a)(2).  By his sole issue, appellant contends the indictment is fundamentally defective and failed to confer jurisdiction on the trial court.^[2]  We dismiss the appeal for want of jurisdiction.

I.  Background

All issues of law presented by this case are well settled, and the parties are familiar with the facts.  Therefore, we will not recite the law or the facts except as necessary to advise the parties of the Court=s decision and the basic reasons for it.  See Tex. R. App. P. 47.4.

II.  Indictment

By his sole issue, appellant contends the indictment was fundamentally defective and failed to confer jurisdiction on the trial court because it failed to specify the concentration of the dihydrocodeinone in question.  The State asserts appellant=s contention is actually a challenge to a substance defect in the indictment.  We agree.

The Texas Court of Criminal Appeals has held that a "substance defect is no longer considered to be one of a 'fundamental' nature, in the sense that fundamental meant no jurisdiction was conferred, and the conviction on such a charging instrument would not be reversed for a lack of jurisdiction in the trial court."  Studer v. State, 799 S.W.2d 263, 271 n.11 (Tex. Crim. App. 1990) (en banc).  Therefore, assuming without deciding that the indictment contained a substance defect, it did not deprive the trial court of jurisdiction.  Id.  Thus, rather than raising a jurisdictional issue on appeal, appellant raises a nonjurisdictional question.

Pursuant to Manuel v. State, 994 S.W.2d 658 (Tex. Crim. App. 1999), a defendant who is placed on deferred adjudication probation may raise nonjurisdictional issues relating to the original plea proceeding only in appeals taken when deferred adjudication is first imposed.  Id. at 661.  Here, appellant failed to appeal the alleged substance defect in the indictment when his deferred adjudication was first imposed; appellant waited until his community supervision was revoked to appeal this issue.  Therefore, this Court is without jurisdiction to consider the appeal.

III.  Conclusion

Accordingly, we dismiss the appeal for want of jurisdiction.

NELDA V. RODRIGUEZ

Justice

Do not publish.

Tex. R. App. P. 47.2(b).

Memorandum Opinion delivered and

filed this 15th day of June, 2006.

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^[1]The indictment in this case charged that appellant, "on or about SEPTEMBER 2, 2004, did then and there unlawfully, knowingly possess with intent to deliver a controlled substance, namely, DIHYDROCODEINONE, weighing more than 28 grams and less than 200 grams by aggregate weight, including any adulterants and dilutants."

^[2]We note that appellant has filed a supplemental letter brief. However, to the extent appellant attempts to raise additional contentions in his supplemental brief, the briefing is inadequate.  See Tex. R. App. P. 38.1(h) (providing that appellant=s brief must contain a clear and concise argument for the contentions made, with appropriate citations to authorities and to the record). Therefore, such contentions are not before us.