Rhonda Vnice Parker v. State ( 2007 )

Dismissed and Memorandum Opinion filed June 21, 2007

Dismissed and Memorandum Opinion filed June 21, 2007.

In The

Fourteenth Court of Appeals

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NO. 14-06-00523-CR

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RHONDA VNICE PARKER, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 185th District Court

Harris County, Texas

Trial Court Cause No. 934628

M E M O R A N D U M    O P I N I O N

Appellant, Rhonda Vnice Parker, pleaded guilty to the lesser-included offense of possession of codeine in exchange for four years= deferred adjudication community supervision.  After she violated the conditions of her probation, appellant was found guilty and sentenced to three years= confinement and assessed a $400 fine.  In three points of error, appellant argues that the trial court committed reversible error because  (1) her deferred adjudication was invalid without a sworn motion for community supervision, (2) her guilty plea was involuntary because she did not file a sworn affidavit of her guilty plea and the record lacks a waiver of her right to a jury trial, and (3) she did not receive a free copy of the reporter=s record.  Because appellant=s complaints are untimely, we dismiss the appeal for want of jurisdiction.

In a bench trial in 2002, appellant pleaded guilty to possession of codeine in exchange for deferred adjudication.  At that time, appellant did not appeal any of the errors which she claims occurred in the original plea proceeding including the points of error she raises in this appeal: the validity of the sworn motion for community supervision, the voluntariness of her plea, and any deficiencies in the affidavit or the lack of a waiver.  Instead, appellant brings this appeal nearly four years later, waiting until her community supervision had been revoked and her adjudication of guilt formally made.

A defendant placed under deferred adjudication community supervision may raise issues relating to the original plea proceeding only in appeals taken when deferred adjudication is imposed and not after guilt is adjudicated.  Vidaurri v. State, 49 S.W.3d 880, 884 (Tex. Crim. App. 2001).  It was not the Legislature=s intent in enacting Article 44.01(j) of the Texas Code of Criminal Procedure to permit two reviews of the legality of the deferred adjudication order: one when deferred adjudication is first imposed, and another when and if it is later revoked.^[1] Manuel v. State, 994 S.W.2d 658, 662 (Tex. Crim. App. 1999).  The rule articulated in Manuel, permitting only one review of a deferred adjudication order, also applies to complaints that a guilty plea was involuntary.  See Hanson v. State, 11 S.W.3d 285, 288 (Tex. App.CHouston [14th Dist.] 1999, pet. ref=d) (holding that appellant could have appealed the order placing him on deferred adjudication and could have raised the voluntariness of his plea following his original plea hearing but not three years later when his community supervision was revoked).^[2]

Based on the holdings in Manuel and Hanson, appellant=s failure to object at the time of her original proceedings precludes us from now hearing the merits of her complaints.  Thus, we are without jurisdiction to consider points of error one and two.

In her third point of error, appellant contends she was denied her right, based on indigence, to a free reporter=s record. When appellant filed her notice of appeal, she requested a free record be provided. The trial court found appellant indigent for purposes of preparation of the clerk=s record and reporter=s record. Therefore, appellant should have been provided a free record.  The trial court failed to order the court reporter to prepare the reporter=s record without cost to appellant.

After we were informed appellant had not made arrangements for payment for the reporter=s record, the clerk of this court notified appellant we would consider and decide those issues that do not require a reporter=s record unless appellant, within 15 days of notice, provided this court with proof of payment for the record.  See Tex. R. App. P. 37.3(c).  Appellant filed no reply.  Accordingly, on October 19, 2006, we ordered appellant=s retained counsel to file a brief in this appeal without benefit of a reporter=s record.  Counsel filed a brief in which appellant complained she was wrongly denied the preparation of a reporter=s record without cost. 

On January 5, 2007, the State filed a motion to grant the court reporter additional time to file the record in this appeal.  In granting the motion, we ordered the record to be filed on or before February 28, 2007, and stated the appeal would then proceed as if the failure to act had not occurred.  Tex. R. App. P. 44.4.  Appellant was informed she could file a supplemental brief to address issues from the hearing within 30 days after the reporter=s record was filed.^[3] Tex. R. App. P. 38.7.  The clerk=s and reporter=s records have beent filed; appellant failed to file a supplemental brief; and appellant=s third issue is moot.

Accordingly, we dismiss the appeal for lack of jurisdiction.

/s/      J. Harvey Hudson

Justice

Judgment rendered and Memorandum Opinion filed June 21, 2007.

Panel consists of Chief Justice Hedges and Justices Hudson and Guzman.

Do Not Publish C Tex. R. App. P. 47.2(b).

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^[1]  Article 44.01(j) reads, in relevant part, that A[t]he defendant's right to appeal under Article 44.02 may be prosecuted by the defendant where the punishment assessed is in accordance with Subsection (a), Section 3d, Article 42.12 of this code, as well as any other punishment assessed in compliance with Article 44.02 of this code.@   See Dillehey v. State, 815 S.W.2d 623, 624 n.1 (Tex. Crim. App. 1991) (Article 44.01(j), although literally referring to Article 42.12, ' 3d (a), actually refers to Article 42.12, ' 5 (a)).  Article 44.02 provides, in relevant part, that A[a] defendant in any criminal action has the right to appeal under the rules hereinafter prescribed . . .@

^[2]  Additionally, complaints must be made to the trial court by a timely request, objection, or motion.  Tex. R. App. P. 33.1(a).

^[3]  The reporter=s record was filed January 11, 2007.