Freddie Lee Garner v. State ( 2005 )

In The

Court of Appeals

Ninth District of Texas at Beaumont

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NO. 09-05-113 CR ____________________

FREDDIE LEE GARNER, Appellant

V.

THE STATE OF TEXAS, Appellee

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On Appeal from the Criminal District Court Jefferson County, Texas Trial Cause No. 83485

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MEMORANDUM OPINION

Appellant, Freddie Lee Garner, appeals from the trial court's judgment adjudicating him guilty of the July 15, 2000 offense of Aggravated Sexual Assault of a Child. See Tex. Pen. Code Ann. § 22.021 (Vernon Supp. 2005). ⁽¹⁾ In his sole issue, Garner contends that his plea was not entered voluntarily or knowingly in the original plea proceeding due to ineffective assistance of counsel. Because his notice of appeal was not timely, we have no jurisdiction over the trial court's judgment. We dismiss this appeal for want of jurisdiction.

Garner was indicted for the July 15, 2000 felony offense of Aggravated Sexual Assault of a Child. Id. Under the Penal Code, the punishment range for this offense is a minimum sentence of five years to a maximum of life in prison. See Tex. Pen. Code Ann. §12.32 (Vernon 2003). In addition to imprisonment, an individual found guilty of Aggravated Sexual Assault of a Child may be punished with a fine not to exceed $10,000. Id.

Garner pled guilty to the indictment without the benefit of a plea bargain with the State. On September 10, 2001, the trial court deferred all proceedings and placed Garner on community supervision for ten years. The court also assessed a fine of $1,000.

On December 28, 2004, the State filed a motion to revoke Garner's community supervision alleging that he violated the terms of his community supervision by: (1) failing to report to his probation officer as scheduled; (2) failing to attend court-ordered rehabilitation, treatment, residential programs, counseling and various sex offender group sessions; (3) failing to perform community service work as required; and (4) failing to pay fees as directed by the court. After a hearing, in which Garner pled "true" to allegations one and two in the Motion to Revoke Unadjudicated Probation, the trial court found Garner guilty and sentenced him to confinement in state prison for a term of fifteen years. Garner filed a notice of appeal on March 14, 2005. The trial court certified that this was not a plea-bargain case and that Garner had the right to appeal.

Before we reach the merits of an appeal, we must have jurisdiction over the appeal. Our jurisdiction over this appeal depends on whether Garner filed a timely notice of appeal.

Article 44.01(j) of the Texas Code of Criminal Procedure is relevant to determining Garner's right to appeal. See Tex. Code Crim. Proc. Ann. art. 44.01(j) (Vernon Supp. 2005). ⁽²⁾ Article 44.01(j) states that "[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." ⁽³⁾ Id. Article 44.02 grants the defendant the right to appeal in a criminal case. See Tex. Code Crim. Proc. Ann. art. 44.02 (Vernon 1979 & Supp. 2005).

Thus, Garner had a right to appeal his sentence. In a non-death penalty criminal case, "appeal is perfected by timely filing a sufficient notice of appeal." Tex. R. App. P. 25.2(b). Under Rule 26.2(a), absent a timely filed motion for new trial, the notice of appeal must be filed within thirty days after sentence is imposed or suspended in open court, or after the day the trial court enters an appealable order. Tex. R. App. P. 26.2(a). Garner did not file a motion for new trial in this case. Thus, Garner's notice of appeal under Rule 26.2(a) was due to be filed on or before October 10, 2001, thirty days after his original plea. Id.

Garner's appeal stems from complaints of ineffective assistance of counsel associated with his plea of guilty to Aggravated Sexual Assault of a Child. Following his plea, the court imposed deferred adjudication community supervision. The Court of Criminal Appeals determined that the legislature's "intent in enacting Article 44.01(j) was to permit defendants to appeal from deferred adjudication community supervision to the same extent (i.e., with the same rights and restrictions) as defendants are permitted to appeal from 'regular' community supervision." Manuel v. State, 994 S.W.2d 658, 661 (Tex. Crim. App. 1999) (citations omitted).

Because Garner's complaint of ineffective assistance of counsel asserted here arises from his original plea proceeding, rather than from proceedings associated with the revocation of his community supervision, he was required to raise this complaint in an appeal from the trial court's order placing him on deferred adjudication. See id. at 660-62; Cozzi v. State, 160 S.W.3d 638, 640 (Tex. App. - Fort Worth 2005, pet. ref'd ); Webb v. State, 20 S.W.3d 834, 835-36 (Tex. App. - Amarillo 2000, no pet.). However, Garner did not file a notice of appeal until March 14, 2005, following the court's revocation of his placement on community supervision. Garner's failure to file a timely notice of appeal from the trial court's order in accordance with Rule 26.2(a) deprives us of jurisdiction over his appeal. Tex. R. App. P. 26.2(a). Therefore, we dismiss Garner's appeal for want of jurisdiction.

APPEAL DISMISSED.

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HOLLIS HORTON

Justice

Submitted on September 15, 2005

Opinion Delivered December 7, 2005

Do Not Publish

Before McKeithen, C.J., Gaultney and Horton, JJ.

1.

Although the statute was amended after the commission of the alleged offense, there were no changes in the section relevant to our analysis of this appeal. Compare Act of May 28, 1999, 76th Leg., R.S., ch. 417, §1, 1999 Tex. Gen. Laws 2752 (the statutory provisions in effect at the time of this offense).

2. Although the statute was amended after commission of the alleged offense, there were no changes in the section relevant to our analysis of this appeal. Compare Act of May 30, 1987, 70th Leg., R.S., ch. 382, §1, 1987 Tex. Gen. Laws 1884 (the statutory provisions in effect at the time of this offense).

3. Article 44.01(j) references Article 42.12 Sec. 3d(a); however, that section was recodified and is now located in Article 42.12, Sec. 5(a). See Act of May 29, 1989, 71st Leg., R.S., ch. 785, § 4.17, 1989 Tex. Gen. Laws 3500. Article 44.01(j) referring to Art. 42.12, Sec. 3d(a), has not been amended to refer to the recodification. See Dillehey v. State, 815 S.W.2d 623, 624 n.1 (Tex. Crim. App. 1991).