Dameun Tyrell Heard v. State of Texas ( 2001 )

In The

Court of Appeals

Ninth District of Texas at Beaumont

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NO. 09-00-532 CR NO. 09-00-533 CR ____________________

DAMEUN TYRELL HEARD, Appellant

V.

THE STATE OF TEXAS, Appellee

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On Appeal from the Criminal District Court Jefferson County, Texas Trial Cause Nos. 79963 and 81237

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OPINION  

These separate appeals are consolidated in this opinion as they raise the identical issue. In each case, appellant was placed on unadjudicated community supervision following a negotiated plea to the court. In each case, the trial court followed the punishment recommendation and placed appellant on unadjudicated community supervision for eight (8) years. Less than a year later, the State filed separate motions to revoke the unadjudicated community supervisions. At the adjudication proceeding, appellant pleaded true to several alleged violations of his community supervision, was adjudicated guilty in each case, and sentenced to confinement in the Institutional Division of the Texas Department of Criminal Justice for terms of ten (10) years in each case. The single issue in each case reads as follows: "In viewing the totality of the facts and circumstances surrounding this case, did Appellant receive effective assistance of counsel, and was Appellant's plea knowing and voluntary?" The brief of appellate counsel is unclear as to whether his focus is on the original plea proceeding or the subsequent hearing on the State's motion to adjudicate.

The records before us reflect that the trial court did not grant permission to appeal. The general notice of appeal filed by appellant in each case does not comply with Tex. R. App. P. 25.2(b)(3), as it must in order for appellant to prosecute his appeals from the plea-bargained unadjudicated community supervision orders. Cooper v. State, 45 S.W.3d 77, 81 (Tex. Crim. App. 2001); Watson v. State, 924 S.W.2d 711, 714-15 (Tex. Crim. App. 1996). ⁽¹⁾ Absent proper notices of appeal, we are deprived of jurisdiction to review even matters that could have been raised had the notice been sufficient. Id.; Davis v. State, 870 S.W.2d 43, 46-47 (Tex. Crim. App. 1994).

Additionally, a defendant placed on unadjudicated community supervision may raise issues related to the original plea proceeding, such as ineffective assistance of counsel or evidentiary sufficiency, only in appeals taken when the unadjudicated community supervision is imposed. Manuel v. State, 994 S.W.2d 658, 661 (Tex. Crim. App. 1999). Finally, any contention that either trial court error or ineffective assistance of counsel occurred because appellant was not provided the admonishments contained in Tex. Code Crim. Proc. Ann. art. 26.13 (Vernon 1989 & Supp. 2001) prior to his pleas of "true" at the adjudication hearing is entirely misplaced. The Texas Court of Criminal Appeals has expressly held article 26.13 does not apply in this context. Harris v. State, 505 S.W.2d 576, 578 (Tex. Crim. App. 1974). We therefore find no merit in the single appellate issue presented to us in both appeals. The issue is overruled, and the judgments and sentences of the trial court are affirmed.

AFFIRMED.

PER CURIAM

Submitted on September 28, 2001

Opinion Delivered October 10, 2001

Do Not Publish

Before Walker, C.J., Burgess and Gaultney, JJ.

1. The notice of appeal must specify that the appeal is for a jurisdictional defect, specify that the substance of the appeal was raised by written motion and ruled on before trial, or state the trial court granted permission to appeal. Tex. R. App. P. 25.2(b)(3).